N'Dow v Homebase Ltd

An appellate court will interfere with a discretionary refusal to extend time only where the decision is plainly wrong or affected by a manifest defect of law. Under the Employment Appeal Tribunal Rules 1993, the 42-day limit is relaxed only in rare and exceptional cases. An applicant must provide a full, honest and acceptable explanation for the delay. Awareness of the time limit, a decision to pursue proceedings in another court, and a choice not to obtain legal advice will not ordinarily justify an extension.

The applicant had succeeded in claims against his former employer before an Employment Tribunal and received compensation for unfair dismissal and unlawful deductions. His application for review was dismissed. He lodged appeals to the Employment Appeal Tribunal outside the 42-day period prescribed by rule 3(2) of the Employment Appeal Tribunal Rules 1993.

The Employment Appeal Tribunal registrar refused an extension of time, and His Honour Judge Peter Clarke dismissed the applicant’s appeal. The applicant sought permission to appeal to the Court of Appeal, relying on alleged misdirection by a county court clerk and his status as a litigant in person.

1. Application dismissed. Permission to appeal was refused.
2. The Employment Appeal Tribunal judge had exercised a discretion on whether to extend time. The Court of Appeal would interfere only if the decision was plainly wrong or involved a manifest defect in law.
3. The applicable principles, stated in United Arab Emirates v Abdul Ghaffar [1995] ICR 65 and approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111, required a full, honest and acceptable explanation for delay. Relaxation of the time limit was reserved for rare and exceptional cases.
4. The applicant knew of the 42-day limit, which was a generous period. His decision to pursue county court proceedings, while not lodging an appeal to the Employment Appeal Tribunal, did not provide an acceptable explanation. His choice not to obtain legal advice because of cost did not make the case rare or exceptional.
5. There was no arguable error in the exercise of discretion and no prospect of persuading the Court of Appeal that the decision was clearly wrong.

• Court of Appeal (Civil Division): Permission to appeal refused and application dismissed.
• Employment Appeal Tribunal: Registrar refused an extension of time. His Honour Judge Peter Clarke dismissed the appeal against that refusal on 2 July 2002.
• Employment Tribunal: Compensation of £7,458.01 was awarded on 23 October 2001. An application for review was dismissed on 28 November 2001.