Rogers v Whaddon House Ltd & Ors

An extension of time for a late Employment Appeal Tribunal appeal is exceptional. The applicant must provide a full, honest and acceptable explanation for the whole period of delay. The Tribunal should remain alert to intentional default, procedural abuse and questionable tactics.

An appeal from a Registrar’s refusal to extend time is a fresh exercise of discretion. The EAT may consider all relevant material properly before it, rather than only material before the Employment Tribunal, and may take account of the prospective appeal’s merits.

The Claimant appealed against the Registrar’s refusal to extend by four days the time for appealing an Employment Tribunal order. The Employment Tribunal had struck out claims against the second and third respondents, found the unfair-dismissal claim against the first respondent had little prospect of success, and struck out the disability-discrimination claim.

The initial explanation for lateness was a printing problem. The later extension application also relied on the Claimant’s alleged lack of capacity to instruct his representative during the 42-day appeal period. The central issues were whether relevant material outside the Employment Tribunal bundle could be considered and whether the explanation justified an extension.

1. Appeal dismissed. The Judge declined to extend time and therefore refused the appeal from the Registrar’s order.

2. This was a stand-alone appeal against the Registrar’s exercise of discretion. It required a fresh decision, while treating the Registrar’s reasons as relevant. The restriction in Rule 8 of the Employment Appeal Tribunal Practice Direction 2013 concerned substantive appeals and did not prevent consideration of relevant material on an extension-of-time appeal. All material properly before the Judge could therefore be considered.

3. Applying United Arab Emirates v Abdelghafar and Abbas, an extension required a full, honest and acceptable explanation. Applying Muschett v London Borough of Hounslow, the explanation had to address the relevant appeal period and the merits could be considered as part of the discretionary assessment.

4. The capacity explanation failed. The later specialist report and the Claimant’s signed statements in separate proceedings supported capacity during the material period. The representative gave no coherent explanation reconciling those documents with the assertion of incapacity. Even without the additional evidence, there was no basis for finding incapacity throughout the 42 days.

5. The original printing explanation had been abandoned. The delayed and inconsistent reliance on incapacity, together with the earlier non-compliance with Employment Tribunal orders and lack of candour, amounted to the questionable tactics and procedural abuse against which United Arab Emirates v Abdelghafar and Abbas cautioned. The proposed grounds disclosed no concern that an otherwise arguable appeal would be lost.

• Employment Appeal Tribunal: appeal from the Registrar’s refusal to extend time dismissed.
• Employment Tribunal: Employment Judge Grewal’s order dated 26 October 2015, sent on 5 November 2015, struck out claims and made related case-management orders. No citation was stated.