Euro Earth Works Ltd v Robinson

An employment tribunal may refuse to extend the time for seeking a review where the application is substantially late and the delay reflects a party’s failure to engage with proceedings. Procedural flexibility must be balanced against the need for finality and fairness to the opposing party. An appellate tribunal should not interfere with a case-management or discretionary decision unless it was capricious, wrong in principle, or otherwise outside the proper range of discretion.

An employment tribunal found that Mr Robinson had been dismissed and awarded him £40,878.50 after his employer failed to enter a response or attend the hearing. An appeal against the tribunal’s reasons was rejected by HHJ Peter Clark. The employer then sought a review eight weeks after expiry of the 14-day period under rule 35(1). The employment judge refused to extend time, finding that the delay resulted from the employer’s own decision not to obtain advice or engage with the proceedings. The employer appealed, arguing that the tribunal should have adopted a more flexible approach and balanced the competing injustice.

1. Appeal dismissed. The employment judge had jurisdiction to refuse an extension of time under rule 35(1) and properly exercised the discretion.
2. Procedural rules should not be applied over-zealously where that would cause injustice. Equally, it would be unfair to allow litigants to disregard time limits and fail to engage with proceedings. Finality in litigation is an important consideration.
3. The refusal was not capricious. The employer had received correspondence on approximately six occasions, had made no attempt to contact the tribunal or the claimant, had not attended the hearing, and made the review application eight weeks out of time. The failure was not a technical breach but part of a continuing failure to take the proceedings seriously.
4. The Employment Appeal Tribunal should not interfere with the exercise of a lower tribunal’s discretion where the decision was properly directed and fell within the permissible range. No sufficient basis for intervention was established.
5. The underlying employment-status issue did not justify reopening the matter. Determining whether a claimant is an employee requires consideration of both documentation and evidence of the parties’ actual relationship, as illustrated by RSA Consulting v Evans [2010] EWCA Civ 866. It was not clear that the employer had an arguable case on that issue.

• Employment Appeal Tribunal: The appeal against the refusal to review the employment tribunal’s decision was dismissed.
• Employment Tribunal: The tribunal found that Mr Robinson had been dismissed and awarded £40,878.50. It refused to extend the time for a review application made eight weeks late.
• Employment Appeal Tribunal: An earlier appeal against the tribunal’s reasons was rejected by HHJ Peter Clark in a letter dated 16 June 2009. No rule 3(10) hearing was pursued.