Harper & Anor v Hopkins

An Employment Appeal Tribunal’s 42-day appeal period must be observed. An extension is discretionary, but the applicant must provide a full and honest explanation for the whole period of delay and show a good excuse. Ignorance of the limit is not a good excuse, even where the overrun is short. A party is generally fixed with its representative’s acts and omissions. Illness will not justify an extension where it arose after the deadline or did not cause the failure to file. On appeal, the court asks whether the tribunal misdirected itself and does not substitute its own assessment.

Mr Hopkins brought employment claims against the applicants. Their response was filed late, a default judgment was entered, and the employment tribunal later refused a review after the applicants failed to attend the hearing. The tribunal’s reasons were sent to the applicants’ representatives on 21 November 2008.

The applicants filed their notice of appeal to the Employment Appeal Tribunal out of time. The Registrar refused an extension, and His Honour Judge McMullen QC dismissed the appeal in UKEATPA/0145/09/DA. The issue before the Court of Appeal was whether Judge McMullen had misdirected himself in applying the principles governing extensions of time, including whether further medical evidence could be considered.

Application refused. The Court of Appeal unanimously refused both an extension of time for appealing to it and permission to appeal.

1. Under rule 3(3) of the Employment Appeal Tribunal Rules 1993, the 42-day period runs from the date on which the reasons are sent to the parties, not the date on which they are received. Sending the reasons to a party’s representative is equivalent to sending them to the party under rule 61(4)(h) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The period therefore began on 21 November 2008 and expired on 2 January 2009.
2. Lord Justice Rimer agreed that the test attributed to Woodward v Abbey National Plc [2005] UKEAT PA/0534/05/SM, requiring impossibility or impracticability, was wrong. The applicable guidance was found in United Arab Emirates v Abdelghafar [1995] IRLR 243, later approved in Aziz v Bethnal Green City Challenge Co. Limited [2000] IRLR 111. The period must be observed, and an applicant must give a full and honest explanation showing a good excuse. Ignorance of the time limit is not a good excuse.
3. The whole period of delay had to be examined. The applicants were fixed with their representative’s acts and omissions, and the representative’s delay in communicating the decision did not itself provide a sufficient excuse. The applicants deliberately postponed filing because they misunderstood the start date. Mr Harper’s later illness did not cause the earlier default, and Ms Watson’s illness arose after the deadline.
4. The further medical material had not been placed before the Registrar or Judge McMullen, although it could have been. The Court of Appeal declined to entertain a different factual case and found no material difference in any event. The only relevant appellate question was whether Judge McMullen had misdirected himself or otherwise erred in approach. He was entitled to reach his conclusion.

The court also observed that self-represented litigants remain bound by procedural rules and hearing directions. Lady Justice Black and Lord Justice Pill agreed. The order was: application refused.

• Court of Appeal (Civil Division) [2010] EWCA Civ 1246: refused the application for an extension of time and permission to appeal.
• Employment Appeal Tribunal UKEATPA/0145/09/DA: His Honour Judge McMullen QC dismissed the appeal against the Registrar’s refusal to extend time and refused permission to appeal.
• Employment Tribunal: entered a default judgment, later refused a review, and awarded compensation after the applicants failed to attend the hearing.