A reminder of the strict time limits in the Employment Appeal Tribunal

The time limits in the Employment Tribunal and Appeal Tribunal are short compared to many other legal claims, and as such both employers and employees have run into difficulty with time limits whether that be for submission of a claim or defence or submission of an appeal against a Judgement.

In a recent case decided by the Employment Appeal Tribunal the strict time limits were once again subject to discussion.

The Law

In accordance with the Employment Appeal Tribunal Rules 1993 (“the Rules”) an appeal must be instituted within 42 days from the date on which the written reasons were sent to the parties.

Rule 37(1A) states that “Where an act is required to be done on or before a particular day it shall be done by 4pm on that day.”

Guidance on the .gov.uk website states:

Deadline for appealing

You must appeal within 42 days of the date that either:
● the decision was sent to you
● the reasons were sent to you (but only if the Employment Tribunal didn’t provide reasons at the hearing or you asked for the reasons within 14 days of the decision being sent to you)

Your appeal must arrive by 4pm on the final day.

You can ask for an appeal to be considered even if it’s late, but extensions are rarely given, and you must have a good reason.

The Facts

The employee in this case, a teacher, made a claim in the Employment Tribunal against his employer for discrimination and victimisation. The employee’s claims were struck out by the Employment Tribunal.

The employer made an application for costs against the employee and the Employment Tribunal awarded costs of £20,000 against the employee.

The employee appealed against the judgement and his Notice of Appeal was stamped as received by the Appeal Tribunal on Monday 3rd October 2016. The time limit expired at 4pm on Friday 30th September 2016.  

The employee had in fact started to send his documents and Notice of Appeal by email some time before 4pm on the 30th September 2016. Unfortunately for the employee his attachment to the email was too large to be received by the Appeal Tribunal email system. When he realised this the employee started to split the file into several emails.

By the time all of the emails and attachments were received in the Appeal Tribunal inbox it was around 5pm and the office had closed. This led to the Appeal being noted as received and accepted on the next working day which was Monday 3rd October 2016.

The employee’s appeal was therefore rejected as out of time. The employee appealed against the registrars decision not to allow his appeal to continue, on the basis that his appeal was in fact just one hour late.     

During the Hearing, when asked by His Honour Judge Hand (HHJ Hand) why he had not submitted the documents by 4pm on the 30th the employee explained that he had various medical conditions, and produced documents and links from the internet as evidence of the effects of his medical conditions.

HHJ Hand however concluded that general evidence of the symptoms of his conditions was not sufficient medical evidence to assist in explaining why he was unable to submit his appeal within time.

The Decision

HHJ Hand rejected the employee’s appeal and in reaching his decision reviewed cases on this issue that had previously been decided.

He emphasised that the Employment Appeal Tribunal applies a stricter approach to time limits in an appeal and the adherence to the 42 day time limit is fundamental and compliance is essential.

HHJ Hand stated that ‘for whatever reason, and it may have been a wrong assignment of priorities, the Appellant left himself too little time to complete the task of submitting all the necessary papers electronically.’

Points to note

This case reiterates that time limits in the Appeal Tribunal will only be relaxed in rare and exceptional cases, and even though a person or organisation may not be legally represented they should be aware of the time limits and ignorance will not be accepted as a reason for failing to meet the time limit.

It seems that by the timing of his emails the employee did attempt to comply with the time limit but due to the difficulties with attachments and emails he was unable to do so.

HJ Hand was clearly satisfied that the employee in this case had the opportunity and ability to understand the rules for submitting his appeal.

Action to take

1. The time limits for submitting documents to both the Employment Tribunal and Appeal Tribunal are short and will be applied strictly;
2. Wherever possible do not leave it to the last day to submit documents in case there are IT issues;
3. Seek advice if you are unsure.

J v K and anor – Employment Appeal Tribunal

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