D Harding v St George's University Hospital NHS Foundation Trust

The Employment Appeal Tribunal's power to extend time under rule 37 is a broad discretion. It must be exercised on the particular facts, without treating previous decisions as rigid sub-rules.

Where mental ill health is relied upon, the tribunal should determine whether it existed at the relevant time and whether it substantially explains the default. An applicant's ability to perform some tasks does not necessarily show an ability to institute an appeal. If mental ill health substantially caused the delay, an extension will usually be just, subject to the length of delay and the respondent's interests.

A promptly corrected omission of a required document may be a minor error under rule 37(5) of the Employment Appeal Tribunal Rules 1993, particularly where reasons were supplied and no prejudice arose.

The claimant brought two Employment Tribunal claims against her former employer. Her second claim was struck out. Her first claim, alleging discrimination and victimisation, was dismissed following a hearing in September 2023; the tribunal also awarded the respondent £20,000 costs.

The claimant's appeal against the strike-out was properly instituted five days late because she initially omitted the strike-out judgment. The Registrar refused an extension. The claimant also lodged a timely appeal against the liability judgment in the first claim, but did not appeal the costs judgment until 461 days after the deadline. The Registrar also refused an extension for that appeal.

She appealed both Registrar's orders. The central issues were whether the document omission was a minor error, and whether her anxiety and depression or other circumstances justified extensions of time.

1. The first appeal from the Registrar's order was allowed. Rule 37(1) of the Employment Appeal Tribunal Rules 1993 confers a broad discretion. Although the EAT properly takes time limits seriously, its discretion must be exercised afresh on the facts and not through rigid sub-rules: Ridley v HB Kirtley, [2024] EWCA Civ 884.

2. The omission of the strike-out judgment was a minor error for rule 37(5). The claimant had supplied the reasons, rectified the oversight promptly when asked, and caused no prejudice to the respondent. The appeal was therefore treated as one day late rather than five days late.

3. The medical evidence established significant anxiety throughout the period for instituting that appeal. The claimant's return to work, her preparation of appeal grounds and her attempt to obtain advice did not displace the conclusion that anxiety substantially contributed to her errors. Ability to function in one area does not necessarily establish an ability to make and implement an appeal decision. Applying the framework in J v K, [2019] EWCA Civ 5, the short delay, the claimant's efforts to comply, her panic when electronic filing failed, and the absence of prejudice made an extension just. The first appeal was to be treated as properly instituted in time and sent to the sift.

4. The second appeal from the Registrar's order was dismissed. The claimant had lodged a lengthy liability appeal in time. Her asserted misunderstanding about receiving one covering letter did not explain the absence of any grounds challenging the separate costs judgment. She had not considered a freestanding costs appeal until the later Rule 3(10) judgment. There was no good reason for the 461-day delay or other circumstance justifying an extension.

5. The EAT noted only that a successful liability appeal might potentially provide a basis to challenge the costs judgment. It gave no advice on the means or prospects of any such challenge.

• Employment Appeal Tribunal: The claimant's appeal from the Registrar's refusal to extend time for the strike-out appeal was allowed. Her appeal from the Registrar's refusal to extend time for the costs appeal was dismissed.
• EAT Registrar: On 22 October 2024, the Registrar refused an extension to institute the strike-out appeal properly. On 17 June 2025, the Registrar refused an extension to appeal the costs judgment.
• Employment Tribunal: The second claim was struck out on 4 April 2023. The first claim was dismissed on liability on 19 September 2023 and the respondent was awarded £20,000 costs on 20 September 2023.