Nicol v Blackfriars Settlement

An appeal to an Employment Appeal Tribunal judge from a registrar’s refusal to extend time is a rehearing, not a review limited to whether the registrar’s decision was reasonable. The judge must exercise the discretion afresh, having regard to the evidence and all relevant circumstances.

Where the judge has misdirected themself in exercising that discretion, an appellate court should remit the matter unless only one lawful outcome was possible. A brief delay caused by an omitted document does not alone justify an extension, but additional circumstances may make an extension arguable and require fresh determination.

The appellant sought to challenge an Employment Tribunal decision. He lodged his Employment Appeal Tribunal appeal shortly before the deadline but omitted the Tribunal’s written reasons. He supplied them 33 minutes after time expired and applied for an extension.

The registrar refused the application. HH Judge Tucker, sitting in the Employment Appeal Tribunal, dismissed the appellant’s appeal from that refusal. The appellant contended in the Court of Appeal that the judge had wrongly treated her role as a review of the registrar’s decision, rather than a rehearing. The central issue was the proper appellate function and whether the matter should be remitted for a fresh exercise of discretion.

1. Permission was granted, the appeal was allowed, and the extension-of-time question was remitted to the Employment Appeal Tribunal. Henderson LJ agreed with Underhill LJ.

2. An appeal under rule 21 of the Employment Appeal Tribunal Rules 1993 from a registrar’s refusal to extend time proceeds by way of a rehearing. It is not confined to conventional review of the registrar’s decision. The registrar’s function is not primarily judicial, the initial decision is made on paper, and the appeal judge may hear evidence. Those features justify an appellate exercise of the discretion afresh.

3. The EAT judge’s concluding statement that the registrar’s decision was legitimate, lawful and based on a careful balancing exercise showed that she had applied a review standard. Earlier observations in her judgment did not displace that express reasoning. She had therefore misdirected herself as to the extent of her appellate function.

4. Where a tribunal has misdirected itself in exercising a discretion, remittal is unnecessary only if a correct exercise could properly produce one conclusion. Applying that approach, the Court could not say that refusal of an extension was inevitable. The strict approach in [1995] ICR 65 and [2008] EWCA Civ 231 means that a short delay and a missing ancillary document are not, without more, sufficient. However, the appellant’s bereavement and absence abroad until shortly before the deadline were capable of constituting additional circumstances requiring assessment by the EAT.

5. The Court expressed no view on whether an extension should ultimately be granted or on the merits of the underlying Employment Tribunal appeal.

• Court of Appeal (Civil Division) — allowed the appeal and remitted the extension-of-time issue to the Employment Appeal Tribunal: [2018] EWCA Civ 2285.
• Employment Appeal Tribunal — HH Judge Katherine Tucker dismissed the appellant’s appeal from the registrar’s refusal to extend time.
• Employment Appeal Tribunal Registrar — refused an extension of time for instituting the appeal from the Employment Tribunal.
• Employment Tribunal — the original decision was made in August 2016; a reconsideration application was dismissed on 30 January 2017.