Connelly v BIFFA Waste Services

An extension of time for an Employment Appeal Tribunal appeal requires a persuasive and supported explanation for the delay. A medical condition will not justify an extension where the chronology shows that the appellant remained able to prepare and submit written applications during the relevant period. Longstanding stress, depression and substance dependency may explain delay, but do not excuse non-compliance where they did not prevent participation in the proceedings, the appellant knew the time limit and had obtained advice. In the absence of an exceptional reason, the refusal to extend time should stand.

The Claimant sought to appeal the Registrar’s refusal to extend time for lodging an appeal from Employment Tribunal decisions. An earlier pre-hearing review had found that the Tribunal lacked jurisdiction over his unfair dismissal claim because he lacked one year’s continuous employment. A later claim, alleging sex discrimination, was dismissed as out of time.

The last appeal deadline ran from an order made on 15 April 2011. The Claimant’s appeal was not properly instituted until 2 August 2011. He relied on an eye injury, depression, stress and cannabis dependency. The central issue was whether those matters justified an extension of the 42-day appeal period.

1. Appeal dismissed. The Registrar correctly refused to extend time for registering the appeal.

2. The issue was discretionary because the 42-day deadline had admittedly expired. The Claimant’s eye condition was a genuine medical matter, but it did not furnish an adequate excuse for the delay. He knew of the time limit and, after the injury, submitted a detailed review application and further written evidence to the Employment Tribunal. Those actions showed that the condition did not prevent him from lodging a notice of appeal before the deadline.

3. Stress, depression and cannabis dependency were an explanation for the Claimant’s circumstances but not an excuse for late filing. They had existed before the relevant period, yet he had continued to conduct Tribunal proceedings and make applications. He had also obtained independent legal advice. Stress associated with Tribunal litigation, without more, does not justify failing to lodge a notice of appeal in time.

4. The Registrar had applied the correct authorities and was entitled to regard the appeal documentation as deficient. There was no exceptional reason to exercise the discretion to enlarge time. The Judge accepted the Respondent’s written submissions and upheld the Registrar’s order.

• Employment Appeal Tribunal: Appeal from the Registrar’s order of 19 December 2011 refusing an extension of time. The appeal was dismissed.
• Employment Tribunal: Employment Judge Harper held on 8 November 2010 that there was no jurisdiction over the unfair dismissal claim because the Claimant lacked one year’s continuous employment. Employment Judge Tickle dismissed the later complaints as out of time on 29 March 2011; the relevant order was made on 15 April 2011. A review application was subsequently refused.