Haydar v Pennine Acute NHS Trust

When an Employment Appeal Tribunal appellant posts a notice in good time but receives no acknowledgement, postal loss may excuse the initial delay. Responsibility later shifts to the appellant to check receipt after a reasonable time, especially where clear tribunal guidance explains when to do so.

Failure to follow that guidance can defeat an extension application, even where the original posting was timely and the loss was not the appellant’s fault. The same result may follow under the three-stage approach concerning seriousness, good reason, and justice and proportionality. Courts remain cautious about examining the merits of a proposed appeal in detail.

The appellant, a doctor, brought Employment Tribunal proceedings against his employer for unfair dismissal and discrimination. The discrimination claims were dismissed, while the unfair dismissal claim succeeded subject to a 50 per cent deduction for contributory conduct.

He posted an appeal package to the Employment Appeal Tribunal before the time limit expired, but it was not recorded as received. He sent a further package after the deadline and applied for an extension. The Registrar refused the application, and HHJ Peter Clark dismissed the appeal against that refusal. The central issue was whether the appellant had a reasonable excuse for failing to check promptly that the first package had been received.

Appeal dismissed unanimously. The Court of Appeal upheld HHJ Peter Clark’s refusal to extend time for the Employment Appeal Tribunal appeal.

1. Under the conventional approach derived from Abdelghafar v United Arab Emirates [1995] ICR 65, loss of an appeal package in the post may provide a good reason for the initial period of delay. Responsibility then shifts to an appellant who has not heard from the tribunal to take the initiative and check receipt after a reasonable time.
2. Peters v Sat Katar Co Ltd [2003] EWCA Civ 943 was distinguishable. In Peters, an inexperienced litigant in person had not been given guidance requiring her to check for acknowledgement. Here, the covering letter expressly directed the appellant to read the judgment booklet, which stated that the EAT should be contacted if no acknowledgement was received within seven days. That guidance set the reasonable parameters for conduct, while allowing limited latitude. The appellant’s failure to read it, together with his previous experience of EAT appeals and prompt acknowledgements, meant that he had no reasonable excuse for the continuing delay.
3. The court also considered the alternative Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v TH White & Co [2014] EWCA Civ 906 and Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633 approach. The delay was serious or significant, there was no good reason for a substantial part of it, and refusing an extension was neither unjust nor disproportionate.
4. The court did not undertake a detailed merits assessment. Courts are generally cautious about doing so on extension applications. The proposed appeal did not have sufficiently strong prospects to affect the outcome.

The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against the refusal to extend time.
• Employment Appeal Tribunal: HHJ Peter Clark dismissed the appeal against the Registrar’s refusal of an extension.
• Employment Tribunal: dismissed the discrimination claims and upheld the unfair dismissal claim subject to a 50 per cent deduction for contributory conduct.