Tamina v. NHS Professionals

The 42-day time limit for instituting an appeal to the Employment Appeal Tribunal is prescriptive. An appellant must lodge a properly constituted Notice of Appeal and the required supporting material within that period. The Tribunal has power to extend time, but exercise of that discretion is unusual and requires an exceptional reason. Generosity may be shown to a litigant in person, but it does not displace the time limit or excuse an avoidable failure to act promptly. The classification of an Employment Tribunal document as an order or judgment determines when time begins to run under the applicable rule.

The Claimant sought to appeal two interim case-management orders made by the Manchester Employment Tribunal on 18 January and 2 February 2010. The applicable 42-day periods expired on 1 March and 16 March respectively. The first Notice of Appeal was received on the first deadline but was not properly constituted; the appeal was properly instituted on 17 March, making the appeals 16 days and one day late.

The Registrar refused registration. On appeal from that order, the Employment Appeal Tribunal considered whether the Registrar had applied the correct approach and whether time should be extended despite the Claimant's status as a litigant in person.

1. Appeal against Registrar's order dismissed. The Tribunal conducted a fresh hearing and formed its own view, while allowing the Claimant a substantial degree of generosity as a litigant in person.
2. The relevant time limit was 42 days. Under EAT rule 3(3)(b), time ran from the date on which an order was sent, because the two Employment Tribunal documents were orders rather than reasoned judgments. If rule 3(3)(a) applied because they were judgments, the result would have been the same.
3. The 2008 Practice Direction and the relevant rules required a properly constituted Notice of Appeal together with the supporting materials within 42 days. The prescriptive nature of those provisions meant that the Claimant could not rely on the EAT's letter allowing further time to supply documents as extending the original period.
4. The authorities, including Muschett v London Borough of Hounslow and others [2009] ICR 424 and Harper & Anor v Hopkins [2010] EWCA Civ 1246, established that an extension was unusual. The Claimant had sufficient information and opportunity to institute the appeals earlier. No exceptional reason justified an extension.
5. The appeal concerning the first order was 16 days late and the appeal concerning the second order was one day late. Neither delay was excused. Permission to appeal to the Court of Appeal was refused because the matter involved a straightforward exercise of fact and discretion and had no reasonable prospect of success. Permission could be sought from the Court of Appeal within 21 days.

• Manchester Employment Tribunal: made interim orders on 18 January and 2 February 2010.
• Employment Appeal Tribunal: dismissed the appeal from the Registrar's refusal to register the Notices of Appeal and refused permission to appeal to the Court of Appeal.