Rixon v Metropolitan Police Commissioner

An appellant seeking an extension of time for an Employment Appeal Tribunal notice of appeal must provide an acceptable explanation for the delay. A delay of almost one year is wholly excessive in the absence of a cogent excuse. Unsubstantiated fears of violence, arrest or imprisonment did not excuse the delay where the appellant had professional support and the tribunal rejected the factual basis of those fears.

A claimant who has withdrawn a claim should attend a listed hearing unless the tribunal has confirmed that attendance is unnecessary. Where the formal steps for withdrawal and dismissal under rule 25 have been taken, the dismissal is effective.

The claimant had withdrawn two Employment Tribunal claims shortly before a ten-day hearing. On the respondent's written application, the tribunal dismissed both claims upon withdrawal on 19 April 2010.

Almost a year later, the claimant sought to revive the allegations and lodged a notice of appeal out of time. The Registrar refused to extend time. The claimant appealed that order, contending that he had intended only a temporary withdrawal and had acted from fear of unlawful imprisonment and violence by Metropolitan Police officers.

The central issue was whether that explanation justified the exceptionally late notice of appeal.

1. Appeal dismissed. The claimant had not provided an acceptable excuse for lodging his notice of appeal almost a year late. Applying the principles in the authorities concerning late appeals, the EAT rejected his account that fear of violence or unlawful arrest and imprisonment explained the delay.

2. The judge found that account fanciful. The claimant had support from his Police Federation representative, contact with senior officers and the IPCC, and experience of Employment Tribunal proceedings. His vague evidence that later assurances made him feel safe did not explain why he then waited so long before appealing.

3. The claimant had withdrawn the claims in writing after meeting his professional representative. He had not received confirmation that the hearing would be removed from the list or advice that he need not attend. He should therefore have attended so that the tribunal could deal with any application for withdrawal, adjournment or postponement.

4. Rule 25 of the Tribunal Rules required withdrawal followed by a respondent's written application for dismissal. Those formalities were observed: the respondent made the written application at the hearing and the Employment Judge dismissed the claims. Although the claimant may not have understood the technical distinction between withdrawal and dismissal, the judgment clearly recorded both acts. If he had misunderstood its effect, he could promptly have sought advice, a review, or the respondent's written application.

5. In any event, even if the explanation had been accepted, the period of one year was wholly excessive and the EAT would have declined to exercise its discretion to extend time.

• Employment Appeal Tribunal: the appeal from the Registrar's refusal to extend time for the notice of appeal was dismissed.
• Employment Appeal Tribunal Registrar: declined to exercise discretion to admit a notice of appeal lodged almost one year late.
• Employment Tribunal: on 19 April 2010, dismissed both claims upon the claimant's withdrawal, following the respondent's written application.