Woods v Suffolk Mental Health Partnership NHS Trust

An appeal to the Employment Appeal Tribunal is not properly instituted where the appellant supplies only part of the document containing the employment tribunal claim. The whole claim document must accompany the notice of appeal.

The Employment Appeal Tribunal may take a strict approach to its 42-day time limit. An extension is an indulgence granted only where the delay is fully explained and justified by exceptional circumstances. A litigant who waits until the final day bears the risk that a problem will make the appeal late. On appeal, the Court of Appeal may interfere with the exercise of that discretion only for an error of principle or an irrational decision.

The applicant brought employment tribunal proceedings against her former NHS employer for unfair dismissal and sought to add discrimination claims. The tribunal held that her employment contract had been frustrated, that she had not been dismissed and that the discrimination claims were out of time.

She attempted to appeal on the final day of the 42-day period but supplied only one of the three pages comprising her ET1 claim. A complete copy was lodged eight days late. The registrar and, on rehearing, HHJ Clark refused an extension of time.

The applicant renewed her request for permission to appeal to the Court of Appeal. The issues were whether supplying only part of the ET1 properly instituted the appeal and whether the Employment Appeal Tribunal had erred in refusing an extension.

1. Application for permission to appeal refused. Smith LJ, with whom Arden LJ agreed, held that the proposed appeal disclosed no arguable error of law. Ward LJ agreed in the result, although he considered the documentary issue less clear and would personally have extended time.

2. Rule 3(1)(B) of the Employment Appeal Tribunal Rules 1993 required service of the whole document on which the employment tribunal claim was made. This applied whether or not the claim used an ET1 form. The appeal tribunal might need every part of that document. Supplying only one of three pages therefore failed properly to institute the appeal. Ward LJ considered that the distinction between a claim and a claim form was arguable, but concluded that HHJ Clark could not be shown to have been plainly wrong.

3. An appeal from the Employment Appeal Tribunal to the Court of Appeal lay only on a point of law. The Court of Appeal could not exercise the extension discretion afresh. Intervention required an error in principle, such as reliance on an irrelevant factor, failure to consider a relevant factor, or an irrational decision.

4. The Employment Appeal Tribunal was entitled to apply its established strict approach to the 42-day limit. That period was generous, and an extension required the delay to be fully explained and justified by exceptional circumstances. This approach had been approved in Aziz v Bethnal Green City Challenge Company [2000] IRLR 111.

5. The mistake was genuine and the eight-day delay was short. Nevertheless, there was no adequate explanation for waiting until the final day after the review decision had arrived. A litigant may use the whole prescribed period but bears the risk of an unforeseen problem. HHJ Clark was entitled to find that the circumstances were not exceptional and to refuse an extension.

6. Strict application of the 42-day limit did not deny access to a court under article 6. An appellant enjoyed unfettered access throughout that period. The apparent weakness of the underlying appeal also provided no basis for permitting the procedural failure to be overcome.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was refused. The proposed challenge disclosed no arguable error of law in the Employment Appeal Tribunal's refusal to extend time.

2. Employment Appeal Tribunal: HHJ Clark dismissed the applicant's appeal from the registrar on a rehearing. He held that the whole claim document had to accompany the notice of appeal and refused an extension of time.

3. Employment Appeal Tribunal registrar: The application to extend time for lodging the complete appeal documents was refused on paper.

4. Employment Tribunal: The tribunal held that the employment contract had been frustrated, that the applicant had not been dismissed and that it lacked jurisdiction over the unfair dismissal claim. It also refused permission to pursue the late discrimination claims.