J v K & Anor

The Court of Appeal allowed an appeal against the Employment Appeal Tribunal's refusal to extend time for instituting an appeal from an Employment Tribunal decision. The appellant attempted to serve the notice of appeal by e-mail five minutes before the 4pm deadline but the EAT e-mail server rejected an attachment that exceeded its 10MB limit; the appellant re-sent the papers and they were all received after 4pm and treated as received the next working day. The Court held that, in the particular circumstances (the EAT's own server limit, the very short delay and documents correctly transmitted within an hour), this amounted to exceptional circumstances requiring an extension of time.

The judgment discusses the relevant procedural rules (Employment Appeal Tribunal Rules of Procedure 1993, in particular rules 3(1)(a)(i), 37(1A) and 21) and restates the established approach to extensions of time in appeals to the EAT: strictness where there is no good reason for missing the deadline but recognition that an appellant's disability or mental ill-health is a relevant consideration. The court also gave concise guidance on how mental ill-health should be treated in applications for extensions: (i) establish on the evidence that the applicant suffered mental ill-health at the relevant time, (ii) assess whether it explains or excuses the failure to file in time (medical evidence preferrable but not always essential), and (iii) where mental ill-health did cause the delay an extension will usually be required, subject to balancing other parties' interests.

Background and facts:

• The appellant's claim in the Employment Tribunal was struck out by an order sent on 16 March 2016; the Employment Judge subsequently ordered the appellant to pay the respondents' costs of £20,000 by a written decision sent on 19 August 2016.
• The appellant sought to appeal to the Employment Appeal Tribunal. Under the 1993 Rules of Procedure he had to serve a notice of appeal and specified documents within 42 days of the date the ET's reasons were sent (i.e. by 30 September 2016) and by 4pm under rule 37(1A).
• At 15:55 on 30 September 2016 the appellant sent an e-mail with attachments to the EAT but the attachments were too large for the EAT server (10MB limit). He re-sent the documents as several smaller files and they were all received by the EAT at about 17:00, which meant they were treated as received on the next working day. The Registrar refused an extension of time and the appellant appealed to a Judge under rule 21; HH Judge Hand QC dismissed that appeal.

Procedural posture and issues:

• The appellant obtained permission to appeal to the Court of Appeal on two limited grounds: (1) whether the EAT judge's statements of principle should be modified to take account of the duty to make reasonable adjustments under the Equality Act 2010 and whether reasonable adjustments should have been made for the appellant; and (2) whether the short delay of about one hour caused by the limited capacity of the EAT inbox could amount to exceptional circumstances requiring an extension of time.

Court's reasoning and decision:

• The Court accepted that an ordinary lay person might reasonably expect the EAT to accept the required documents in a single e-mail, and found it surprising that the server capacity was limited to 10MB. The guidance (T440) referring to a 10MB limit existed online but the judge below had found that the appellant had not received the covering letter that would have directed him to that guidance; the Court considered that it was therefore not appropriate to criticise the appellant for ignorance of the limit.
• The Court accepted that leaving lodging to the last minute is generally an important factor against an extension, but held that this case was different because the obstacle arose from the EAT's own system capacity rather than an extraneous event. Given the minimal delay (documents fully transmitted within an hour) and that the EAT server limitation caused the problem, the Court concluded that exceptional circumstances existed and that the Registrar and EAT judge were wrong to refuse an extension.
• Because the appeal was allowed on that ground, the Court did not have to decide the detailed Equality Act point. The Court did, however, set out general guidance on how mental ill-health should be considered in applications for extensions: evidence should show the condition existed at the relevant time (medical evidence preferred but other evidence may suffice); if established, the tribunal should consider whether the condition explains the failure to comply with time limits; and if it does, an extension will usually be required though other parties' interests must be balanced.

Relief sought and disposition:

• The appellant sought an extension of time to institute his appeal. The Court of Appeal allowed the appeal and granted a sufficient extension so that the appellant's appeal to the EAT was rendered in time; the substantive merits of the underlying appeal were not decided and remain for the EAT's usual processes (sift and adjudication).

Appeal allowed. The Court of Appeal held that, given the Employment Appeal Tribunal server's 10MB limit and the appellant's attempt to serve the appeal documents five minutes before the 4pm deadline such that the documents were properly transmitted within about an hour, the circumstances were exceptional and required an extension of time. The court also provided guidance on the approach to mental ill-health in extension applications: establish mental ill-health by evidence (preferably medical), assess whether it caused or materially contributed to non-compliance, and if so an extension will usually be appropriate subject to balancing other interests.

Appeal from the Employment Appeal Tribunal (HH Judge Hand QC) which had dismissed the appellant's application for an extension of time (judgment handed down 10 May 2017). Permission to appeal to the Court of Appeal was granted by Lewison LJ on limited grounds. The Court of Appeal allowed the appeal ([2019] EWCA Civ 5).