Carroll v Mayor’s Office for Policing and Crime

The 42-day period for instituting an Employment Appeal Tribunal appeal runs from the physical sending of the employment tribunal’s written judgment and reasons. This remains so where the documents were wrongly addressed and were not received. The distinction between sending under rule 3(3) of the Employment Appeal Tribunal Rules 1993 and delivery under the employment tribunal rules is material.

Where claims have been heard together, the proceedings include the co-claimant’s case. The prospective appellant must provide that co-claimant’s pleadings or explain their absence. Extensions of time are exceptional. The whole period of delay must be explained, and extreme diligence is required once the existence of the judgment is known. Legal-adviser fault may be considered, but normally carries little weight.

Two police helicopter engineers brought separate unfair-dismissal claims after both were summarily dismissed for gross misconduct. Their claims were heard together. The employment tribunal sent its judgment and written reasons to an address associated with the co-claimant’s trade union representative rather than to Mr Carroll’s notified address.

Mr Carroll’s solicitors eventually obtained the judgment and reasons and presented a notice of appeal. They initially omitted the co-claimant’s ET1 and ET3 forms. The Registrar treated the appeal as 166 days late and refused an extension of time. Mr Carroll appealed that order, arguing that time had not begun until proper delivery and that the co-claimant’s pleadings were unnecessary.

1. Appeal dismissed. The appeal had not been properly instituted within the period specified by rule 3(3)(a)(i) of the Employment Appeal Tribunal Rules 1993, and the discretion to extend time was refused.
2. Time ran from 15 August 2013, when the employment tribunal physically sent the judgment and written reasons, despite the documents having been wrongly addressed and not received by the appellant. Sian v Abbey National plc [2004] ICR 55; [2004] IRLR 185 was applied. Rule 3(3) served a different function from rules 86 and 90 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. A document could therefore be sent for the purposes of the EAT Rules even though it had not been delivered under the ET Rules.
3. Under rule 3(1)(b), where two claims were heard together, the proceedings comprised both claims. The appellant had to provide the co-claimant’s claim and response or explain why they were absent. The omission meant that the appeal was not properly instituted until the documents were supplied.
4. The discretion to extend time was exceptional. The Tribunal considered certainty and finality, the length and explanation of the whole delay, the need for compliance with the stipulated documents, prejudice, merits and any procedural abuse. Once the appellant knew by 9 October 2013 that written reasons existed, he and his advisers had to act with extreme diligence. Their subsequent conduct did not meet that standard.
5. Legal-adviser fault could be a factor, following Muschett v Hounslow London Borough Council [2009] ICR 424, but little weight should generally be given to it unless responsibility clearly rested entirely with the advisers. The evidence did not establish a sufficiently clear case.

• Employment Appeal Tribunal: The Registrar refused an extension of time on 8 September 2014. Sitting alone, His Honour Judge Hand QC dismissed the appeal against that order.