Miller v. Lambeth Primary Care Trust

An extension of time for an Employment Appeal Tribunal appeal requires an exceptional explanation for non-compliance with the 42-day limit. The tribunal examines the whole period of delay, with particular scrutiny of the final period, and considers whether the appellant could have lodged a valid notice and the prescribed documents earlier. Litigants in person receive no special procedural indulgence, although disability may be relevant where its practical effect on compliance is evidenced. The merits may also be considered: there is no justification for extending time to give life to an appeal which is bound to fail.

The Claimant appealed against the Registrar’s refusal to register a Notice of Appeal lodged two days late. The underlying Employment Tribunal proceedings included claims of victimisation and unfair dismissal, together with issues concerning a withdrawn unlawful-deduction claim and a costs order. The Employment Tribunal had dismissed the substantive claims and, on review, declined to vary the costs order.

The Employment Appeal Tribunal, sitting with His Honour Judge McMullen QC alone, treated the proposed challenges as arising from the later judgment for the purposes of the application. The central issue was whether there was an exceptional reason to extend time under the Employment Appeal Tribunal’s procedural regime.

1. Appeal dismissed. The Registrar had correctly refused to extend time for the Notice of Appeal, which was validly instituted on 2 July 2010 but was due by 4 pm on 30 June 2010.
2. The Employment Appeal Tribunal requires a Notice of Appeal and the prescribed supporting documents to be lodged within 42 days. The requirements are prescriptive. There is no special treatment for litigants in person. The tribunal may enforce the deadline firmly because the period is generous and the regime is unforgiving.
3. An analytical and pragmatic approach is required. The tribunal should scrutinise the period immediately before expiry while considering the explanation for the entire delay. Here, the Claimant had legal advice, a solicitor’s draft notice, knowledge of the deadline and the required documents, and was in a position to lodge a valid appeal by about 3.30 pm on the final day. Documents concerning the costs issue were not essential prescribed documents.
4. The Claimant’s dyslexia was accepted, including its possible effect on organisation. However, she did not establish that it caused the delay. Her experience as a litigant and her understanding of the procedural requirements were relevant.
5. The merits are a relevant consideration. Following Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111, there was no point extending time where the proposed appeal had no merit and was bound to fail. Nothing was sufficiently exceptional to justify exercising the discretion.

• Employment Appeal Tribunal: The Registrar refused registration of the Notice of Appeal and an extension of time. The Employment Appeal Tribunal dismissed the challenge and upheld that refusal.
• Employment Tribunal: Employment Judge Balogun, with members, dismissed the claims of victimisation and unfair dismissal and refused on review to vary the earlier costs order.