Peters v Sat Katar Co Ltd.

The unqualified discretion to extend time for an Employment Appeal Tribunal appeal must be exercised judicially. The tribunal must weigh all relevant circumstances. Guidance that time limits are relaxed only exceptionally must not become a rigid rule.

Where an appeal notice is posted in good time, Employment Appeal Tribunal Rules 1993 permit an appellant to assume ordinary postal delivery. An unrepresented litigant, who has received no advice to check for an acknowledgement, may reasonably rely on that assumption for a short period. Postal loss outside the litigant’s control and prompt action on discovering it are material factors favouring an extension.

Ms Peters brought complaints of unfair dismissal and sex discrimination. The Employment Tribunal dismissed them and later refused a review.

She posted a notice of appeal to the Employment Appeal Tribunal well before the 42-day deadline. It was not received. When she discovered this nearly four weeks later, she immediately faxed a copy, which was received 11 days late. The Registrar refused an extension of time. The Employment Appeal Tribunal, constituted by His Honour Judge Peter Clark, dismissed her appeal from that refusal.

The central issue was whether the Registrar and the Employment Appeal Tribunal had lawfully exercised the discretion to extend time in the circumstances of an unrepresented appellant whose notice had apparently been lost in the post.

Appeal allowed unanimously. Peter Gibson LJ gave the judgment, with which Keene LJ and Sir Martin Nourse agreed.

1. Rule 37(1) of the Employment Appeal Tribunal Rules 1993 confers an unqualified discretion to extend time. The guidance in United Arab Emirates and Abdelghafar [1995] ICR 65, approved in Aziz [2000] IRLR 111, was a proper starting point. It required a principled assessment of all relevant factors. Its reference to rare and exceptional cases could not be applied as an inflexible rule.

2. Rules 35(1) and 35(3) permitted Ms Peters to post the notice and to assume its ordinary delivery. In the absence of information requiring an acknowledgement check, an unrepresented litigant with no experience of the Appeal Tribunal could reasonably rely on that assumption for the period involved. The authority concerning solicitors’ checking systems did not impose the same expectation on her. The loss of the notice in the post, through no fault of hers, was a relevant consideration. She acted without delay once informed that it had not arrived.

3. The Registrar’s standard-form reasons failed to consider those matters. They wrongly treated Ms Peters like a person who had delayed until the last moment or was ignorant of the time limit. The Employment Appeal Tribunal likewise failed to identify those errors. The argument based on section 7 of the Interpretation Act 1978 did not establish timely service, since actual non-delivery was known; however, the postal assumptions in the Rules remained material to the discretionary decision.

4. The only proper exercise of the discretion was to grant the extension. The Court set aside the orders of the Registrar and the Employment Appeal Tribunal without remittal. It allowed the appeal with costs.

As practical obiter, the Court urged the Employment Appeal Tribunal to provide clearer guidance to litigants who post appeal notices and to reconsider the use of standard recitals that overlook an applicant’s particular circumstances.

• Court of Appeal (Civil Division): Allowed Ms Peters’s appeal, set aside the decisions below, and granted the extension of time: [2003] EWCA Civ 943.
• Employment Appeal Tribunal: His Honour Judge Peter Clark dismissed Ms Peters’s appeal from the Registrar’s refusal to extend time.
• Registrar of the Employment Appeal Tribunal: Refused an extension of time to institute the appeal.
• Employment Tribunal: Dismissed the complaints of unfair dismissal and sex discrimination, and later refused a review.