Trafalgar Construction Corporation Ltd v Singh

An appeal is not properly instituted within the 42-day period unless it complies with the required Rules and Practice Direction. Where written reasons are absent, this includes a written explanation for their absence and, where applicable, an application asking the Employment Appeal Tribunal to proceed without reasons or obtain them.

A failure to provide required material or explanation is to be treated in the same way as a late notice of appeal. On an application to extend time, the Tribunal must require a full, honest and good explanation for the default. Exceptions require good reason. The apparent merits of an appeal will usually carry little weight, particularly where a party relies on inadequate reasons but failed to take available steps to obtain them.

The Employment Tribunal gave judgment for Mr Singh after Trafalgar Construction Corporation Ltd neither attended nor was represented at the hearing. Trafalgar lodged a notice of appeal on the last permitted day, but did not attach written reasons or give the required written explanation for their absence.

The Registrar later extended time, principally because no written reasons existed. Mr Singh appealed from that order. The Employment Appeal Tribunal reconsidered the extension application afresh. The central issue was whether the omission was to be treated as a late appeal and, if so, whether the employer had shown a sufficient basis for an extension.

1. Appeal allowed. The Registrar’s order extending time was set aside, and Trafalgar’s proposed appeal from the Employment Tribunal was dismissed as out of time.

2. Rule 3(1)(c) of the Rules of the Employment Appeal Tribunal 1993 required a notice of appeal to include written reasons or an explanation for their absence. Paragraphs 3.1, 3.3 and 3.4 of the Practice Direction 2013 reinforced that requirement. A written explanation is itself required material. Its omission means that an appeal has not been properly instituted.

3. Following Kanapathiar and Aziz, there can be no separate, more lenient class of cases where a notice is lodged in time but required documents or text are missing. Such an appeal must be treated in the same way as one lodged late. Consistency, legal certainty and fairness between litigants require that approach.

4. Applying United Arab Emirates v Abdelghafar and Anr, the Tribunal considered the explanation for default, whether it was a good excuse, and whether the circumstances justified the exceptional step of extending time. Trafalgar had no good explanation for omitting the required explanation. It knew, within time, of the need to seek written reasons and had an opportunity to do so. Its proposed ground that the Employment Tribunal had given inadequate reasons also made the omission especially material.

5. The limited apparent merits of the proposed appeal and the availability of a contractual county court claim did not justify an extension. This was not a case in which justice required departure from the strict approach.

• Employment Appeal Tribunal: allowed Mr Singh’s appeal from the Registrar’s order of 19 March 2014 and refused Trafalgar Construction Corporation Ltd an extension of time.
• Employment Tribunal: gave judgment for Mr Singh on 29 August 2013. No citation is stated in the judgment.