S Palihakkara v The English Sport Council

An application to extend time for an Employment Appeal Tribunal appeal requires a good explanation for the default throughout the whole period of delay and circumstances justifying the exceptional grant of an extension. Mental ill-health is relevant, but evidence that an appellant was able to take effective steps in the same proceedings may show that the condition did not explain or excuse the failure to appeal.

Even where mental ill-health contributed to default, a very long delay, an academic appeal, and an appeal with no merit may mean that justice does not require an extension. The discretion under rule 37 of the Employment Appeal Tribunal Rules 1993 is exercised afresh on an appeal from the Registrar.

The claimant sought to challenge the Registrar’s refusal to extend time for an appeal from a case-management decision of the Employment Tribunal sent to the parties on 8 April 2019. The proposed appeal was lodged on 25 March 2021, 675 days after expiry of the 42-day time limit.

The claimant relied on depression, anxiety and other health difficulties. She contended that the unless order made by the Employment Tribunal was unfair and had been procured by misrepresentation. During the period of delay, however, she had lodged other appeals and had articulated substantially the same complaints in Employment Tribunal hearings. The merits hearing of her substantive claims had also taken place and the claims had been dismissed.

The central issue was whether the claimant had shown a good explanation and exceptional circumstances warranting an extension of time.

1. Appeal dismissed. The President exercised the discretion afresh and refused an extension of time under rule 37 of the Employment Appeal Tribunal Rules 1993.

2. The applicable questions were those in United Arab Emirates v Abdelghafar and anor: what explained the default; whether that was a good explanation; and whether circumstances justified the exceptional grant of an extension. An explanation ordinarily had to cover the whole period for which the appeal was late. The 42-day limit was clear and generous; self-representation did not excuse ignorance of it.

3. The claimant had established that she suffered mental-health difficulties during the relevant period. Nevertheless, following J v K, the decisive further question was whether that condition explained or excused her failure to appeal in time. It did not. She had lodged an in-time appeal against another Employment Tribunal decision shortly after the decision now challenged. She later identified and articulated the same complaints in Tribunal hearings and in a further appeal.

4. In any event, the evidence did not explain the entire 675-day delay. The medical evidence did not show that the claimant’s depression and anxiety prevented her from instituting this appeal, despite their effect on her engagement with the proceedings. There was therefore no good explanation.

5. No exceptional circumstances justified the extension. The delay was very substantial. The claimant had complied with the unless order, so the proposed appeal was academic; the substantive claims had proceeded to a full merits hearing. There was no proper basis for alleging that the respondent had misrepresented matters to the Tribunal, and the proposed appeal was without merit.

• Employment Appeal Tribunal: The appeal from the Registrar’s order refusing an extension of time was dismissed: [2023] EAT 27.
• Employment Appeal Tribunal Registrar: By order sealed 20 April 2022, the Registrar refused to extend time for an appeal lodged 675 days late.
• Employment Tribunal: Employment Judge Hodgson’s case-management decision at a preliminary hearing on 1 April 2019 was sent to the parties on 8 April 2019. The proposed appeal concerned that decision.