Green v Mears Ltd

The Employment Appeal Tribunal may maintain its established strict approach to extending the time for appealing. The later approach under the Civil Procedure Rules does not supersede or require modification of that specialist procedural jurisprudence.

An appellant will ordinarily need a full and honest explanation amounting to a good excuse. Even without a good excuse, exceptional circumstances may justify an extension. The discretion remains flexible and requires consideration of all relevant circumstances, but finality and promptness carry particular weight after a decision on the merits.

Specialist tribunals should consider the procedural approach of the courts, but may legitimately adopt a different balance between flexibility, predictability and compliance with time limits.

The appellant's unfair dismissal claim was dismissed by an Employment Tribunal. He sought reconsideration before appealing to the Employment Appeal Tribunal. His appeal was formally instituted about 73 days after the applicable deadline.

The Employment Appeal Tribunal Registrar refused an extension of time. HH Judge Eady QC dismissed an appeal from that refusal after finding that the appellant had neither explained the whole delay nor provided a good excuse or exceptional grounds.

The Court of Appeal considered whether the established strict guidance governing late appeals to the Employment Appeal Tribunal had been superseded by the approach to procedural defaults developed under the Civil Procedure Rules.

1. Appeal dismissed. The Employment Appeal Tribunal was entitled to apply its established guidance on extensions of time. That guidance had repeatedly been upheld by the Court of Appeal and remained binding: per Underhill LJ, with whom Leggatt LJ and Sir Brian Leveson P agreed.

2. The established approach is strict but not rigid. Ordinarily, an applicant must provide a full and honest explanation which amounts to a good excuse. The tribunal must nevertheless consider all relevant circumstances. Exceptional circumstances may justify an extension even where the explanation does not amount to a good excuse. The exceptional character of a case is not itself a freestanding criterion.

3. The guidance in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v T.H. White Ltd [2014] EWCA Civ 906, as extended to appellate time limits in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, did not displace the Employment Appeal Tribunal's approach. Earlier Court of Appeal decisions had expressly accepted that the Employment Appeal Tribunal could adopt a stricter approach than the ordinary courts. The later reformulation of the courts' approach did not undermine that conclusion.

4. Different courts and tribunals may legitimately balance procedural compliance, finality, access to adjudication, flexibility and predictability differently. Specialist tribunals should pay close regard to the procedural jurisprudence of the courts, but their different rules and institutional circumstances may justify a different approach. The Employment Appeal Tribunal was therefore not legally obliged to assimilate its practice to the Civil Procedure Rules.

5. There was no error of law in HH Judge Eady QC's assessment. She had considered the appellant's explanations, found that they did not cover the whole period of delay, and reasonably concluded that there was neither a good excuse nor exceptional grounds for extending time.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Employment Appeal Tribunal's established approach to extensions of time had not been superseded by the Civil Procedure Rules jurisprudence.

2. Employment Appeal Tribunal: HH Judge Eady QC dismissed the appellant's appeal from the Registrar. She found that the appellant had not explained the whole delay, had no good excuse and had shown no exceptional grounds for an extension.

3. Employment Appeal Tribunal Registrar: The application to extend time for instituting the appeal was refused.

4. Employment Tribunal: The appellant's unfair dismissal claim was dismissed.