MTN-1 Limited v David Ross O’Daly

An appeal is properly instituted where the appellant supplies the tribunal judgment containing the reasons actually given, explains the absence of a claim form, and no response form exists because none was lodged. Reasons need not appear in a separate document or under a distinct heading.

Where late institution is attributed to mental ill-health, the tribunal should apply the guidance in [2019] ICR 815. It must establish the condition, assess whether it materially explains the delay, and then consider whether countervailing circumstances make an extension unjust. An applicant’s ability to act in other areas is relevant but does not necessarily show an ability to institute an appeal.

The claimant, a former Operations Director, brought unfair-dismissal and wrongful-dismissal claims. The Employment Tribunal entered a judgment under rule 21 after the respondent had not presented a response, awarding compensation.

The respondent sought to appeal that judgment. Its notice of appeal was emailed after 4 pm on the final day. The EAT Registrar held that the appeal had been properly instituted only later and refused an extension of time. The respondent appealed that order by way of rehearing.

The central issues were whether the original email and attachments had properly instituted the appeal and, if it was late, whether the mental impairments of the respondent’s chief executive justified an extension of time.

1. Appeal against the Registrar’s order allowed. The first appeal was properly instituted by the email and attachments sent on 8 June 2020. It was deemed instituted on the next working day because it was sent after 4 pm, and was therefore one day late.

2. The Employment Tribunal’s document headed “Judgment” contained the reasons which it had in fact given. It recorded the absence of a response, the judge’s consideration of the tribunal file, and the basis of the monetary calculations. Reasons need not be in a separate document or under a conventional reasons heading. Their adequacy or soundness was not for determination on this appeal.

3. No response form had been lodged when the appeal was instituted. The absence of that document did not prevent proper institution. The respondent also gave an explanation, reflecting its chief executive’s understanding at the time, for not supplying the claim form.

4. Applying the guidance in J v K, [2019] ICR 815, the judge found on the balance of probabilities that the chief executive had ADHD and depression. Those impairments, in combination with the business and personal circumstances, materially and substantially explained the failure to institute the appeal in time. His ability to deal with other business matters did not displace that conclusion because the evidence established that he was hyper-focused on those matters and unable to turn to the appeal.

5. The delay was only one day and no compelling countervailing circumstance made an extension unjust. Time was extended.

• Employment Appeal Tribunal: appeal against the Registrar’s order allowed; the first appeal was held to have been instituted one day late and time was extended.

• Employment Appeal Tribunal Registrar: by an order sealed on 24 June 2022, the Registrar treated the first appeal as properly instituted out of time and declined to extend time.

• Employment Tribunal, London Central: on 27 April 2020, the tribunal entered a rule 21 judgment for the claimant after no response had been received. A later reconsideration application and application to present a response were refused; the respondent’s separate appeal from that decision remained pending.