Acetrip Limited v. Dogra

An extension of time for an appeal to the Employment Appeal Tribunal requires a fact-sensitive assessment of the explanation for default, whether it provides a good excuse, and whether exceptional circumstances justify the indulgence. The approach is strict because finality is particularly important at the appellate stage.

Unexpected circumstances may excuse a short failure to meet the 4pm filing deadline where they leave a party unexpectedly responsible for filing and the party has not been alerted to the cut-off. However, failure to file essential accompanying documents, or promptly to check that they were received, is not excused by avoidable carelessness. The absence of a clear and satisfactory explanation for that default prevents an extension.

The Employment Tribunal upheld the claimant's claims of automatically unfair dismissal for protected disclosures and assertion of a statutory right, and unpaid wages. The respondent sought to appeal.

Its appeal papers reached the Employment Appeal Tribunal after the 4pm deadline. More importantly, the ET1 and ET3 were not supplied until about four weeks later. The Registrar refused an extension of time and the respondent appealed that order.

The central issue was whether the circumstances surrounding the late and incomplete institution of the appeal provided a good excuse or exceptional circumstances sufficient to justify an extension.

1. Appeal dismissed. The Judge declined to extend time. Although the appeal papers sent on the final day were late, the failure to provide the ET1 and ET3 meant that the appeal was not properly instituted until 23 May 2018.

2. The established approach requires a strict, fact-sensitive assessment of the explanation for default, whether it amounts to a good excuse, and whether exceptional circumstances justify an extension. The merits of a proposed appeal ordinarily carry little weight. The court must consider events across the whole 42-day period, with particular attention in practice to events as the deadline approaches.

3. The respondent had a good excuse, or exceptional circumstances, for the late receipt of the documents actually sent on 23 April. Its consultant had reasonably believed that direct-access counsel or chambers would file the appeal. He learned only on the Thursday before the Monday deadline that he had to do so himself. He was also dealing with an immediate family bereavement, had to arrange scanning on the last day, and had not been specifically alerted to the 4pm cut-off. Had those been the only defaults, an extension would have been granted.

4. The omitted ET1 and ET3 required a different conclusion. The consultant knew those documents were required and had been reminded to lodge all documents listed in the Notice of Appeal. They were available and could readily have been attached, or a timely explanation could have been provided. The failure to send them, and the later failure to discover the omission, resulted from avoidable carelessness or insufficient proactive attention. The EAT had no duty to identify the omission; it was for the appellant to check that every required document had been received.

5. There was therefore neither a sufficient explanation nor circumstances sufficiently exceptional to excuse the omission. The Registrar's refusal of an extension stood.

• Employment Appeal Tribunal: Appeal against the Registrar's refusal to extend time dismissed: [2019] UKEAT 0329_18_0103.
• Employment Tribunal: The Tribunal upheld claims of automatically unfair dismissal and unpaid wages. No citation for that decision was stated in the judgment.