S Stephens v The Health and Safety Executive

An extension of time for an Employment Appeal Tribunal appeal is exceptional. The applicant must provide a full and honest explanation, show a good excuse for the default, and identify circumstances justifying the indulgence. Medical evidence must address both the existence of ill health and its functional effect on the ability to appeal. Litigants in person are subject to the same time limits as represented parties. The merits may be considered where it is plain that the proposed appeal is hopeless; there is no purpose in extending time for an appeal bound to fail. A binding COT3 settlement may also render proposed appeals academic.

The Claimant brought Employment Tribunal claims for disability, age and sex discrimination. Before the final hearing, the Tribunal refused applications to postpone and permitted a pregnant witness to give evidence by video link. The Claimant’s husband, acting as her representative, withdrew the claim after the parties reached an ACAS-conciliated COT3 settlement. The Tribunal dismissed the proceedings on withdrawal.

The Claimant presented four appeals against the dismissal and earlier case-management decisions. Each was out of time. The Registrar refused extensions, and the Claimant appealed those refusals, relying principally on ill health, caring responsibilities and her status as a litigant in person.

1. Disposition. The appeals against the Registrar’s orders were refused. Time was not extended for any of the four notices of appeal, and the appeals were dismissed.
2. Extension of time. Under rule 37(1) of the Employment Appeal Tribunal Rules 1993, read with the overriding objective, an extension is an indulgence exercised according to reason and justice. The EAT must consider the length and circumstances of the delay, the explanation offered, whether it provides a good excuse, and whether exceptional circumstances justify the extension. The absence of a good excuse is not necessarily fatal if another exceptional factor exists.
3. Ill health and disability. Following J v K [2019] IRLR 723, the applicant must first establish ill health at the material time, ordinarily by independent medical evidence, and then show that the condition explains or excuses the failure to appeal. A diagnosis, sick note or receipt of benefits does not itself establish functional inability to comply. The Claimant’s records did not show that her conditions prevented timely appeals. Her detailed correspondence with the Tribunal and her husband’s available assistance further weakened the explanation.
4. Litigants in person. The Claimant’s unrepresented status did not justify a different standard. The principle in Muschett v London Borough of Hounslow [2009] ICR 424 applied: litigants in person are expected to comply with EAT time limits.
5. Merits. Following Aziz v Bethnal Green City Challenge Co [2000] IRLR 111, the EAT may assess the merits on an extension application where it is plain that the proposed appeal has no prospect of success. This is not a mini-trial. Appeals 2 to 4 concerned case-management decisions subject to a wide margin of discretion, and their prospects were very weak. Appeal 1 did not identify an arguable error in accepting the clear withdrawal and dismissing the claim.
6. Settlement and academic appeals. The husband had ostensible authority to bind the Claimant to the COT3 settlement, applying Freeman v Sovereign Chicken Ltd [1991] ICR 853. The settlement and withdrawal were likely binding, so the proposed appeals were in any event likely academic.

• Employment Tribunal: refused postponement applications, permitted a witness to give evidence by CVP, and dismissed the proceedings following withdrawal.
• EAT Registrar: refused extensions of time for all four appeals by orders dated 20 February 2025.
• Employment Appeal Tribunal: reheard the applications, refused extensions of time, refused the appeals against the Registrar’s orders and dismissed the appeals.