Wilkinson v Reid Wines 1992 Ltd

On a renewed application for permission to appeal against an Employment Appeal Tribunal’s discretionary refusal to extend time, the Court of Appeal will not intervene merely because it might have reached a different decision. The applicant must show an improper exercise of discretion amounting to an error of law. The EAT may enforce its procedural time limits strictly, particularly where an appellant waits until near expiry to obtain documents required for a valid appeal. The underlying merits may be examined for an exceptional feature, but permission should be refused where the proposed appeal has no realistic prospect of success and the tribunal’s decision was properly open to it. Sympathy and serious personal consequences do not alter that threshold.

Wilkinson v Reid Wines 1992 Ltd arose from an unfair dismissal claim. The Employment Tribunal found that dismissal following a threat of violence was fair and fell within the range of reasonable responses.

The claimant lodged notice of appeal to the Employment Appeal Tribunal within the 42-day period, but filed the required ET1 and ET3 documents two days late. The Registrar refused an extension of time, and His Honour Judge McMullen QC, sitting in the EAT, refused the claimant’s challenge. Wall LJ refused permission on the papers. The claimant renewed his application before the Court of Appeal, raising the exercise of discretion, the delay in obtaining the documents, and the merits of the underlying claim.

1. Application refused. The Court of Appeal refused the renewed application for permission to appeal. Lord Justice Thomas agreed with the reasons and conclusion of Lord Justice Keene.
2. The decision whether to extend time was discretionary. The Court would not interfere merely because it might have reached a different conclusion. Permission required a showing that the discretion had been improperly exercised so as to involve an error of law.
3. The 42-day period under the EAT rules, Rule 3.3, was generous. The EAT was entitled to operate its time limits strictly. An appellant was expected to act with dispatch. Waiting until four days before expiry to seek replacement documents, after discovering that they were missing, was not an acceptable approach. The refusal to extend time was well within the EAT’s discretion.
4. The Court considered the merits as an additional check for any exceptional feature warranting permission. It found none. The Employment Tribunal’s conclusion that dismissal for a threat of violence fell within the range of reasonable responses was properly open to it and was not obviously wrong in law. There was no realistic prospect of a successful appeal. The claimant’s difficult personal circumstances and potential financial consequences did not justify permission.

• Court of Appeal (Civil Division) — Wall LJ refused permission on the papers; the renewed application for permission was refused, [2007] EWCA Civ 964.
• Employment Appeal Tribunal — the Registrar refused an extension of time, and His Honour Judge McMullen QC refused the claimant’s challenge.
• Employment Tribunal — found the dismissal fair in a decision dated 31 August 2006, with reasons sent on 13 September 2006.