Enver v Simon Jones Superfreight Ltd

A cross-appeal has the same juridical character as an appeal because each seeks to undo part of the tribunal’s decision. Applications to extend the time for commencing either should therefore be approached strictly, particularly where refusal gives the opposing party the practical benefit of a limitation defence.

An application made before expiry does not automatically attract the more favourable approach applicable to a genuinely prospective extension. Where it is made at the eleventh hour and cannot realistically be determined before the deadline, it will not normally alter the result. The significance of the procedural step matters: the Tribunal may be more flexible about minor steps than about a deadline for instituting an appeal or cross-appeal.

The Employment Tribunal upheld the claimant’s contractual claim but rejected his contention that he was an employee for the required qualifying period. The claimant appealed part of that decision.

After a Preliminary Hearing, the respondent was ordered to file any Answer and cross-appeal within 14 days. It sought a seven-day extension one day before the deadline, principally because its chosen counsel had been on holiday. The Registrar extended time for the Answer but refused an extension for the cross-appeal. The respondent appealed that refusal.

The central issue was whether an undetermined application made shortly before expiry required a materially different approach from the strict approach to time limits for appeals and cross-appeals.

1. Appeal dismissed. The Registrar correctly refused to extend time for the respondent’s cross-appeal.

2. The distinction in the EAT Rules of Procedure between instituting an appeal and delivering a cross-appeal did not justify a different approach. Both have the same juridical nature because each seeks to reverse or modify part of the decision below. The strict approach to extensions of time applicable to appeals therefore also applies to cross-appeals.

3. The Tribunal distinguished a genuinely prospective application for more time from this application. Although it was made before the deadline, it was made only one day before expiry and could not realistically have been determined in time. It was therefore not a straightforward pre-expiry extension application and could not materially improve the respondent’s position.

4. Greater strictness is justified where the deadline determines whether the opposing party acquires a limitation defence. Such deadlines promote certainty that appellate proceedings will not be commenced after expiry. The Tribunal may be more willing to extend time for a comparatively minor procedural step, such as filing a skeleton argument or bundle, than for a make-or-break deadline to institute an appeal or cross-appeal.

5. The decision accorded with the existing EAT and parallel civil-procedure jurisprudence. The respondent’s eleventh-hour application, based on counsel’s holiday, did not warrant an extension.

• Employment Appeal Tribunal: dismissed the respondent’s appeal against the Registrar’s order of 14 September 2017 refusing an extension of time to file a cross-appeal.
• Employment Tribunal, London South: awarded the claimant £2,343 for money due under his contract, but held that he had not been an employee for the necessary two-year qualifying period.