Onumajuru v NSL Ltd

An appellant seeking more time to challenge a Registrar’s procedural order must comply with the five-day limit or provide a satisfactory explanation for delay. The ordinary principles governing late appeals apply equally to such an interim appeal.

In exercising discretion, the tribunal may exceptionally consider the merits of the underlying appeal. A plainly unmeritorious proposed appeal provides no basis for extending time.

The Employment Tribunal dismissed the claimant’s claims. His notice of appeal was incomplete when received on the final day and was completed 12 days late. The Registrar refused an extension of time.

About a month after the Registrar’s order, the claimant sought to appeal that refusal, although an interim appeal had to be lodged within five days. The Registrar refused a further extension. The claimant appealed to the Employment Appeal Tribunal, contending in substance that he had not been told of the earlier order and that injustice would result from procedural requirements.

1. Appeal dismissed. The sole issue was whether time should be extended for the appeal against the Registrar’s order. The five-day limit applied, and the ordinary law and practice governing late appeals applied equally to that interim appeal.

2. The claimant gave no satisfactory explanation for the delay. The judge preferred the solicitor’s evidence to the claimant’s account. The claimant had been informed of the Registrar’s decision within five days but did not instruct an appeal. The alleged later contact with the EAT was unsupported by the file and was not accepted.

3. The judge also considered the underlying merits. While merits may occasionally be relevant to the discretionary decision, this was not a marginal case. The proposed substantive appeal raised no question of law, and the purported new evidence had already been rejected as material which could have been produced earlier. The Employment Tribunal had not made the finding about whistleblowing alleged in the grounds.

4. The Registrar had correctly applied the relevant authorities when refusing to extend time for the incomplete substantive appeal. Although that issue did not require decision, it reinforced the conclusion that no exceptional exercise of discretion was justified.

• Employment Appeal Tribunal: Appeal from the Registrar’s refusal, by order dated 12 September 2012, to extend time for an appeal against an earlier Registrar’s decision. The appeal was dismissed.

• Employment Tribunal: The claimant’s claims were dismissed on 16 May 2012. The judgment states that an application for review based on asserted new evidence was also refused.