Governing Body of Tywyn Primary School v Aplin

An extension of time granted by consent to file a respondent’s answer does not, without clear wording or agreement, extend time for a cross-appeal merely because both may appear in the same form. The order must be construed in its procedural context.

The strict approach governing extensions for instituting an appeal does not govern cross-appeals. A cross-appeal is ordinarily reactive to the opposing party’s appeal. The general discretion to extend time should therefore be exercised under the Employment Appeal Tribunal Rules 1993, taking account of a reasonable excuse, prejudice and the circumstances of the application.

The Employment Tribunal upheld Mr Aplin’s claims for unfair dismissal and sexual-orientation discrimination. His former employer appealed. The EAT ordered him to file a respondent’s answer within 14 days.

Mr Aplin obtained, by consent, an extension to file an answer. He filed an answer containing a cross-appeal within that extended period. The Registrar held that the extension covered only resistance to the employer’s appeal, that the cross-appeal was 13 days late, and refused a further extension.

Mr Aplin appealed the Registrar’s order. The issues were whether the consent order also extended time for the cross-appeal and, if not, whether the Registrar applied the correct approach to an extension of time for a cross-appeal.

1. Appeal allowed. The Registrar’s refusal to extend time for the cross-appeal was set aside. The EAT substituted a decision extending time, with the result that the cross-appeal lodged on 3 January 2018 could proceed.

2. The appeal on construction of the consent order failed. Although a Form 3 answer may contain both resistance to an appeal and a cross-appeal, they are procedurally distinct elements. The order of 15 December 2017 had to be construed in the context of the application and the school’s consent. Neither clearly sought nor agreed an extension for a cross-appeal. It therefore extended time only for the answer resisting the appeal.

3. The Registrar nevertheless erred by applying the strict principles for extending time to institute an appeal to a cross-appeal. Rule 3 prescribes a fixed 42-day period for an appeal, whereas Rule 6 leaves the time for an answer to be appointed by the EAT. Paragraph 5.7 of the Practice Direction directs attention to the appeal authorities only when extending time for appealing.

4. Slingsby v Griffith Smith Solicitors was not followed on this point. A cross-appeal challenges an Employment Tribunal judgment, but its practical and policy character differs from an originating appeal. As explained in Basildon & Thurrock NHS Foundation Trust v Weerasinghe, a party may accept an imperfect outcome unless the opposing party appeals. A cross-appeal is thus reactive and arises only after an appeal has been brought.

5. The general discretion under Rule 37 applied. Mr Aplin’s belief that the extension covered all parts of his answer was reasonable and understandable, even though legally incorrect on close construction. The school identified no particular prejudice from the cross-appeal being lodged with the answer, whereas Mr Aplin could be prejudiced if unable to advance it. Exercising the power under section 35(1) of the Employment Tribunals Act 1996, the EAT granted the extension itself.

• Employment Appeal Tribunal: allowed Mr Aplin’s appeal from the Registrar’s order of 15 February 2018, set aside the refusal of an extension, and granted the extension for the cross-appeal.
• Employment Appeal Tribunal Registrar: refused Mr Aplin’s application of 19 January 2018 to extend time for a cross-appeal.
• Employment Tribunal: by a judgment with reasons sent on 28 September 2017, upheld the claims for unfair dismissal and sexual-orientation discrimination. The school then appealed those findings.