Margaret Gallacher v T&C Bars Limited & Anor

An appeal from an Employment Appeal Tribunal Registrar’s refusal to extend time requires the Judge to exercise the extension discretion afresh. An appellant must provide a full, honest and good explanation covering the whole period of default. Extensions are exceptional because finality and compliance with appeal time limits are fundamental.

Ignorance of the time limit, lack of representation, or failure to assemble documents will not ordinarily justify an extension. The merits of the proposed underlying appeal are rarely material. A lengthy delay without a good explanation will not be cured by an assertion that documents were unavailable, particularly where the appellant knew of the decision, appeal route and time limit.

The appellant sought to challenge an Employment Tribunal judgment which had upheld claims against her for redundancy pay, notice pay and holiday pay after finding a relevant transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006.

The Tribunal’s judgment was sent on 1 February 2022. The appellant did not lodge material with the Employment Appeal Tribunal until 1 March 2023, and did not properly institute an appeal until 2 May 2023, 412 days after the time limit expired. The Registrar refused her application to extend time. She appealed that order, contending in particular that she lacked the ET1 and ET3 documents and had believed she was no longer a respondent.

The central issue was whether the EAT should exercise its discretion to extend time for the late appeal.

1. Appeal dismissed. The Judge determined the extension application afresh rather than reviewing whether the Registrar had erred. The 42-day appeal period was clear and generous, while rule 37 of the Employment Appeal Tribunal Rules 1993 permitted an extension only in an exceptional case.

2. Applying the established approach, the EAT had to identify the explanation for the default, decide whether it was good, and then determine whether exceptional circumstances justified an extension. The explanation had to cover the entire period of delay. Finality at the appellate stage made compliance with time limits fundamental. Unrepresented status, ignorance of a time limit, and failure to assemble papers did not ordinarily justify relief.

3. The appellant had no adequate explanation for the 412-day delay. She received the reasoned Tribunal judgment shortly after it was sent, knew of her appeal rights and the strict time limit, downloaded and completed a draft EAT1, and was repeatedly told that any challenge had to be made to the EAT. Her asserted lack of copies of the ET1 and ET3 was inconsistent with the material and correspondence she had received. In any event, it did not explain why she lodged nothing with the EAT for nearly a year, or why she initially gave no explanation for omitting the documents.

4. The merits of the proposed TUPE challenge were generally irrelevant to the extension question. Nothing in the appellant’s submissions made this an exceptional case. The application to extend time was refused and the appeal from the Registrar’s order was dismissed.

• Employment Appeal Tribunal: Appeal from the Registrar’s order dismissed. The EAT refused to extend time for an appeal against the Employment Tribunal judgment.

• Employment Tribunal, Glasgow: The Tribunal upheld claims against the appellant for redundancy pay, notice pay and holiday pay, having found a relevant transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006.