QRS v London Borough of Tower Hamlets & Ors

An application to extend time for a request for a rule 3(10) hearing requires a judicial and fact-sensitive assessment. The applicant must provide an explanation which amounts to a good excuse, and the tribunal must consider whether the circumstances justify an extension. Mental ill health must be supported by evidence and must explain the particular default. An applicant who can undertake substantial litigation tasks may not establish that ill health prevented basic monitoring of expected tribunal communications.

An extension may also be refused where the underlying appeal has no realistic prospect of success or has become academic. The minor-error provision for instituting an appeal does not apply to a late request for a rule 3(10) hearing under the Employment Appeal Tribunal Rules 1993.

The appellant had brought employment tribunal claims, including Equality Act, unfair-dismissal and protected-disclosure complaints. In a fourth EAT appeal, she challenged an employment judge’s refusal of a further application to strike out the respondents’ responses.

Following a rule 3(7) sift letter stating that the appeal was not arguable, the appellant sought a rule 3(10) hearing many weeks after the 28-day deadline. The Registrar refused an extension of time. The appellant appealed that order, relying on physical and mental ill health and asserting that she had not seen the relevant emails.

The EAT had also to consider whether the appeal was academic after the employment tribunal dismissed the substantive claims for the appellant’s non-attendance, without any properly instituted appeal from that dismissal.

1. Appeal dismissed. The EAT refused an extension of time for the appellant’s late request for a rule 3(10) hearing. The judge reheard the extension application and made a fresh decision, rather than reviewing the Registrar’s decision.

2. Under the principled and fact-sensitive extension-of-time approach in United Arab Emirates v Abdelghafar, the court considered the explanation for default, whether it was a good excuse, and whether the circumstances justified an extension. The guidance in J v K required evidence both of mental ill health and of a causal connection between that condition and the default.

3. The appellant had genuine chronic hypertension, TMJ pain and mental ill health. However, the evidence showed that during the relevant period she was able to prepare substantial emails, submissions, chronologies and bundles, and remained aware that a sift decision was awaited. She could have searched her inbox for an expected email from the EAT. Her ill health was therefore not shown materially to have caused her failure to identify, open and respond to the rule 3(7) letter. There was no good excuse for the default.

4. The appellant was responsible for checking her inbox sufficiently often to enable a timely response to an anticipated rule 3(7) notification. The minor-error rule considered in Melki v Bouygues E and S Contracting UK Ltd concerned compliance with requirements for instituting an appeal under rule 3(1). It did not apply to a late request under rule 3(10) of the Employment Appeal Tribunal Rules 1993.

5. The underlying appeal was also academic and had no realistic prospect of success. The substantive claims had been dismissed under rule 47 following the appellant’s non-attendance, and no appeal from that decision had been properly instituted. An application to amend this appeal could not sidestep the time limit for an appeal from the rule 47 decision. In any event, the original appeal challenged a discretionary refusal to strike out responses; there was no realistic basis on which the EAT could conclude that the responses properly could or should have been struck out.

The substantive appeal was accordingly at an end and would proceed no further.

• Employment Appeal Tribunal: The Registrar refused an extension of time for a late request for a rule 3(10) hearing. The present appeal from that order was dismissed.
• Employment Tribunal: Employment Judge Beyzade refused a further application to strike out the respondents’ responses. The substantive claims were later dismissed under rule 47 following the appellant’s non-attendance; no appeal from that decision was properly instituted.