Fazal v Thames Water Utilities Ltd

An extension of the 42-day appeal period may be granted where a late filing resulted from an administrative error of the Employment Appeal Tribunal and the appellant acted reasonably once that error affected lodging the appeal. A pending review application or request for reasons does not itself suspend time for appealing.

Where an appellant was responsible for failing to maintain an effective correspondence address, had adequate time after receiving the decision, and provides no exceptional justification for delay, an extension should be refused. The service rules were applied according to the address held by the Employment Tribunal.

The claimant brought three appeals from separate Employment Tribunal decisions: a pre-hearing review concerning time limits, a pre-hearing review concerning disability, and the substantive dismissal of unfair-dismissal and race-discrimination claims.

The Registrar refused to register all three appeals because they were late. The claimant appealed that order. He contended, among other matters, that written reasons had been sent to his former address and that out-of-date address information on the Employment Appeal Tribunal website prevented timely lodging of an appeal.

The central issue was whether the Registrar should have exercised the discretion to extend time in respect of any of the three proposed appeals.

1. Appeal allowed in part. The appeal from the Registrar’s refusal was allowed only in respect of the disability pre-hearing review. The refusals concerning the time-limits pre-hearing review and the substantive judgment were upheld.

2. A review application and a request for written reasons do not stop the time for appealing the underlying judgment. The claimant’s proposed appeal from the time-limits pre-hearing review was therefore hopelessly late. The Employment Tribunal had correctly refused reasons sought outside the applicable period, and there was no basis to extend time.

3. In relation to the disability pre-hearing review, the claimant had made a timely request for reasons. The Employment Tribunal erred by sending its later material to the former address after it had been notified of the new address. Time was fairly assessed from the date when the claimant actually obtained that material.

4. The claimant still left filing until the final day. However, he reasonably relied on the Employment Appeal Tribunal’s document headed I want to appeal, which continued to give the former address. He attended that address on the final day and, having been unable to lodge the appeal, instructed his son to locate and deliver the papers on the next working day. The delay to 9 January 2012 resulted from the Employment Appeal Tribunal’s administrative error. The Registrar had therefore erred in principle by refusing an extension.

5. For the substantive judgment, service at the former address was valid because it was the address then held by the Employment Tribunal under Rules of Employment Tribunal 2004. The claimant knew that reasons were expected, failed to arrange forwarding or otherwise monitor correspondence, and had ample time after seeing the reasons on 25 November 2011. The delay was his responsibility and was not exceptional.

6. The judge directed that reasons for the disability pre-hearing review be provided. The claimant could then lodge a fresh notice of appeal from that decision within time if advised to do so.

• Employment Appeal Tribunal: Appeal from the Registrar’s refusal to register three late appeals. The appeal was allowed only as to the disability pre-hearing review.
• Employment Tribunal: Employment Judge Spencer’s time-limits pre-hearing review was sent on 1 June 2011. A further pre-hearing review concerning disability was sent in June 2011. A tribunal chaired by Employment Judge Emerton dismissed the claimant’s unfair-dismissal and race-discrimination claims in a substantive judgment sent with reasons on 24 October 2011.