Marina Saveka v General Mills UK Ltd

An extension of time for an appeal to the Employment Appeal Tribunal is exceptional. The applicant must provide a full, honest and acceptable explanation covering the whole delay. A short delay and absence of prejudice do not compensate for the absence of a good explanation.

Where mental ill-health is relied upon, the evidence must establish both the condition and that it impaired the ability to decide to appeal and to act on that decision. Evidence that the applicant effectively pursued other litigation steps may show that no such impairment existed. Derogation from open justice also requires cogent evidence capable of outweighing the public interest in reporting proceedings.

The claimant appealed against the Registrar’s refusal to extend time for an appeal from Employment Judge Anstis’s case-management orders. Those orders had refused restrictions on open justice under rule 50 and declined late applications for specific disclosure and written answers.

The claimant presented her notice of appeal after receiving written reasons. She relied on mental ill-health, caring responsibilities and homelessness as explanations for the delay. She also appealed later Registrar directions concerning the appeal bundle and sought anonymity for the EAT proceedings.

The central issues were whether the claimant had a sufficient explanation for the late appeal, whether the bundle directions were procedurally proper, and whether the evidence justified a restriction on open justice.

1. Appeal dismissed. The EAT refused an extension of time and therefore dismissed the appeal from the Registrar’s refusal. It also dismissed the challenges to the Registrar’s bundle directions and refused anonymity.

2. The governing approach to an extension was that stated in [1995] ICR 65. Compliance with appeal time limits is fundamental. Extensions are rare and exceptional. The decisive question is ordinarily whether a full, honest and acceptable explanation accounts for the entire period of delay. The short delay and lack of demonstrated prejudice did not outweigh the absence of such an explanation.

3. Applying the guidance in J v K, [2019] EWCA Civ 5, the medical material did not provide a sufficiently independent basis for finding that mental ill-health prevented the claimant from taking and implementing a decision to appeal. The practitioners’ views depended on allegations about the respondent’s conduct which the Employment Tribunal had rejected. In any event, the evidence did not show impairment of litigation capacity. The claimant’s substantial contemporaneous applications and documents showed that she could litigate effectively.

4. The asserted caring responsibilities and homelessness were insufficiently evidenced and did not explain the delay. The reasons, separately and cumulatively, were inadequate. Parts of the intended substantive appeal had also become academic; the remaining anonymity ground was very weak.

5. Under paragraph 8.7 of the Practice Direction of the Employment Appeal Tribunal 2023, open justice remained the starting point. Although Article 8 was engaged by discussion of medical evidence, there was no cogent evidence of an exceptional effect of publication on the claimant’s private life, health, or participation. Articles 2, 3 and 6 were not engaged. The balance therefore favoured ordinary publication and reporting.

6. The statements of case and additional Employment Tribunal material were proportionate and necessary for the extension application. Asking the respondent to prepare a hard-copy bundle, after the claimant indicated she could not do so, was a proper adjustment and gave no appearance of bias.

• Employment Appeal Tribunal: In [2024] EAT 186, the EAT reheard and dismissed the appeal from the Registrar’s refusal of an extension of time. It also upheld the Registrar’s bundle directions and refused anonymity.
• Employment Appeal Tribunal Registrar: On 23 January 2024, refused an extension of time to appeal the Employment Tribunal’s case-management orders. In October 2024, gave directions concerning the appeal bundle.
• Employment Tribunal: Employment Judge Anstis refused the claimant’s applications under rule 50 of the Employment Tribunal Rules and late case-management applications made at the hearing on 27 March 2023. Written reasons were sent on 5 June 2023.