Alexander Hawkes v Oxford Economics Limited

An extension of time for an Employment Appeal Tribunal appeal requires a full and honest explanation, a good excuse for the default, and circumstances justifying the exceptional grant of an extension. A properly sent email may ordinarily be assumed to reach its recipient within seconds where no bounce-back message is received. An appellant does not necessarily lack a good excuse merely because an email was sent late on the final day, where an unknown technical failure prevented delivery and sending it earlier would not probably have revealed the failure before expiry of time.

The appellant brought an unfair-dismissal claim after his summary dismissal. The Employment Tribunal held that it lacked jurisdiction because the dismissal was not for, or connected with, his membership of a reserve force within the relevant protection in the Defence Reform Act 2014.

He sought to appeal that decision. On the final day for appeal, he emailed the required documents to the Employment Appeal Tribunal. An email attaching the notice of appeal and Employment Judge’s judgment was sent but was not received because of an apparent technical problem. The Registrar refused an extension of time. The appeal was a full rehearing of that order and concerned whether the failed email provided a good excuse and whether an extension was justified.

1. Appeal allowed. The Registrar’s refusal of an extension was set aside. Time for appealing was extended to 19 February 2021.

2. Applying the familiar framework in UAE v Abdelghafar, [1995] ICR 65, the appellant had given a sufficiently full and honest explanation. The central explanation, consistently advanced after the event, was that an email sent at 15.33 containing the notice of appeal and judgment had not reached the EAT because of an unknown technical issue.

3. The appellant had a good excuse for the default. There was no good excuse for delaying preparation and service until shortly before the deadline. His pursuit of hearing notes was unnecessary, and neither illness nor being in Edinburgh prevented electronic service. Those matters, however, were not the immediate cause of the late appeal.

4. The immediate cause was the non-delivery of an email which had in fact been properly sent. In the absence of a bounce-back message, it was reasonable in normal circumstances to assume that it would arrive within seconds. The appellant neither knew nor ought to have known that his connection remained unstable. The absence of an identifiable acknowledgement did not require him to infer, before the deadline, that this particular email had failed.

5. Late service did not materially alter the result. Had the same technical failure occurred earlier, the appellant would probably still not have known of it until after time expired. The delay was only ten days, the respondent knew that an appeal was intended, there was no forensic prejudice or abuse, and the proposed perversity appeal was not hopeless. Taken together, those circumstances justified the exceptional extension.

• Employment Appeal Tribunal: Allowed the appeal from the Registrar’s order and extended time for the proposed appeal: [2022] EAT 179.

• Employment Appeal Tribunal Registrar: By an order sealed on 19 April 2022, refused an extension of time for the appeal against the Employment Tribunal decision.

• Employment Tribunal: In a judgment sent on 29 December 2020, held that it lacked jurisdiction to determine the unfair-dismissal claim and dismissed it.