Jurkowska v Hlmad Ltd

On an application to extend time for an appeal to the Employment Appeal Tribunal, the United Arab Emirates v Abdelghafar guidelines provide a principled, but non-fettering, framework. The overriding objective in rule 2A of the Employment Appeal Tribunal Rules 1993 does not displace that framework.

The tribunal must consider all the circumstances. A full and honest explanation and a good excuse will ordinarily be required, but an extension may exceptionally be just even without an excuse that would usually suffice. An appellate court should not interfere with the EAT's discretionary decision unless the judge misdirected himself in applying those principles.

The claimant brought disability-discrimination proceedings against her former employer. At a pre-hearing review, the Employment Tribunal held that it had jurisdiction to determine the claim.

The employer sought to appeal. Its notice of appeal was served on the final day, but it omitted the formal written record of the Tribunal's judgment required by rule 3 of the Employment Appeal Tribunal Rules 1993. The missing document was faxed to the EAT 33 minutes after the applicable deadline. The Registrar granted an extension of time, and the EAT upheld that decision: UKEATPA/1657/06/JOJ.

The claimant appealed, contending that the EAT had misapplied the principles governing an extension of time and had wrongly treated the omission as exceptional.

1. Appeal dismissed unanimously. The court upheld the EAT's discretionary extension of time for the employer's appeal.

2. Rimer LJ held that the guidance in United Arab Emirates v Abdelghafar [1995] IRLR 243 remained the applicable framework. Rule 2A of the Employment Appeal Tribunal Rules 1993 did not require the EAT to abandon that guidance in favour of an undefined general appeal to justice. The guidelines required a structured consideration of all the circumstances and did not fetter the discretion.

3. A good excuse for delay would ordinarily be necessary. It was not, however, an absolute precondition. Exceptional circumstances could make an extension just even where the explanation did not ordinarily excuse the default. The expression that extensions are granted only in rare and exceptional cases described the expected rarity of justified extensions; it did not impose a separate threshold requiring an appellant to prove that its facts were intrinsically rare.

4. The judge was entitled to find that neither the employer nor its solicitors appreciated that counsel had received the only copy of the Employment Tribunal's formal judgment. The solicitors' mistaken treatment of the subsequently supplied reasons as satisfying the requirement for both a judgment and reasons was capable of being regarded as pardonable in the unusual circumstances. The error was corrected promptly once identified.

5. The employer was entitled to use the full 42-day period to institute its appeal, although doing so exposed it to the consequences of any final-day error. The fact that the appeal papers had been left until the last day did not prevent the judge from granting an extension on these facts. The Court of Appeal would interfere only if satisfied that the EAT judge had misdirected himself; no such error was shown.

Hooper LJ agreed, while expressing reservations about treating lack of prejudice as insignificant and about rule 2A having no additional role. Sedley LJ also agreed, emphasising that the decision did not revise the Abdelghafar practice or make the extension rules less strict generally.

• Court of Appeal (Civil Division): dismissed the claimant's appeal and upheld the extension of time: [2008] EWCA Civ 231.
• Employment Appeal Tribunal: on 17 May 2007, Underhill J upheld the Registrar's grant of an extension of time for the employer's appeal: UKEATPA/1657/06/JOJ.
• Employment Tribunal: at a pre-hearing review on 25 September 2006, held that it had jurisdiction to determine the claimant's disability-discrimination claim.