Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors

The Employment Appeal Tribunal has a broad discretion to extend time for instituting an appeal. The discretion is governed by clear principles and requires a careful assessment of the whole period of delay.

Fault by a legal adviser is relevant but not conclusive. An accidental and venial omission may be excused where the delay is fully explained, a reasonable checking system existed, the essential documents were supplied, and there is no legal prejudice to the respondent. Ordinary inconvenience and expense are not, without more, legal prejudice. The fact that missing material was corrected before judicial consideration is ordinarily irrelevant.

The appellants sought to appeal an Employment Tribunal judgment determining that there had been no relevant transfer or service provision change. The appeal was otherwise properly instituted, but the Notice of Appeal was lodged three days outside the 42-day time limit because one of the five pages of the Tribunal’s Reasons had not been transmitted.

The Deputy Registrar refused to extend time. The Employment Appeal Tribunal reheard the matter on evidence and considered whether the omission, the explanation for it, the conduct of the appellants and their advisers, the checking arrangements, and any prejudice justified enlargement of time.

1. Appeal allowed. The Tribunal exercised its discretion to extend time by three days and validated the appeal.
2. The discretion to admit an out-of-time appeal is broad but regulated by clear principles. The relevant question requires a rehearing of the matters before the Registrar, including the evidence explaining each material period of delay.
3. The period before the solicitors received the full papers was not blameworthy. Thereafter, the solicitor acted reasonably in obtaining experienced counsel and preparing the appeal with the evidence application contemplated by PD 7.1. Counsel acted promptly.
4. The immediate cause of default was the accidental omission of one page during scanning. The solicitors’ system was imperfect because it did not check every page, but it did include a check that material had reached the EAT. The secretary’s question was answered accurately by reference to what had been sent, and the missing page was supplied within minutes of its discovery.
5. The principles summarised in Muschett v London Borough of Hounslow [2009] ICR 424 continued to apply. Adviser fault had to be considered with the other circumstances and was not conclusive. The present appellate jurisdiction was distinct from first-instance Employment Tribunal cases applying the reasonably practicable test.
6. Further, accidental errors are common; respondent inconvenience and expense are not ordinarily legal prejudice; and correction before the papers reach a Judge on the sift is not a relevant consideration. The omission was slight, fully explained and reasonably excused. The merits were not taken into account, since no party addressed them and the appeal could not be said to have no merits.

• Employment Appeal Tribunal: The Deputy Registrar’s refusal to register the Notice of Appeal was overturned. Time was extended by three days and the appeal was validated.
• Employment Tribunal: Employment Judge Harper’s Reserved Judgment with Reasons dated 26 October 2010 determined that there had been no relevant transfer or service provision change, leaving the Hines potentially liable for employment law breaches.