Ahir v Continental Tyre Group Ltd

An appeal to the Employment Appeal Tribunal must be validly instituted within the prescribed time, with all documents required by the rules and Practice Direction. Time limits are applied strictly. An extension requires a principled and truly exceptional justification, assessed consistently between litigants.

Litigant-in-person status, ignorance of readily available procedural requirements, a representative’s failure to cease acting, and an error made by lodging papers at the last moment will not ordinarily justify an extension. A recorded sending date may be challenged, but cogent evidence is required to displace the usual inference that the judgment was sent on that date.

The claimant’s unfair-dismissal claim was dismissed by the Employment Tribunal on 14 June 2011. Its written reasons were recorded as sent on 20 June 2011. He attempted to lodge an Employment Appeal Tribunal appeal on the final day, but omitted essential documents, including the Employment Tribunal judgment. The missing material was supplied two days late.

The Registrar refused an extension of time. The claimant then sought, out of time, to appeal that refusal under rule 21 of the Employment Appeal Tribunal Rules 1993. He contended that the Employment Tribunal reasons had been sent later than their stated date and relied on his lack of procedural knowledge and difficulties with his former solicitor. The central issue was whether either delay warranted an extension of time.

1. Both appeals were dismissed. The Employment Tribunal judgment and reasons were sent on 20 June 2011. The contrary evidence, consisting principally of an imprecise email from the claimant’s former solicitor, did not displace that conclusion. The respondent’s recorded receipt on 22 June and the Employment Tribunal’s confirmations strongly supported the stated sending date. The substantive appeal was therefore not validly instituted in time.

2. Under rule 3A(1) of the Employment Appeal Tribunal Rules 1993, time ran from the date on which the judgment or order was sent. An appeal had to include the documents required by the Rules and Practice Direction. Omitting the entire Employment Tribunal judgment was not a minor or excusable transmission error. Lodging documents at the end of the time limit carried the foreseeable risk that an error could not be corrected in time.

3. The Tribunal’s jurisdiction to extend time was discretionary but strict. Following Jurkowska v Hlmad Ltd [2008] EWCA Civ 231, it required a principled distinction between applicants and normally an exceptional explanation. The claimant knew the deadline. His status as a litigant in person, alleged lack of a Practice Direction, and his solicitor’s remaining on the record did not provide such an explanation. The merits did not affect that conclusion.

4. The separate appeal from the Registrar’s first refusal was nine days late although rule 21 allowed five days. The claimant’s asserted ignorance of that route of appeal, including the online advice he received, was insufficient. He had access to advice and information and had demonstrated the ability to research and prepare the proceedings. No extension was granted. Consequently, the underlying appeal failed because it had never been properly instituted.

• Employment Appeal Tribunal: appeals from two Registrar’s refusals to extend time were dismissed: [2012] UKEAT 1137_11_2803.
• Employment Tribunal: the claimant’s unfair-dismissal claim was dismissed on 14 June 2011. The claimant withdrew race and sex discrimination claims at the start of the hearing.