O'Cathail v Transport for London

The Court of Appeal refused to interfere with the Employment Appeal Tribunal's decision refusing a one‑day extension of time to lodge additional documents required to bring an appeal from the Employment Tribunal. The court reiterated the established principle that extensions of time by the EAT are granted only in exceptional circumstances and are scrutinised judicially; short delay is a material but not dispositive factor and the crucial question is whether there is a good excuse for the delay. The judge accepted the appellant suffered from a recognised disability, but found as a fact that the disability explained why he did not begin preparation until late in the permitted period rather than why he failed to lodge the required documents on time. The appellant had left lodging to the last moment and could have used other means of filing; accordingly the EAT had not erred in refusing the indulgence.

Background and parties: The appellant, Mr Greg O'Cathail, brought disability discrimination and harassment claims in the Employment Tribunal against Transport for London. The ET upheld the discrimination claim and awarded compensation; the appellant sought leave to appeal to the Employment Appeal Tribunal on a point of law. The appeal to the EAT required a notice of appeal and specified additional documents to be lodged within 42 days.

Procedural history: The ET decision was notified on 16 December 2009. The appellant lodged a notice of appeal in person at the EAT on 26 January 2010 but failed to lodge the ET judgment and reasons at the same time. The documents were sent by special delivery on 27 January and emailed on 28 January. The EAT Registrar refused a one‑day extension; Mrs Justice Slade dismissed the appellant's appeal from the Registrar. Initial permission to appeal to the Court of Appeal was refused on paper by Elias LJ; later permission was granted orally by Jackson LJ and the matter proceeded to the Court of Appeal.

Nature of the application: An application for an extension of time by one day to lodge documents necessary to institute an appeal to the EAT. The appellant relied on medical evidence of depression, anxiety and panic attacks and argued that his disability justified a short extension and that the EAT should have made reasonable adjustments.

Issues framed by the court:

• Whether the EAT erred in law or acted unfairly in refusing to extend time for lodging documents.
• Whether the appellant's disability explained the failure to comply with the time limit and therefore constituted exceptional circumstances or a good excuse.
• Whether the EAT failed to take into account relevant material such as disability legislation or acted on an incorrect principle.

Court’s reasoning: The Court of Appeal emphasised the narrow supervisory role over discretionary decisions and recited authorities establishing the principled approach the EAT must adopt. The court accepted the appellant was disabled and that the disability affected the early part of the preparation period, but accepted the EAT’s factual findings that the appellant left lodging to the last moment and that his disability did not prevent him from lodging the documents within the period (other means of filing were available). The shortness of the delay was not decisive; the absence of a good excuse for leaving compliance to the last day led the EAT to conclude correctly that exceptional circumstances did not arise. The court also rejected unsupported allegations of bias and procedural unfairness.

Wider context: The judgment notes that extensions are sparingly exercised, that applications are often made by litigants in person, and reiterates the public interest in orderly administration of time limits.

Appeal dismissed. The Court of Appeal held that the EAT had not erred in principle nor manifestly misapplied its discretion in refusing a one‑day extension: the appellant had left compliance to the last moment, other filing methods were available, and although his disability was relevant it did not explain the failure to lodge the additional documents within the time limit.

Appeal from the Employment Appeal Tribunal (order dated 2 February 2011 by Mrs Justice Slade dismissing the appellant's appeal from the EAT Registrar's order dated 12 April 2010). Permission to appeal to the Court of Appeal was initially refused on paper by Elias LJ (22 July 2011) and subsequently granted on a renewed oral application by Jackson LJ (20 January 2012). The Court of Appeal heard the substantive appeal on 24 May 2012 and handed down judgment on 20 July 2012 (this judgment: [2012] EWCA Civ 1004).