Governing Body of Tywyn Primary School v Aplin

The strict approach to extensions of time that governs institution of appeals does not automatically apply to cross-appeals. Instead a cross-appeal is reactive in nature and may be governed by the general discretion to extend time under the rules. Where a consent order extends time for filing a Respondent's Answer, that extension will be construed according to the terms of the application and consent and not assumed to grant additional time for a cross-appeal unless clearly intended. Where a Registrar applies the strict appeal principles to a cross-appeal, the EAT may set that decision aside and exercise its section 35 powers to allow an extension.

The claimant, a former head teacher, succeeded at first instance on claims of unfair dismissal and sexual orientation discrimination. The employer appealed. The respondent filed an Answer which included a cross-appeal after the Registrar by consent had extended the time for lodging an Answer. The Registrar held the cross-appeal was late and refused an extension. The respondent appealed that refusal to the EAT. The central issues were (a) whether a consent Order extending time for an Answer also extended to a cross-appeal included within that Answer and (b) whether the strict rules for extending time for appeals apply to cross-appeals. The EAT allowed the appeal and granted the extension under section 35.

1. Appeal allowed. The Registrar's Order refusing an extension for the cross-appeal is set aside and substituted by an order allowing the extension under Employment Tribunals Act 1996 section 35. (Disposition)
2. Construction of consent orders: a consent order extending time to file an Answer is to be construed by reference to the terms of the application and the consent. Consent to extend time to file an Answer does not, without more, signify consent to extend time for a cross-appeal. (Legal principle on construction of orders)
3. Distinct treatment of an Answer's two elements: the Answer may contain two juridically distinct elements—resistance to the appeal and a cross-appeal. Different considerations may apply when deciding whether to extend time for each element. Context matters when construing an order extending time for an Answer. (Practical guidance)
4. Approach to cross-appeals and time limits: the strict approach to extensions of time for institution of appeals (as explained in [1995] IRLR 243 and related authority) does not automatically apply to cross-appeals. Cross-appeals are reactive and may arise only after an appeal is lodged. Policy and practical considerations justify applying the general discretion under the Rules (Rule 37) to cross-appeals rather than the stricter appeal principles. The EAT declines to follow [2009] All ER (D) 150 (Slingsby) on this point. (Ratio)
5. Application of discretion here: the respondent reasonably believed the consent extension covered the whole Answer. No prejudice was shown to the appellant by permitting the cross-appeal. These facts constituted a good excuse and justified allowing the extension. The EAT exercises its power under Employment Tribunals Act 1996 section 35(1) to allow the extension. (Outcome and reasoning)
6. Practical consequence: where a decision maker intends different time limits for parts of the same pleading, that intention should be expressed clearly in the order. Absent clarity, the court may construe the extension to cover the whole document if reasonable. (Guidance for future practice)

• Employment Appeal Tribunal: Appeal from Registrar's Order refusing extension of time for cross-appeal; Order of Registrar of 15 February 2018 set aside; extension allowed under Employment Tribunals Act 1996 section 35 (this judgment).
• Employment Tribunal: Judgment with Reasons dated 28 September 2017 in favour of respondent on claims of unfair dismissal and sexual orientation discrimination (originating decision).