J v K & Anor

An extension of time for appealing to the Employment Appeal Tribunal may be required where timely filing is prevented by an unexpected limitation in the tribunal’s own system which was insufficiently notified to the appellant. Leaving filing until the last minute remains important, but is not an absolute bar.

Mental ill-health which caused or substantially contributed to late filing will usually justify an extension. The tribunal should consider whether independent evidence establishes the condition, whether it explains or excuses the default, and whether justice requires an extension. These principles apply even where the condition is not a disability within the Equality Act 2010.

The appellant sought to appeal against an Employment Tribunal costs order. He emailed the required documents five minutes before the 4 p.m. deadline. The email failed because its attachment exceeded the Employment Appeal Tribunal server’s 10MB limit. He divided the documents into smaller files, all of which arrived within the following hour.

The Registrar refused an extension of time. HH Judge Hand QC dismissed an appeal from that decision, finding that the appellant had left filing too late and could have discovered published guidance about the server limit. Permission to appeal was granted on the server limitation and on the relevance of the appellant’s mental ill-health, including whether reasonable adjustments were required.

The central issues were whether the EAT’s insufficiently notified server limitation created exceptional circumstances requiring an extension and how mental ill-health should affect that discretion.

1. The appeal was allowed unanimously. The appellant received an extension sufficient to make his EAT appeal timely. Its merits remained for consideration under the EAT’s ordinary sift process: paras [47]–[49].
2. An ordinary layperson could reasonably expect the EAT’s email system to accept the documents which its rules required. Although published guidance disclosed the 10MB limit, the appellant had not received the covering letter leading parties to that guidance. It was inappropriate to criticise him for failing to discover surprising information in guidance which he had not been advised to consult: paras [24]–[26].
3. Filing at the last minute without good reason is an important discretionary consideration where an unexpected obstacle occurs, but it is not an absolute bar. Here the obstacle was the limited capacity of the EAT’s own system, rather than an external mishap. The appellant’s reasonable ignorance of that limitation satisfactorily explained the default. Alternatively, any failure to find the guidance was venial. Because correct service followed within an hour, justice required an extension in these exceptional circumstances: paras [27]–[30].
4. The mental-health ground was unnecessary to the disposition. Nevertheless, mental ill-health or another disability which contributes to late filing is always important. This follows from the ordinary requirement that judicial discretion take account of relevant considerations, rather than from the Equality Act 2010, whose Schedule 3 excludes judicial decisions: paras [32]–[36]. A serious episode may be relevant even if it does not satisfy the Act’s duration-based definition of disability: para [38].
5. The EAT should ask whether independent evidence establishes mental ill-health at the relevant time; whether the condition explains or excuses the default, alone or with other reasons; and whether justice requires an extension. Medical evidence addressing functional impairment is helpful but not essential. Ability to function elsewhere is relevant but not necessarily decisive. Where mental ill-health wholly or substantially caused the default, justice will usually require an extension, subject particularly to the length of delay and the other party’s interests: paras [39]–[40].
6. Had the mental-health ground been decisive, it would have failed. Judge Hand permissibly found no adequate causal impairment, having considered the appellant’s effective litigation activity during the relevant period. An adjournment for retrospective medical evidence was not required on these facts, although justice may require one where an applicant remains seriously unwell: paras [42]–[46].

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. An extension was granted sufficient to render the appeal to the Employment Appeal Tribunal timely: [2019] EWCA Civ 5.
2. Employment Appeal Tribunal: HH Judge Hand QC dismissed the appellant’s rule 21 appeal against the Registrar’s refusal to extend time.
3. Employment Appeal Tribunal Registrar: The application for an extension was refused on the papers.
4. Employment Tribunal: Employment Judge Jones struck out the claim and subsequently ordered the appellant to pay the respondents £20,000 in costs.