A Anghel v Middlesex University

An appeal is properly instituted only when the notice of appeal and all required documents are provided within the time limit. Where an ET1 incorporates attached grounds of claim, those grounds form part of the claim and must be supplied, unless a timely explanation is given.

The Employment Appeal Tribunal takes a strict approach to extensions of time. A litigant must give a full, honest and acceptable explanation for delay. A mistaken assumption, made without checking, that a required document had been included is not ordinarily an acceptable excuse. The EAT administration has no duty to identify omissions before the deadline. A short delay, lack of prejudice and litigant-in-person status do not themselves amount to exceptional circumstances.

The claimant’s employment claims, including unfair dismissal and harassment, were dismissed after a full Employment Tribunal hearing. Her application for reconsideration was refused in a decision sent on 5 January 2021.

She sought to appeal that reconsideration decision. Although she submitted her notice of appeal and several documents by the deadline, she did not provide the 76-paragraph grounds of claim incorporated into her ET1 until the following day. The Registrar held that the appeal had therefore been instituted one day late and refused an extension of time.

The claimant appealed the Registrar’s order. The central issues were whether the appeal had been properly instituted in time and, if not, whether her explanation or any exceptional circumstances justified an extension.

1. Appeal dismissed. The appeal against the Registrar’s order, and consequently the proposed substantive appeal, were dismissed.

2. Under Employment Appeal Tribunal Rules 1993, an appeal had to be properly instituted by 4pm on 16 February 2021. The claimant’s ET1 expressly incorporated attached grounds of claim. Those grounds were therefore an essential part of the claim required for institution of the appeal. The entire document was absent until 17 February, and no explanation for its absence was given in time. The appeal was accordingly instituted one day late.

3. The established strict approach to extensions of time, derived from United Arab Emirates v Abdelghafar [1995] ICR 65 and confirmed as continuing by Green v Mears Limited [2019] ICR 771, applied. Finality and certainty are important. The 42-day period is generous, and the appellant bears responsibility for presenting every required document in time.

4. The claimant’s explanation was accepted as factual: she mistakenly assumed, without checking, that the grounds were included in the electronic ET1. That was an error or oversight, not an acceptable excuse. Her prompt correction once notified, her status as a litigant in person, the absence of deliberate default, and the respondent’s lack of practical prejudice did not justify an extension.

5. It was not the EAT administration’s responsibility to identify the omission, or to notify the claimant of it before the deadline. There was no evidence that mental ill health materially impaired her ability to take the necessary steps. Nor did correspondence from the Regional Employment Judge mislead her about the reconsideration decision or prevent a timely appeal. Her wider complaints about the original Tribunal proceedings did not provide exceptional circumstances.

• Employment Appeal Tribunal: dismissed the claimant’s fresh appeal against the Registrar’s refusal to extend time, and dismissed the proposed substantive appeal.
• EAT Registrar: by an order sealed on 12 November 2021, held that the appeal was instituted one day late and refused an extension of time.
• Employment Tribunal: dismissed the claimant’s substantive claims after a full merits hearing. Its reconsideration decision, sent on 5 January 2021, refused reconsideration at the preliminary stage.