Morrison v Hillcrest Care Ltd.

Procedural time limits for appealing an Employment Appeal Tribunal decision may be enforced against represented and unrepresented litigants alike. An extension requires a full, honest and acceptable explanation and, absent exceptional circumstances, the time limit may properly be insisted upon. Delayed legal advice, retention of papers by a solicitor, lack of representation, stress, or the merits of the underlying appeal will not ordinarily justify an extension where the appellant knew, or should have known, the deadline. Convention rights to a fair hearing do not prevent reasonable procedural time limits.

The appellant had been dismissed for gross misconduct after allowing a work colleague to smoke cannabis in his car outside his employer’s children’s home. An Employment Tribunal initially upheld his unfair-dismissal complaint. The Employment Appeal Tribunal allowed the employer’s appeal, remitting the case to the same tribunal, which then found the dismissal fair.

The appellant lodged a further appeal but failed to express dissatisfaction with the EAT judge’s preliminary opinion within the 28-day period under Rule 3(10) of the EAT Rules 1993. The Registrar refused an extension, and Judge Peter Clark dismissed the appeal from that refusal. The central issues were whether sufficient or exceptional grounds justified extending time and whether refusal infringed Article 6.

1. Application refused. The appellant could not show a real prospect of successfully challenging the EAT’s refusal to extend time, and there was no other compelling reason for the appeal to be heard.
2. The guidance in United Arab Emirates and Abdelghafar and Abbas (1995) ICR 65 on extending time for an out-of-time appeal was authoritative, having been expressly approved in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. An applicant must provide an acceptable explanation for delay. The appellant’s awareness of the time limit, delayed advice from a solicitor, and retention of papers did not amount to a proper excuse.
3. The procedural rules apply equally to represented and unrepresented litigants. The fact that the missed deadline prevented the appeal from being heard did not itself establish unfairness. The time allowed was relatively generous, and the appellant had been informed of the relevant rules and had legal representation before the EAT judge.
4. The merits of the underlying unfair-dismissal appeal could not justify an extension. The first tribunal decision had been corrected because the tribunal had misdirected itself in comparing the treatment of another employee. The tribunal’s later decision acknowledged that error.
5. Article 6 permits reasonable procedural time limits. Their enforcement in this case did not deprive the appellant of a fair hearing. No exceptional circumstances had been shown.

• Court of Appeal (Civil Division): refused permission to appeal.
• Employment Appeal Tribunal: Judge Peter Clark dismissed the appellant’s appeal against the Registrar’s refusal to extend time.
• EAT Registrar: refused the application for an extension of time.
• Employment Appeal Tribunal: allowed the employer’s appeal from the first Employment Tribunal decision and remitted the case.
• Employment Tribunal: initially upheld the unfair-dismissal complaint; on reconsideration, found the dismissal fair.