Zinda v The Governing Body of Barn Hill Community High & Ors

An appellant who receives an adverse paper-sift decision from the Employment Appeal Tribunal must use one of the routes provided by Rule 3. A fresh notice of appeal must be filed within the applicable period, and an extension requires a rare and exceptional justification. The same strict approach applies to litigants in person. Confusion, incorrect advice, travel, competing commitments and a decision to prioritise other matters will not ordinarily justify lateness where the appellant knew the deadline and had sufficient time. On an extension application, the underlying merits normally receive little weight. After choosing the fresh-notice route and failing to obtain an extension, an appellant cannot use the review procedure to reopen the original notice.

Justin Zinda brought claims against his former school employer and two individuals for race discrimination, victimisation, harassment and constructive dismissal. The Watford Employment Tribunal dismissed all his claims in a judgment sent on 15 January 2009, with reasons sent on 28 July 2009.

The Employment Appeal Tribunal took no further action on his original notice of appeal under Rule 3(7). Mr Zinda filed a fresh notice under Rule 3(8), but it was two days late. The Registrar refused an extension. His Honour Judge McMullen QC dismissed his appeal against that refusal and rejected an application to adduce the respondents’ costs application as fresh evidence. His Honour Judge Hand QC later dismissed a challenge concerning a proposed review of the original Rule 3(7) decision. The central issues were whether permission should be granted to appeal those orders and whether the fresh evidence justified an extension or review.

1. Disposition. The renewed applications for permission to appeal were refused. An appeal against Judge McMullen’s order would not be a rehearing of the extension application. It would be confined to whether he had misdirected himself in law.
2. Extension of time. Under the Employment Appeal Tribunal Rules 1993, Mr Zinda chose the fresh-notice route after the Rule 3(7) paper-sift decision. The additional 28-day period was subject to the same strict approach as the original appeal period. In practical terms, he had about ten weeks in total. The principles in Jurkowska v Hlmad Limited [2008] EWCA Civ 231 and United Arab Emirates v Abdelghafar [1995] IRLR 243 required compliance except in a rare and exceptional case. Those principles applied equally to a litigant in person.
3. Mr Zinda knew the relevant deadline and, by 8 March 2010, had ample time to comply. His initial confusion, advice from Hillingdon Law Centre, travel, internet difficulties, legal training and decision to prioritise other matters did not provide a sufficient explanation or excuse. Judge McMullen was entitled to find that there was no exceptional basis for an extension.
4. Merits and fresh evidence. The underlying merits of the proposed appeal were normally of little weight on an extension application. Judge McMullen was therefore entitled to decide the application without investigating those merits. The respondents’ costs application did not explain the lateness and did not materially undermine the employment judge’s account of the neutral-witness application. The reference to Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 provided no assistance because that case did not concern the calling of witnesses.
5. Review. Following the Rule 3(7) decision, the available choices were a Rule 3(10) hearing or a fresh notice under Rule 3(8). Having elected the latter route, served the notice late and failed to obtain an extension, Mr Zinda could not use Rule 33 to reopen the original notice. The original Rule 3(7) decision had been superseded by dismissal of the fresh appeal. Judge Hand’s decision was therefore correct. Even if a review had technically remained available, the alleged fresh evidence could not affect the result.

• Court of Appeal (Civil Division): On 17 June 2011, Rimer LJ agreed with the earlier paper refusal by Mummery LJ and refused permission to appeal against both Employment Appeal Tribunal orders.
• Employment Appeal Tribunal: On 29 July 2010, Judge McMullen QC refused an extension for the two-day late fresh notice of appeal and rejected the fresh-evidence application. On 8 November 2010, Judge Hand QC dismissed the subsequent appeal concerning review of the original Rule 3(7) decision.
• Watford Employment Tribunal: The tribunal dismissed the discrimination, victimisation, harassment and constructive-dismissal claims in its judgment sent on 15 January 2009. Reasons were sent on 28 July 2009.