Popa v Price Waterhouse Coopers LLP & Ors

An extension of time to lodge an Employment Appeal Tribunal appeal requires a sufficient explanation for the delay. A self-represented litigant’s location abroad, computer difficulties and personal circumstances did not, on the facts, excuse a 17-day delay where the appellant knew the rules and was an experienced litigant. A timely expression of an intention to appeal does not reserve a right to appeal later.

The Tribunal may exceptionally consider whether a proposed appeal has no merit at all. Where the appeal has some arguable merit, it should not be rejected on that ground; the ordinary approach is to determine the extension application on the reasons for lateness.

The claimant appealed to the Employment Appeal Tribunal from the Registrar’s refusal on 23 November 2011 to register her Notice of Appeal out of time. The proposed appeal challenged Employment Judge Laidler’s decision to return a claim form because it did not clearly identify claims within the Employment Tribunal’s jurisdiction.

The Notice of Appeal was lodged 17 days late. The claimant relied on her relocation to Romania, computer failures and distressing events in her personal life. The respondents also invited the Tribunal to consider the merits of the proposed appeal. The central issue was whether the Registrar’s refusal to extend time should be overturned on a fresh determination.

1. Appeal dismissed. Judge McMullen QC reconsidered the Registrar’s decision afresh and concluded that no discretion should be exercised to admit the Notice of Appeal 17 days late.

2. The applicable procedural requirements were clear. The Employment Appeal Tribunal Practice Direction 2008 and the Rules required the appeal documents to be served in time. An email stating an intention to appeal did not reserve a right to lodge a later appeal. The claimant knew the requirements and had experience of litigation.

3. The matters advanced by the claimant did not provide an adequate excuse for the delay. Her being in Romania did not prevent internet access. Intermittent computer failure, self-representation and the personal events relied upon did not justify failure to take the elementary step of lodging a compliant notice in time. The Registrar had applied the leading authority, although its reference to negligence, idleness or incompetence did not accurately describe the cause of this claimant’s delay.

4. The Tribunal considered the possible merits of the proposed appeal only exceptionally, following Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111. It declined to hold that the claim had no merit at all. The material suggested an intended disability-discrimination claim arising from employment, and the Employment Judge had given no reasons for regarding the claim as unclear. The merits point therefore did not provide an independent basis to reject the appeal.

5. The decisive basis remained the unexplained and unjustified delay. The appeal from the Registrar’s order was dismissed.

• Employment Appeal Tribunal: appeal from the Registrar’s refusal on 23 November 2011 to register an out-of-time Notice of Appeal; dismissal of that appeal.
• Employment Tribunal: Employment Judge Laidler returned the claimant’s claim form on 29 March 2011 because it was unclear what claims within the Tribunal’s jurisdiction were made.