H Elhalabi v Avis Budget UK Limited

Where an appeal from an Employment Appeal Tribunal Registrar’s order determines whether a substantive employment appeal may proceed, an application to extend the five-working-day period is governed by the strict Abdelghafar approach. A party must provide a full and acceptable explanation for delay, although exceptional circumstances may exceptionally justify an extension.

Where written reasons have been requested in time but have not been received, a notice of appeal accompanied by a supported explanation may be treated as properly instituted under rules 39(2) and (3) of the Employment Appeal Tribunal Rules 1993. Written reasons should then be supplied as soon as they are received. Failure to monitor a spam folder for an anticipated decision is not ordinarily a good excuse, but an extension may be justified where correcting an earlier erroneous timeliness decision requires the appellant to be restored to the proper position.

The claimant, a litigant in person, sought to appeal an employment tribunal decision dismissing claims for unfair dismissal, race discrimination and notice pay. Before receiving the tribunal’s written reasons, he sent a notice of appeal with an explanation and evidence that written reasons had been requested in time. He later supplied the reasons after the usual 42-day period from their dispatch.

The Registrar held that the substantive appeal had not been properly instituted in time and refused an extension. The claimant’s ensuing appeal against that order was itself late, because the email containing the Registrar’s decision had entered his spam folder. The Registrar refused a further extension. The central issues were the applicable approach to extending time for an appeal from such a Registrar’s order, and whether the original appeal should have been treated as instituted in time.

1. Both appeals from the Registrar’s orders were allowed. Time was extended for the claimant’s late appeal against the first Registrar’s order. That order was replaced with a decision that the substantive appeal from the employment tribunal had been instituted in time.

2. The strict Abdelghafar approach to extensions of time applies to an appeal from a Registrar’s interim order which determines whether an employment appeal was instituted in time or whether time should be extended. Such an order determines whether the proposed appeal may proceed, rather than a routine case-management matter. Notice may be given within five working days from the date on which the decision was sent.

3. The claimant had no good excuse for missing that five-working-day period. He was responsible for ensuring that an anticipated EAT decision sent by post or email came promptly to his attention. It was insufficient that the email had been diverted to spam, particularly as he knew that EAT communications could enter that folder.

4. Nevertheless, the original appeal should have been treated as instituted in time. Written reasons had been requested in time. When the claimant filed his notice of appeal, he explained their absence and supplied supporting emails; he later provided the other missing documents before the relevant period expired. Rules 39(2) and (3) of the Employment Appeal Tribunal Rules 1993 permitted the EAT to authorise the appeal notwithstanding that the period for institution had not commenced. In those circumstances, treating the appeal as instituted furthered expedition, economy and the interests of justice.

5. Paragraph 3.4 of the Practice Direction (Employment Appeal Tribunal Procedure) 2018 did not create a substantive defect where written reasons had been requested in time and were awaited. Once received, they should be supplied to the EAT promptly. The court also held, alternatively, that there was an acceptable excuse or exceptional basis for extending time for the substantive appeal.

6. Since the substantive appeal ought to have been treated as timely, exceptional circumstances required the claimant to be restored to that position by extending time for his appeal against the first Registrar’s order. The substantive appeal was to proceed to paper consideration under rule 3(7).

• Employment Appeal Tribunal: The appeal against the second Registrar’s order was allowed and time was extended for the appeal against the first order. The appeal against the first order was then allowed; the substantive appeal was treated as instituted in time and was to proceed under rule 3(7).
• Employment Tribunal: The tribunal dismissed the claimant’s claims for unfair dismissal, race discrimination and notice pay. No citation for that decision is stated in the judgment.