Dootson v Royal Mail Plc

An appeal against refusal to register an out-of-time Employment Appeal Tribunal notice is a fresh hearing. The judge may reconsider the exercise of discretion on all the material before the Tribunal.

An extension of time requires a satisfactory explanation for the default and consideration of whether the circumstances justify the exceptional indulgence sought. The rules do not require proof that lodging an appeal was impossible throughout the whole 42-day period. A genuine mistake may explain a short delay, but it does not necessarily justify an extension, particularly where the appeal was ready well before the deadline and the remaining delay is unexplained.

The merits are generally irrelevant unless the proposed appeal is wholly without merit.

The Claimant sought to appeal an Employment Tribunal judgment finding that he was not disabled and rejecting his unfair dismissal claim. The judgment, with reasons, was sent on 24 August 2009. The 42-day period for lodging a notice of appeal expired on 5 October 2009.

The Claimant’s notice was signed on 23 September but lodged on 7 October, two days late. The Registrar refused registration and declined to exercise the discretion under rule 37. The Claimant appealed that decision, contending that the delay resulted from his lay representative’s genuine mistake about the deadline. The central issues were whether the Registrar had applied the correct approach and whether an extension should nevertheless be granted.

1. Appeal from Registrar. An appeal from the Registrar under rule 21 is effectively a fresh hearing. The Employment Appeal Tribunal must form its own view on the material before it, including any evidence received at the hearing.

2. Correct approach to time. The notice of appeal had to be lodged within 42 days after the judgment was sent. The rules and Practice Direction contain prescriptive requirements, and there is no special treatment for litigants in person or persons represented by lay representatives.

3. Registrar’s error. The Registrar had erred in treating it as necessary to show that compliance had been impossible throughout the whole six-week period. That was not, however, determinative because the fresh hearing required the judge to decide whether an extension was justified.

4. Discretion. The relevant considerations included the explanation for the default, whether it provided a good excuse, and whether exceptional circumstances justified extending time. The end period of a deadline required intense scrutiny. Here, the notice was ready on 23 September, almost two weeks before expiry, but there was no explanation for the delay until 5 October other than the representative’s mistake in calculating the deadline.

5. Merits. The merits of the substantive appeal were generally irrelevant. They could be considered where the proposed appeal had no merit at all. The Respondent had not suggested that this was such a case, so the merits were not examined.

6. The two-day extension was refused. The appeal was dismissed and permission to appeal was refused because there was no compelling reason for a further appeal and no reasonable prospects of success.

• Employment Tribunal: A reserved judgment, with reasons, was given after a four-day hearing on 24 August 2009. The Claimant was found not to be disabled and his unfair dismissal claim failed.
• Employment Appeal Tribunal: The Registrar refused to register the notice of appeal lodged two days out of time and declined to exercise the discretion under rule 37. The Employment Appeal Tribunal, on a fresh hearing, dismissed the appeal and refused permission to appeal.