Shittu v Manchester City Council

On an application to extend time for an appeal to the Employment Appeal Tribunal, the applicant must explain the default, show that the explanation provides a good excuse, and identify exceptional circumstances justifying an extension. The merits usually carry little weight. A pending application for review does not suspend or extend the appeal period. A party who pursues both remedies must comply with the prescribed time limit for appealing. The generous 42-day period under the Employment Appeal Tribunal Rules 1993 is very rarely extended, particularly in industrial relations cases. Gross delay, without a sufficient explanation or a realistic prospect of success, justified refusal of an extension.

The applicant had brought employment proceedings against the respondent alleging unfair dismissal, harassment and victimisation. The Employment Tribunal dismissed the claims. It later rescinded the discrimination strike-out for procedural mishap but confirmed dismissal of the discrimination and unfair dismissal claims.

The applicant lodged his appeal more than 600 days out of time. The Registrar refused an extension under rule 3(2) of the Employment Appeal Tribunal Rules 1993. The Employment Appeal Tribunal dismissed his appeal from that refusal. The applicant sought permission to appeal out of time to the Court of Appeal, arguing that the procedural mishap and his pending review application justified the delay.

1. Application dismissed. Lord Justice Peter Gibson refused permission to appeal out of time.
2. On an application for an extension of time, the relevant questions are:
   1. what is the explanation for the default;
   2. whether it provides a good excuse; and
   3. whether exceptional circumstances justify the extension.
   This guidance from United Arab Emirates v Abdelghafar [1995] ICR 65 had been approved by this court in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111.
3. The merits of the proposed appeal usually have little weight on an extension application. A party who applies for a review is not obliged to appeal, but if the party chooses to pursue both remedies, the review does not justify ignoring the appeal time limit. The appeal must be lodged within the 42-day period prescribed by rule 3(2), save in exceptional circumstances.
4. The applicant knew of the adverse Tribunal decision in May 2000, yet waited nearly 16 months before seeking to appeal. The possible failure of his representative to pass on correspondence was at most a partial excuse. The earlier procedural mishap did not remove the fact of substantial delay.
5. There was no substantial ground giving the proposed appeal a real prospect of success, and no other compelling reason to allow it to proceed. The Employment Appeal Tribunal had not erred in upholding the Registrar’s exercise of discretion. Order: application dismissed.

• Employment Tribunal: dismissed the claims. On review, it rescinded the discrimination strike-out for procedural mishap but confirmed dismissal of the discrimination and unfair dismissal claims.
• Employment Appeal Tribunal: the Registrar refused an extension of time under rule 3(2) of the Employment Appeal Tribunal Rules 1993; His Honour Judge Peter Clark dismissed the appeal from that refusal.
• Court of Appeal (Civil Division): refused permission to appeal out of time and dismissed the application.