Booley v British Army MOD

An extension of time for an Employment Appeal Tribunal appeal is exceptional. The 42-day limit applies equally to represented and self-represented litigants. Ignorance, oversight or a late change of mind about correct legal advice will not ordinarily justify departure from the rules.

The apparent merits may be considered where the proposed appeal is hopeless. It is inappropriate to extend time merely to revive a claim which the Tribunal plainly lacks statutory jurisdiction to determine. Under Employment Rights Act 1996 sections 191 and 192, a member of the armed forces cannot bring ordinary unfair dismissal or breach of contract claims in an Employment Tribunal. A discrimination claim requires an alleged infringement connected with a protected characteristic.

The claimant, a former soldier, resigned from the British Army and presented claims for constructive unfair dismissal and breach of contract. The Employment Tribunal rejected them for want of jurisdiction because he had served in the armed forces.

He lodged an appeal 326 days after the 42-day deadline. The Registrar refused an extension. He contended that legal advice he had received was wrong because other armed-forces personnel had obtained Employment Tribunal remedies. The cited examples concerned claims based on protected characteristics. The appeal to the Employment Appeal Tribunal challenged the Registrar’s refusal to extend time.

1. Appeal dismissed. The proposed appeal was very substantially out of time. The claimant had received correct and thorough advice that his ordinary employment claims could not be brought in the Employment Tribunal. His later discovery of cases involving service personnel and discrimination claims did not supply an exceptional reason to extend time.

2. The applicable procedural principles required the 42-day appeal limit to be observed. Self-representation gave no special entitlement to relaxation. Although merits will usually receive limited examination on an extension application, they could properly be considered where, as here, the appeal was hopeless. The approach in Aziz v Bethanal Green City Challenge Co Ltd [2000] IRLR 111 supported refusing to breathe life into such a case.

3. Sections 191 and 192 of the Employment Rights Act 1996 excluded service in the naval, military and air forces from the statutory provisions governing ordinary unfair dismissal. The Employment Tribunal therefore lacked jurisdiction over the claimant’s constructive unfair dismissal and breach of contract claims.

4. The cases involving women and other protected groups did not disclose an error in that conclusion. Those claimants had accessed the Tribunal through discrimination rights. Harassment and bullying, without any pleaded or evidenced connection to a protected characteristic under the Equality Act 2010, did not establish such a claim.

5. There was consequently no basis to exercise discretion against the public interest in finality. Even if the Registrar’s order were set aside, the appeal would be sifted out under rule 3(7).

• Employment Appeal Tribunal: dismissed the appeal from the Registrar’s refusal to extend time: [2012] UKEAT 1821_11_1907.
• Employment Tribunal: rejected the claimant’s constructive unfair dismissal and breach of contract claims for want of jurisdiction.