J v K & Anor

An Employment Appeal Tribunal appeal must be properly instituted by 4pm on the final day of the 42-day period. Employment Appeal Tribunal Rules 1993, rule 39(1), does not validate a late appeal. It applies only after proceedings have been properly instituted; alternatively, a refusal to extend time is a direction that prevents validation under that rule.

An extension is exceptional. The proposed appellant must give a full, honest and acceptable explanation for the whole period of default. A short delay does not itself justify relief. A disability-based explanation requires evidence directed to the individual and showing how the condition prevented timely compliance. General internet material about medical conditions is insufficient.

The appellant challenged the Registrar’s refusal to extend time for a Notice of Appeal against an Employment Tribunal costs order of £20,000. The appeal documents were completed by email at 5pm on the final day, one hour after the applicable 4pm deadline. The appellant had initially attempted to send a single electronic file which was too large for the Tribunal’s email system.

He contended that the deadline expired at midnight, or that rule 39(1) of the Employment Appeal Tribunal Rules 1993 automatically preserved the appeal. Alternatively, he relied on HIV status, mental ill health, competing demands and the prejudice caused by the costs order. The central issue was whether time should be extended for a late appeal.

1. Appeal dismissed. The Notice of Appeal was late. Rule 37(1A) of the Employment Appeal Tribunal Rules 1993 required an act to be done by 4pm on the specified day. That mandatory statutory rule governed an appeal to the EAT, irrespective of general rules concerning expiry of time at midnight.

2. Rule 39(1) did not assist the appellant. Properly construed, there were no proceedings to which that rule could apply until an appeal had been properly instituted. If proceedings nevertheless began upon late or incomplete filing, rule 39 had to be read consistently with rule 37: refusal of an extension was a direction that the proceedings were invalid.

3. The discretion to extend time had to be exercised judicially by reference to the established guidance. The Tribunal had to examine the whole 42-day period and require a full, honest and acceptable explanation. The crucial issue was the excuse for the delay, rather than its short duration. An appellant who leaves filing until the end of the period assumes the risk that a technical difficulty will prevent timely filing.

4. The appellant had not established that disability prevented compliance. The material drawn from internet publications described conditions generally, but did not provide patient-specific medical evidence of diagnosis, functional impact, or a causal explanation for the missed deadline. His ability to pursue other matters and meet another appeal deadline also undermined the asserted inability to comply.

5. The appellant had left insufficient time to transmit the required documents after discovering that the single file was too large. The publicly available guidance clearly addressed both the 4pm deadline and email file-size limits. The potential prejudice arising from the costs order did not outweigh the inadequate explanation, and the proposed appeal did not disclose sufficiently strong merits to justify an exceptional extension.

• Employment Appeal Tribunal: The Registrar refused an extension of time under the Employment Appeal Tribunal Rules 1993. On the appellant’s appeal under rule 21, the Judge upheld that refusal and dismissed the appeal.
• Employment Tribunal: An Employment Tribunal at Leeds assessed the second respondent’s costs at £20,000 and ordered the appellant to pay that sum. No citation is stated in the judgment.