12 May 2017

In a recent decision, the EAT has refused to exercise its discretion to extend the 42 day time limit for lodging an appeal in circumstances where the appeal was lodged one hour late.

In J v K and another UKEAT 0661/16, the appellant (who was a teacher), had brought proceedings against the Respondents complaining of discrimination and victimisation contrary to the provisions of the Equality Act 2010. On 15 March 2015, his claim was struck out. Subsequently, the Second Respondent applied for costs. The application was considered by an Employment Tribunal and costs of £20,000 were ordered to be paid by the Appellant to the Respondent.

The deadline for filing the Notice of Appeal at the EAT was 4pm on 30 September 2016. The Appellant asserts that he had started sending the Notice of Appeal and accompanying documents sometime before 4pm on the afternoon of 30 September 2016 but that the transmission was not completed until 5pm. The issue before the EAT in the present case was whether the appeal could be accepted since it had been presented one hour out of time. 

Before the EAT, the appellant tried to establish that his depression and anxiety (caused by his HIV status) had resulted in his “blind panic” which led to his failure to submit the appeal on time (i.e. 4pm). He asserted that he had been confused as to whether the deadline was 4pm or midnight (despite having reviewed a Practice Direction which sets out clearly the applicable deadline). He also failed to lead appropriate evidence to support his argument that his disability had impacted his decision making, relying instead on generalised material from the internet (rather than specific medical evidence). The EAT also held that the appellant had left himself insufficient time to submit all of the necessary documents electronically.

The EAT has discretion to extend time under rule 37(1) of the Employment Appeal Tribunal Rules 1993 but this discretion will only be exercised in rare cases. In the present case, the EAT was not minded to exercise its discretion in circumstances whereby the appellant was seeking to appeal a £20,000 costs award and contending that he could lose his home if the judgment was not successfully appealed. The EAT held that while the merits of the original judgment making the costs order may be a factor to consider, there was nothing in the present case to suggest that the tribunal had exercised its discretion incorrectly.

Contact: Lesley Grant Associata ljg@bto.co.uk T. 0141 221 8012