A Bindi v Metropolitan Thames Valley

The EAT’s discretion to extend time for an appeal is strict but not inflexible. It must weigh the explanation for default, whether it is an acceptable excuse, and whether the circumstances justify an extension. Leaving an appeal until the final moment is relevant but is not an automatic bar. An appeal that has become wholly academic may be refused an extension where success could make no difference to the final outcome and no wider point justifies a hearing. That can be decisive even where the delay is only minutes and the appellant acted in good faith.

Mr Bindi brought claims for unfair dismissal, wrongful dismissal and race discrimination against Metropolitan Thames Valley. The Employment Tribunal permitted one of the respondent’s former employees to give evidence remotely at the proposed merits hearing. Mr Bindi emailed an appeal against that case-management decision on the last day, but the EAT received it after 4 pm. The Registrar refused an extension of time, and Mr Bindi appealed that order.

By the EAT hearing, the original merits hearing had been postponed, a renewed application for remote evidence had been granted, and Mr Bindi’s claims had been dismissed after he failed to attend. Challenges to the later relevant orders and the refusal to reconsider had ended unsuccessfully. The issue was whether time should be extended for a two-minute-late appeal whose underlying challenge could no longer affect the completed tribunal proceedings.

1. Extension refused. The underlying appeal was wholly academic, and no extension of time was granted.
2. The judge made a fresh decision on the extension application, rather than reviewing the Registrar’s decision on the material then available: Nicol v Blackfriars Settlement [2018] EWCA Civ 2285. An email appeal is instituted when it reaches the EAT’s server, not when the appellant presses send. The notice was therefore late.
3. The discretion under rule 37(1) is exercised on a principled and fair assessment of all relevant circumstances. The judge applied the guidance in United Arab Emirates v Abdelghafar [1995] ICR 65, as reviewed in Ridley v Kirtley [2024] EWCA Civ 884 and restated in Mulumba v Partners Group (UK) Limited [2026] EWCA Civ 30. The questions are the explanation for default, whether it is a good excuse, and whether circumstances justify an extension. A good excuse is ordinarily expected, but is not an invariable precondition.
4. Mr Bindi accepted that he had left the appeal until the last minute without a good excuse. The delay was very short, and the judge accepted his honest account and assumed he had tried to send the email before 4 pm. Those matters weighed in his favour. Leaving an appeal until the final moment remained an important discretionary factor: Jurkowska v Hlmad Limited [2008] ICR 841; J v K [2019] EWCA Civ 5. The judge distinguished the technical server-capacity problem in J v K.
5. The academicity of the proposed appeal decisively tipped the balance. The original remote-evidence order had been superseded by a fresh order; the claims were later dismissed under rule 47 for non-attendance; and the challenges to the relevant later decisions had failed. Success on the original appeal could not alter that outcome. Applying Daramy v The London Borough of Tower Hamlets [2025] EWCA Civ 1789, the judge concluded that there was no useful purpose in extending time. The application for an extension was refused.

1. Employment Appeal Tribunal (Auerbach HHJ). On appeal from the Registrar’s order, the judge made a fresh decision on the extension application and refused it: [2026] EAT 136 .
2. EAT Registrar. In May 2024, the Registrar refused to extend time for an appeal against Employment Judge Lewis’s case-management order. No citation for the Registrar’s order is stated.
3. Employment Tribunal. On 9 June 2023, Employment Judge Lewis permitted a respondent’s witness to give evidence by video. The tribunal later dismissed Mr Bindi’s claims after his non-attendance. No citation for the tribunal decisions is stated.