Claudio Costagliola Di Fiore & Anor v Introhive UK Limited

Where an employment tribunal gives separate written reasons for a case-management decision made during a merits hearing, those reasons do not postpone time for appealing the substantive judgment. Time runs from the written reasons sent with that judgment, provided they are objectively the complete reasons for it.

An appeal lodged without mandatory documents is not properly instituted. A genuine but inexcusable omission, later compliance, absence of material prejudice, or a ground alleging procedural unfairness does not of itself justify an extension. An Article 6 contention attracts no separate or more generous limitation rule; the discretion remains fact-sensitive and governed by the ordinary principles.

The claimants' protected-disclosure detriment and unfair-dismissal complaints were dismissed after a full merits hearing. The tribunal sent its reserved judgment and reasons on 8 November 2021. It later sent a separate written record of case-management decisions, including the refusal of a witness order, on 11 February 2022.

The claimants lodged a notice of appeal within 42 days of the substantive judgment, but omitted the ET1 and ET3 forms. They supplied those forms on 18 March 2022, deemed received on 21 March. The Registrar held that the substantive appeal was out of time and refused an extension. The claimants appealed that order, contending that time ran only from the later case-management reasons or that the circumstances justified an extension.

1. Appeal dismissed. The appeal against the Registrar's order was not properly instituted in time, and no extension of time was warranted.

2. Under rule 3(3) of the Employment Appeal Tribunal Rules 1993, time ran from the written reasons accompanying the tribunal's judgment dismissing the claims. Those reasons were objectively the whole reasons for that judgment. The later written reasons for case-management decisions were separate, even though they had been intended to be promulgated at the same time and were mentioned in the substantive reasons. Ameyaw confirmed that separately given written reasons start time for an appeal against the case-management decision itself; it did not make them part of the substantive judgment's reasons.

3. The ET1 and ET3 forms were mandatory documents under the rules then in force. Their complete omission was materially different from the accidental omission of a page in Hine and Fincham. The appeal was therefore properly instituted only when the forms were supplied, after expiry of the 42-day period.

4. The claimants accepted that their genuine error did not amount to a good excuse. Neither that error, later compliance, their efforts to obtain the separate case-management reasons, nor the asserted absence of prejudice to the respondent amounted separately or cumulatively to circumstances justifying an extension. The possibility of seeking reconsideration in the tribunal also meant that success in the separate case-management appeal would not necessarily be without a procedural remedy.

5. Article 6 did not require an extension. Delcourt establishes that an available appeal procedure must itself comply with Article 6, but it does not require limitation rules to be relaxed because a proposed appeal alleges unfairness below. There is no special rule for Article 6-type grounds; each application remains governed by the ordinary extension-of-time framework.

• Employment Appeal Tribunal: The Registrar decided, in an order sent on 10 February 2023, that the appeal from the substantive tribunal judgment had been instituted out of time and declined to extend time.
• Employment Appeal Tribunal: On a fresh determination, HHJ Auerbach dismissed the claimants' appeal from the Registrar's order.
• Employment Tribunal: The tribunal dismissed both claimants' protected-disclosure detriment and unfair-dismissal complaints in a reserved judgment and reasons sent on 8 November 2021.