Ojikutu v London Borough of Camden

An extension of time for filing an appeal to the Employment Appeal Tribunal is ordinarily granted only in rare and exceptional cases, particularly where the applicable period is already generous. The applicant must provide a full and honest explanation for the default. The length of delay, merits, prejudice, procedural conduct and any alleged personal difficulties may be considered. A one-day delay, absence of prejudice, work pressure, bereavement or carelessness will not necessarily justify an extension. An appellate court should not interfere with a discretionary refusal where the judge applied the established principles and made no error of principle. Later recognition of mitigating factors in a costs decision does not necessarily undermine the substantive decision.

The appellant, a former senior housing lawyer employed by the London Borough of Camden, brought employment claims which were dismissed by the Employment Tribunal. The Employment Appeal Tribunal’s paper sift rejected her original notice of appeal. She then filed a fresh notice one day late under Rule 3(8) of the Employment Appeal Tribunal Rules 1993. The Registrar refused an extension of time, and His Honour Judge Serota QC dismissed her appeal against that refusal in UKEATPA/1396/12/DM.

The Court of Appeal granted permission on the limited question whether the judge’s later costs reasons, which referred to mitigating factors, were inconsistent with his substantive refusal to extend time.

Appeal dismissed unanimously. Lord Justice Rimer gave the leading judgment. Lord Justice Aikens and Sir Stanley Burnton agreed.

1. The Employment Appeal Tribunal has a standard 42-day period for appealing, which is unusually generous. Rule 3(8) of the Employment Appeal Tribunal Rules 1993 also permits a fresh notice of appeal within an additional period. The established practice is therefore to grant an extension only in rare and exceptional cases.
2. The governing guidelines were set out in United Arab Emirates v Abdelghafar [1995] ICR 65. The applicant must provide a full and honest explanation for the default. Relevant considerations include the length of the delay, procedural abuse or intentional default, the merits and prejudice. The merits and absence of prejudice generally carry little weight. The approach was approved in Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111, Jurkowska v Hlmad Ltd [2008] ICR 841 and O’Cathail v Transport for London [2012] IRLR 1011.
3. Judge Serota was entitled to find that the appellant had exaggerated the effect of her stress, had provided no medical evidence, and had deliberately left filing until the last moment. The one-day delay and lack of prejudice did not compel an extension. He had applied the established principles to the facts, and there was no error of principle warranting appellate interference.
4. The later costs reasons did not undermine the substantive judgment. Recognition that there were mitigating factors, including stress and a one-day delay, was compatible with the earlier findings that those matters did not amount to a sufficiently exceptional justification for extending time. The substantive refusal was properly justified.

• Court of Appeal (Civil Division): Dismissed the appeal against the refusal to extend time.
• Employment Appeal Tribunal: His Honour Judge Serota QC dismissed the appellant’s appeal against the Registrar’s refusal to extend time in UKEATPA/1396/12/DM.
• Employment Appeal Tribunal paper sift: Underhill J determined that none of the original grounds disclosed a reasonable ground of appeal.
• London Central Employment Tribunal: Dismissed the appellant’s claims for unfair dismissal, breach of contract, public interest disclosure detriment and discrimination.