M Shah v Home Office

An Employment Appeal Tribunal appeal is not properly instituted under rule 3(1) of the Employment Appeal Tribunal Rules 1993 unless the required documents are supplied. The former requirement in rule 3(1)(b) extended to every claim and response before the employment tribunal, including claims not pursued on appeal.

An error about procedural requirements will ordinarily provide no good excuse for missing the time limit. However, a good excuse is not an absolute precondition to an extension. An extension may be justified where the rules and official explanatory material were internally inconsistent or confusing, the omission was technical, and the surrounding circumstances made earlier filing incapable of curing the defect.

The appellant sought to challenge an Employment Tribunal judgment which determined eight claims. His proposed appeal concerned only the first claim, alleging disability discrimination in connection with a disciplinary investigation.

His notice of appeal included the ET1 and ET3 for that claim, but not the ET1s and ET3s for the other claims heard by the tribunal. The Registrar held that the appeal was not properly instituted and refused an extension of time. The additional documents were supplied 154 days after the appeal time limit had expired.

The appeal to the Employment Appeal Tribunal was a re-hearing of the application for an extension. The central issues were whether the original notice had been properly constituted and, if not, whether time should be extended.

1. Appeal allowed. The Registrar’s order was set aside and time for appealing was extended to 25 July 2022.

2. At the material time, rule 3(1)(b) of the Employment Appeal Tribunal Rules 1993 required an appellant to provide copies of any claim and response in the Employment Tribunal proceedings. That requirement was cumulative upon rule 3(1)(a). It therefore extended to claims and responses before the tribunal even though the appeal did not challenge their disposition.

3. The wording of Form 1, the Practice Direction and leaflet T440 supported the competing view that only the claim or claims under appeal, and their responses, were required. The rules were consequently internally inconsistent on one reading and confusing in any event. The appellant’s first two claims had also been formally consolidated. Sud v London Borough of Ealing [2011] EWCA Civ 995 did not establish that the first claim could proceed independently, because consolidation combined those claims into one claim.

4. The appellant had no good excuse for non-compliance. His representative’s error as to the documents required, and the decision to begin lodging the appeal only on the final day, would ordinarily not justify an extension. The strict extension-of-time approach in United Arab Emirates v Abdelghafar [1995] ICR 65 remained applicable.

5. Nevertheless, a good excuse was not an absolute condition of an extension. The exceptional features justified one: confusing official materials, a minor and technical omission, the limited relevance of the omitted documents, the later removal of the document requirement, and a Registry backlog which meant earlier filing would not have enabled correction before expiry. These circumstances justified the exceptional exercise of discretion.

• Employment Appeal Tribunal: Allowed the appeal under rule 21 from the Registrar’s refusal of an extension of time and extended time to 25 July 2022.
• Employment Appeal Tribunal Registrar: On 16 March 2023 refused an extension of time after the notice of appeal was treated as improperly instituted.
• Employment Tribunal: Determined eight claims; the proposed appeal concerned the first claim only.