Desmond v Cheshire West And Chester Council HQ (Practice and Procedure : Time for appealing)

A document required for an Employment Appeal Tribunal appeal is not validly lodged merely because the appellant emails a link to a third-party website from which it may be downloaded. An appellant who leaves filing until the deadline assumes the ordinary risks of technical failure.

Nevertheless, an extension may be granted in exceptional circumstances. Relevant circumstances included the rejection of oversized scanned files, the appellant’s reasonable belief that a file-transfer service had sent the documents, and his prompt check with the Tribunal when it reopened.

The claimant appealed against the Registrar’s refusal on 2 March 2012 to register his proposed appeal from an Employment Tribunal decision refusing to consider his late review application. The underlying unfair-dismissal claim had been dismissed.

On the final day for appealing, the claimant attempted to email the required documents. The Employment Appeal Tribunal rejected two scanned documents because they were too large. He instead sent links, through TransferBIGFiles, to the judgment and ET1. The Tribunal’s website stated that a document was not validly lodged by a link to its location.

The central issue was whether the failure validly to lodge those documents should be cured by an extension of time.

1. The appeal from the Registrar was allowed. The judgment and ET1 had not been validly lodged by the deadline. A link to documents held on a third-party website required an EAT officer to retrieve them and was not a proper lodgement, notwithstanding that the documents were readily accessible.

2. The general regime remained strict. An appellant who files at the last minute must expect foreseeable technical difficulties, and the Registrar had correctly directed herself by reference to the relevant authorities.

3. The circumstances were nevertheless exceptional. The claimant’s scanned documents had exceeded the EAT mailbox limit. He reasonably understood the transfer service’s confirmation to mean that the documents had been sent, and he promptly contacted the EAT when it reopened to check their progress. Although he was responsible for leaving the matter late and for failing to read the website warning, those matters did not prevent the discretionary extension.

4. The respondent made no submission that the proposed appeal had no merits. The judge therefore did not need to form a view on merits when exercising the discretion. The matter was to proceed to the sift.

Postscript: the judge subsequently rejected the appeal under rule 3(7).

• Employment Appeal Tribunal: allowed the appeal from the Registrar’s refusal to register the notice of appeal and extended time; the appeal was subsequently rejected under rule 3(7).
• Registrar, Employment Appeal Tribunal: on 2 March 2012 refused to register the notice of appeal because the judgment and ET1 had not been validly lodged in time.
• Employment Tribunal: dismissed the claimant’s unfair-dismissal claim and subsequently refused to consider his late review application.