H Lau v Dragon Cat Ltd t/a Dragon Cat Cafe & Ors

The strict approach to extending time for instituting an appeal to the Employment Appeal Tribunal does not govern a late respondent’s answer. A late answer concerns a procedural step within an existing appeal and is subject to the Tribunal’s general discretion, exercised consistently with the overriding objective.

The Tribunal should consider the length and explanation of delay, prejudice, and the interests of justice. An extension is not routine. However, the need to determine alleged errors of law carefully, ordinarily with full argument, may favour permitting a respondent to participate. The Tribunal must still assess the merits of an appeal even where it is undefended or the parties consent to its allowance.

The claimant appealed against an Employment Tribunal liability judgment. A Deputy Judge permitted five grounds to proceed to a full hearing and ordered the respondents to lodge an answer within 28 days.

Because of an administrative error, the order was initially served only on the first respondent’s insolvency practitioners. The second and third respondents later filed an answer 16 days late and sought an extension. The Registrar granted the extension.

The claimant appealed from that order. The central issue was whether an application to extend time for a respondent’s answer should attract the same strict approach as an application to extend time for instituting an appeal.

1. Appeal refused. The extension of time for the second and third respondents to file their answer was granted.

2. The strict principles governing late institution of an appeal do not apply to a late answer. The statutory scheme distinguishes a failure to commence an appeal from a failure to comply with an order fixing the time for an answer. Once a late answer has been lodged, the relevant default is non-compliance with an order, for which the EAT has discretionary powers under Rule 26 and an express power to extend time under Rule 37(1) of the Employment Appeal Tribunal Rules 1993.

3. The court followed Slingsby v Griffith Smith Solicitors, considering its reasoning manifestly correct. The proper approach is a general discretionary one, informed by the overriding objective. Relevant matters include the length of delay and the existence and nature of prejudice. Time should not be extended lightly or routinely.

4. There is a material policy distinction between an appeal and an answer. An appeal initiates further proceedings after a merits decision and engages finality. An answer enables full argument within proceedings already instituted. Since an appeal can succeed only on an error of law, the EAT should not allow it merely because it is undefended or because the parties agree that it should be allowed. Its status as a superior court of record and the binding effect of its judgments make careful consideration of legal questions important.

5. Here, the initial failure to serve the order on the second and third respondents, the short delay, the absence of prejudice to the claimant, and the value of proper argument on the appeal outweighed the claimant’s objections. The interests of justice therefore favoured the extension.

• Employment Appeal Tribunal: The claimant appealed from the Registrar’s order granting the second and third respondents an extension of time to lodge an answer. The appeal was determined afresh and refused.
• Employment Tribunal: The claimant had appealed against a liability judgment sent to the parties on 6 March 2025. No citation was stated.