Leira v. Ministry of Justice (Time for appealing)

An appeal to the Employment Appeal Tribunal must be instituted within the prescriptive 42-day period running from the date on which the Employment Tribunal’s judgment or written reasons were sent. The Tribunal may extend time, but the discretion requires a coherent explanation and a good excuse for delay. Postal problems, including insufficient postage, are ordinarily foreseeable and do not by themselves justify an extension. The extent of the delay and the apparent merits of the proposed appeal may also be considered. Where the delay is substantial, the explanation is inadequate and the appeal lacks merit, the discretion should not be exercised.

The Claimant sought to appeal after the Registrar refused to register his Notice of Appeal as out of time. The Employment Tribunal’s judgment was sent on 14 May 2010 and its written reasons on 15 June 2010. The 42-day period therefore expired on 27 July 2010. The Notice of Appeal was received on 31 August 2010 and was properly instituted only on 2 November 2010.

The Claimant relied on alleged postal delays, insufficient postage, Tribunal delays and difficulties obtaining the judgment. The central issue was whether time should be extended for appealing from the Employment Tribunal’s decision.

1. Appeal dismissed. The Registrar was entitled to refuse registration of the Notice of Appeal, which was 98 days out of time.
2. The rules and Practice Direction require the relevant documents to be lodged within 42 days of the date on which the Employment Tribunal’s judgment or written reasons were sent. That period is prescriptive, although the Employment Appeal Tribunal has an open discretion to extend it. The approach stated in Muschett v London Borough of Hounslow and Ors [2009] ICR 424 was applicable and had been expressly approved by the Court of Appeal in Harper v Hopkins [2010] EWCA Civ 1246.
3. An application for review did not halt the running of time. A failure to ensure that an appeal was correctly documented, addressed and sufficiently stamped was not an excusable failure. Postal delay was foreseeable, and the Appellant had ample time to check whether the EAT had received the appeal.
4. The delay lacked a coherent explanation and good excuse. The length of the delay was substantial. The Tribunal was also entitled, exceptionally, to consider the merits of the proposed appeal, following the approach identified in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. The proposed appeal had no merit, and there was no justification for reviving it to the Respondent’s prejudice.
5. The Registrar’s order was upheld and the Notice of Appeal was not registered.

• Employment Appeal Tribunal: The Registrar refused to extend time and declined to register the Notice of Appeal. The appeal from that order was dismissed.
• Employment Tribunal: The Claimant’s claims, including race discrimination claims and other claims under the 1976 Act, were dismissed after a full hearing.