Lungu (t/a Len Fowler Trophies) v Shell (Practice and Procedure: Time for appealing)

An Employment Appeal Tribunal appeal must be instituted within 42 days from the date on which the Employment Tribunal’s decision is sent to the parties. Receipt of a later accessible-format version does not alter that starting date, although disability-related disadvantage may be relevant to the discretionary extension of time.

Under Rule 37, an extension is exceptional. The applicant must explain the whole period of default, provide a good explanation, and show circumstances justifying the indulgence. Difficulty obtaining advice, or reliance on alleged informal advice from Employment Tribunal staff, will not suffice where the delay remains unexplained. Supporting documents alone do not institute an appeal: a Notice of Appeal is required.

The Employment Tribunal allowed claims brought by Mr Shell and ordered Mr Lungu to pay £5,503 to the claimant’s estate. Its written reasons were sent by email on 22 July 2014, including a Word attachment. Mr Lungu, who was registered blind, later received Braille versions on 7 November 2014.

He sent appeal documents to the Employment Appeal Tribunal in December 2014 but did not file a Notice of Appeal until 15 January 2015. The Registrar refused his application to extend time. Mr Lungu appealed, contending that time should run only from receipt of Braille documents and relying on his disability and alleged advice from Employment Tribunal staff.

The issue was whether he was in default and, if so, whether the discretion to extend time should be exercised.

1. Appeal dismissed. The Registrar had correctly refused an extension of time. The appeal was not properly instituted until 15 January 2015, when the Notice of Appeal was received.

2. Time ran from 22 July 2014, when the Employment Tribunal sent its written reasons to the parties. The later receipt of Braille documents could be relevant to an extension application, but could not change the date on which time began to run. The court applied the settled rule stated in Sian v Abbey National plc, [2004] ICR 55, and approved in Gdynia America Shipping Lines (London) Ltd v Chelminski, [2004] ICR 1523.

3. Applying the approach in United Arab Emirates v Abdelghafar, [1995] ICR 65, the court asked whether there was an explanation for the default, whether it was a good explanation, and whether exceptional circumstances justified an extension. An explanation must account for the whole period of delay.

4. Reasonable adjustments should alleviate disability-related disadvantage. On the evidence, however, the appellant’s software could read the Word attachment sent on 22 July 2014. He also made a detailed reconsideration application within time. He had therefore not shown that lack of Braille documents prevented him from lodging an appeal.

5. In any event, after receiving the Braille documents, the appellant did not file a Notice of Appeal within a further 42 days. Seeking advice was not a good explanation, and the unexplained delay between sending supporting documents and filing the Notice of Appeal was fatal. Under the Employment Appeal Tribunal Rules 1993, Rule 37, no exceptional basis for the discretionary indulgence was established.

• Employment Appeal Tribunal: dismissed Mr Lungu’s appeal from the Registrar’s order of 13 July 2015 refusing an extension of time.
• London (Central) Employment Tribunal: on 10 June 2014 allowed various claims and ordered payment of £5,503 to the claimant’s estate. No citation was stated in the judgment.