Logan-Salton v Calderdale MBC

Applications to extend time for appealing in employment proceedings require a strict and structured assessment. The tribunal or court should identify the default, determine whether there is a good excuse, and ask whether exceptional circumstances justify the extension. Solicitor error does not automatically excuse delay. The decision-maker must also balance the explanation for delay against prejudice to the other party. Where the only remedy sought would inevitably be unavailable even if the underlying complaint succeeded, proportionality may provide an additional reason for refusing permission. Delay caused partly by representatives remains capable of prejudicing the opposing party and need not be visited on that party.

The applicant was dismissed by Calderdale Metropolitan Borough Council and brought an unfair dismissal complaint. The Employment Tribunal struck out his Originating Application for want of prosecution under rule 13(2)(f) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993.

The applicant failed to appeal within time. The EAT Registrar refused an extension, and the President of the EAT dismissed his appeal against that refusal. The applicant then sought permission from the Court of Appeal to appeal out of time against the President’s order. The central issues were whether the delay was adequately explained, whether Calderdale suffered prejudice, and whether the proposed appeal had any realistic utility given that reinstatement was the only remedy sought.

1. Application dismissed. There was no real prospect of success on any proposed ground and no other compelling reason for the appeal to proceed.
2. The strict approach applicable to employment time limits was justified. The relevant inquiry required an explanation for the default, consideration of whether that explanation amounted to a good excuse, and consideration of whether exceptional circumstances justified extending time. The applicant’s delay remained inadequately explained, particularly for the period after he had learned that an order striking out his application was likely.
3. Responsibility attributable to solicitors did not wholly excuse the applicant. The court had to balance the explanation for delay, including any professional fault, against the position of the respondent. Calderdale had not caused the delay and was entitled to rely on evidential prejudice arising from the passage of time.
4. Ignorance of the applicable appeal time limit was not a complete excuse, especially where the applicant had legal representation and previous experience of the EAT. The EAT President was entitled to take the relevant circumstances into account.
5. The proportionality reasoning provided an independent and compelling consideration. Even assuming that Calderdale had acted wrongly by proceeding with the disciplinary hearing in the applicant’s absence, the applicant would not obtain reinstatement, the only remedy sought, in view of the conduct disclosed by his criminal convictions. The proposed appeal therefore lacked practical utility.
6. An associated application for disclosure of documents also failed because it depended on the unsuccessful application for permission to appeal.

• Employment Tribunal: Originating Application struck out for want of prosecution on 24 June 1999 under rule 13(2)(f) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993.
• EAT Registrar: Application for an extension of time to appeal refused on 9 May 2000.
• Employment Appeal Tribunal: Appeal dismissed by the President, Mr Justice Lindsay, on 26 June 2001.
• Court of Appeal (Civil Division): Permission to appeal out of time refused and application dismissed.