O'Cathail v Transport for London

An appellate court may interfere with a discretionary procedural decision of the Employment Appeal Tribunal only where the decision is wrong or procedurally irregular. This includes an error of principle, failure to consider relevant material, reliance on irrelevant material or another plain flaw.

On an application to extend time, the length of delay is material, but the crucial issue is whether the applicant has a good excuse. Disability and its effects are relevant to that assessment, but they justify an extension only so far as they explain or excuse the failure to comply. Lodging a notice of appeal does not institute an appeal where the rules also require supporting documents within the same period.

The appellant brought Employment Tribunal claims for disability discrimination and harassment against his employer. The Tribunal upheld the discrimination claim, awarded £3,000 and dismissed the harassment claim. He lodged his notice of appeal within the 42-day period but failed to lodge the required judgment and reasons until one day after the deadline.

The Employment Appeal Tribunal Registrar refused an extension. On appeal, Slade J upheld that refusal in UKEAT/0247/11/MAA. Although the appellant's depression, anxiety and panic attacks had delayed his preparation and contributed to his inability to travel on the final day, the judge found that his disability did not prevent timely lodgement of all the documents.

The central issue was whether the Employment Appeal Tribunal's refusal to extend time was wrong, procedurally unfair or otherwise plainly flawed.

1. Appeal dismissed. The appellant had not shown that the Employment Appeal Tribunal's refusal to extend time was wrong, involved an error of principle or was plainly flawed. Mummery LJ gave the judgment, with which Rimer and Pitchford LJJ agreed.

2. The Court of Appeal could not set aside a procedural order made in the exercise of the Employment Appeal Tribunal's discretion unless the decision was wrong or procedurally irregular. Intervention could be justified by an error of legal principle, disregard of relevant material, reliance on irrelevant material or another feature rendering the decision plainly flawed.

3. The established approach to extensions of the generous time allowed for appeals from the Employment Tribunal was binding on both the Employment Appeal Tribunal and the Court of Appeal. The tribunal had to act even-handedly by considering both parties' positions and the public interest in sound judicial administration. It was not required to consider only the hardship suffered by an applicant seeking an indulgence.

4. The timely notice of appeal was insufficient to institute the appeal. Rule 3 of the EAT Rules also required the specified supporting documents within the same period, and that requirement was strictly enforced. Although a delay of one day was a material factor, the crucial question was whether there was a good excuse for it.

5. Disability and its effects were relevant to whether there was a good excuse and whether exceptional circumstances justified an extension. The Employment Appeal Tribunal had accepted that the appellant's condition delayed the start of his work and contributed to his inability to travel on the final day. It was nevertheless entitled to find that the disability neither prevented earlier lodgement nor explained the missing documents. The appellant had prepared extensive grounds in time, could have lodged a shorter notice and could have used methods other than personal delivery.

6. The unsupported allegations of bias, predetermination, procedural unfairness and degrading treatment had no basis in law or fact. The difficulties faced by a vulnerable litigant in person could not justify baseless accusations of judicial misconduct.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2012] EWCA Civ 1004 . The court upheld the refusal to extend time.

2. Employment Appeal Tribunal: By an order dated 2 February 2011, Slade J dismissed the appellant's appeal from the Registrar's refusal of a one-day extension. The case reference was UKEAT/0247/11/MAA.

3. Employment Appeal Tribunal Registrar: By an order dated 12 April 2010, the Registrar refused an extension for lodging the documents required to institute the appeal.

4. Employment Tribunal: The Tribunal upheld the disability discrimination claim, awarded £3,000 compensation and dismissed the harassment claim.