Hancocks v Cambian Education Services Ltd (Practice and Procedure : Time for appealing)

An Employment Appeal Tribunal may extend the time for appealing where the delay is short and the appellant gives a reasonable, cogent explanation for it. Relevant circumstances may include lack of knowledge of the right of appeal, reliance on misleading administrative assurances, serious personal difficulties, inadequate legal advice and prompt action once the correct procedure is understood.

Failure to lodge every prescribed document is ordinarily an error, but may be excused where the omission is venial and the appellant gives a truthful and reasonable explanation. An ET3 from a respondent dismissed from the proceedings need not be included, whereas ET3s from other respondents may be required. The merits may be relevant where an appeal has no merits at all.

These were two appeals from Registrar’s orders refusing to register Notices of Appeal because they were lodged out of time. In Mrs Hancocks’s case, the Notice was six days late after the claimant and her husband, who had not been advised of the right or time limit for appeal, relied on assurances from the Employment Tribunal that their enquiry was being actioned.

In the second case, Mr Singh’s appeal was three days late and initially omitted the ET3s of three respondents. He knew the deadline, acted promptly after obtaining advice, and explained why he considered the omitted documents irrelevant. The central issue was whether the discretion to extend time should be exercised in either case.

1. Both appeals allowed. The Notices of Appeal were treated as validly served or instituted despite being out of time.
2. The applicable procedural framework required Notices of Appeal and prescribed supporting documents to be lodged within 42 days. The period was generous, and the requirements were prescriptive, but the discretion to extend time remained available in exceptional circumstances. The approach was considered against Muschett [2009] ICR 424, Jurkowska v Hlmad Ltd [2008] ICR 841, Wesmoreland v Renault [2008] UKEAT PA 1571, Harper & Anor v Hopkins [2010] EWCA Civ 1246 and Kalill v North Cornwall [2010] EWCA 655.
3. For Mrs Hancocks, the combination of serious family illness, lack of knowledge of the right of appeal and deadline, the solicitor’s failure to provide the Judgment booklet or advice, and reasonable reliance on the Employment Tribunal’s assurances justified an extension. Once directed to the EAT, the appeal was prepared and lodged promptly.
4. For Mr Singh, omission of the ET3 of a respondent already dismissed from the proceedings was not an error requiring correction. The other ET3s should have been included, but the omission was excused because his explanation was truthful and cogent, the costs order against him was distinct, and he acted promptly after receiving advice.
5. The merits could be relevant where an appeal had no merits at all. Although the first appeal appeared meritless, that did not prevent the extension in the exceptional circumstances. The parties were invited to consider the next procedural stage under Rule 3.

• Employment Appeal Tribunal: Appeals from Registrar’s orders refusing to register two out-of-time Notices of Appeal. The appeals were allowed by His Honour Judge McMullen QC sitting alone.