Kinsman v Honeywell Normalair - Garrett Ltd

An extension of time to lodge an Employment Appeal Tribunal appeal requires consideration of the explanation for default, whether it provides a good excuse, and whether exceptional circumstances nevertheless justify an extension. A full and honest explanation does not itself establish a good excuse.

A professionally represented appellant must take effective steps to ensure that critical appeal documents have been received before a strict limitation period expires. Reliance on the postal presumption in Rule 35(3) of the Employment Appeal Tribunal Rules 1993 is inadequate where non-receipt can defeat the appeal. A short delay, lack of prejudice and an asserted windfall to the respondent will not ordinarily make a commonplace administrative failure exceptional.

The Claimant appealed against the Registrar’s refusal to extend time for lodging his proposed appeal from an Employment Tribunal decision which had dismissed his pension-related claims for want of jurisdiction.

The appeal papers were said to have been sent before the 42-day deadline but were not received by the Employment Appeal Tribunal. They were later found in the solicitor’s in-tray without their envelope and were lodged after the deadline. The Claimant’s solicitors could not determine precisely what had happened.

The central issue was whether the explanation for the late appeal, together with the short delay and absence of material prejudice to the Respondent, justified an exceptional extension of time. A consequential application for wasted costs against the Claimant’s solicitors was also determined.

1. Appeal dismissed. The Registrar had correctly refused an extension of time. The applicable enquiry was to identify the explanation for the default, decide whether it amounted to a good excuse, and then decide whether exceptional circumstances nevertheless justified an extension.

2. The Claimant had given a full and honest explanation of matters within his knowledge. The evidence did not require him to call a witness whom he could not reliably present as truthful. On the balance of probabilities, however, the most likely explanation was a failure by the receptionist to post the appeal documents, rather than an unexplained postal mis-delivery.

3. That explanation was not a good excuse. The solicitor had entrusted a critical task to an employee in whom the office manager had lost confidence. The firm also had no system to detect a posting error before expiry of the time limit. A practitioner lodging an appeal in this jurisdiction must appreciate the strict enforcement of time limits and take effective steps to confirm receipt. Rule 35(3) of the Employment Appeal Tribunal Rules 1993 does not protect a party where there is evidence that a document was not received.

4. No exceptional circumstance justified relief. The short period of lateness and absence of substantial prejudice to the Respondent carried some weight, but did not outweigh the absence of a good excuse. A limitation defence is not rendered exceptional merely because refusal of an extension prevents a merits appeal. The suggested effect on unrepresented potential claimants was speculative and negligible.

5. Wasted-costs application refused. Although the solicitors’ earlier negligence caused the need for the extension application, the appeal from the Registrar’s order had been properly brought and conducted. A wasted-costs order would improperly duplicate the consequences of the refusal of the extension.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the Registrar’s order refusing an extension of time.
• Employment Appeal Tribunal Registrar: on 3 January 2017, refused to permit the proposed appeal to proceed out of time.
• Employment Tribunal: Exeter Employment Tribunal dismissed the underlying claims for want of jurisdiction in a reserved decision dated 27 July 2016 and sent on 2 August 2016.