Whitbread v Lancashire Teaching Hospitals NHS Foundation Trust

An appeal against an Employment Tribunal judgment must be lodged within 42 days of the date on which the judgment is sent to the parties. A party pursuing a review should nevertheless lodge an appeal in time; the appeal may then be stayed pending the review.

There is no special procedural treatment for litigants in person. An extension of time remains discretionary and will not ordinarily be granted where the party had clear written information about the time limit and deliberately waited for the review.

Where a review application passed the threshold for review, a tribunal must carefully explain why bringing it was nevertheless misconceived or unreasonable before making a costs order on that basis.

The Claimant sought to appeal an Employment Tribunal judgment sent on 29 September 2009. She had instead pursued a review, which resulted in a minor correction and otherwise affirmed the original decision. Reasons for the review decision were sent on 13 January 2011.

The Registrar refused to register the appeal because it was approximately 15 months late and declined to extend time. The Claimant appealed that decision and also sought permission under rule 3(10) to pursue an appeal against the review decision. The central issues were whether time should be extended, whether the proposed appeal had a reasonable prospect of success, and whether the review tribunal had erred in ordering a contribution to the Respondent’s costs.

1. Late appeal. The appeal from the Registrar’s refusal to extend time was dismissed. The applicable time limit was 42 days from the date the Employment Tribunal judgment was sent. The Claimant knew the distinction between an appeal and a review, possessed documents stating that time ran from the date of sending, and should have lodged an appeal while awaiting the review. The appeal could have been stayed pending the review.
2. Rule 3(10). The Judge applied the approach in Haritaki v South East England Development Agency and concluded that the proposed challenge to the review decision had no reasonable prospect of success, save for the distinct costs issue. An appeal against a review decision cannot be used to reopen or piggyback an out-of-time appeal against the original decision. The review tribunal had dealt fairly and carefully with the grounds advanced, and the alleged defects concerned factual matters, case management or discretion rather than errors of law.
3. Costs of the review. The costs challenge was allowed to proceed to a full hearing. A review application may be referred for review under rule 35(3), yet still be misconceived or unreasonably brought. However, that conclusion requires careful explanation. The Sherratt Tribunal had not sufficiently explained how the application was misconceived or unreasonable after Judge Creed had ordered the review. The issue also required particular care because the costs order was made by a different tribunal from the tribunal which directed the review.
4. The appeal from the Registrar was dismissed. The rule 3(10) application succeeded in part, limited to the costs point, which was permitted to proceed to a full hearing.

• Employment Tribunal: Judgment sent to the parties on 29 September 2009.
• Employment Tribunal on review: Review hearing conducted over two days; reasons sent on 13 January 2011. The original judgment was affirmed subject to a minor clerical correction, and a costs order was made.
• Employment Appeal Tribunal: Appeal from the Registrar’s refusal to extend time dismissed. Rule 3(10) application partly successful on the costs issue.