Will you get an extension of time if your Notice of Appeal goes missing in the post?
Not if you wait 5 weeks to chase acknowledgement of receipt, held the Court of Appeal in the case of Mr A Haydar v Pennine Acute NHS Trust.
Under Rule 3(3) of the Employment Appeal Tribunal Rules 1993 (EAT Rules), if you want to appeal against a Tribunal decision, you must file a Notice of Appeal within the following time limits:
- 42 days from the date of an order or decision of the tribunal appealed against; or
- If the appeal is against a judgment of the tribunal, 42 days from the date on which the written reasons were sent to the parties, where
(a) written reasons were requested orally at the hearing; or
(b) written reasons were requested within 14 days of the date when the written record of the judgment was sent to the parties; or
(c) reasons for the judgment were reserved and given in writing by the tribunal.
- In cases where neither (a), (b) or (c) above apply, the time limit is 42 days from the date when the written record of the judgment was sent to the parties
If you miss the deadline, you can apply for an extension of time to submit your appeal to the EAT. The EAT will consider whether to exercise its discretion and allow an extension depending on whether there is a good excuse for the delay.
Mr Haydar made a claim against his employer, Pennine Acute NHS Trust, and received the judgment from the Employment Tribunal on 14 April 2014, upholding his unfair dismissal claim but dismissing his discrimination claims. The deadline for appealing against the judgment was 27 May 2014. Mr Haydar said that two weeks before the deadline he put his Notice of Appeal in the post. The Employment Appeal Tribunal however had no record of receiving this and no acknowledgment was sent to Mr Haydar.
More than 5 weeks after the time for appealing expired, Mr Haydar rang the Appeal Tribunal who said they had not received his notice. He then sent another Notice which was treated as being out of time. Mr Haydar applied for an extension of time which was refused by the Registrar and also refused on appeal by the Appeal Tribunal. Mr Haydar then appealed to the Court of Appeal
The Court of Appeal upheld the Employment Appeal Tribunal’s decision to refuse Mr Haydar an extension of time to lodge his appeal. The Court held that Mr Haydar had received a letter from the Appeal Tribunal telling him to read the guidance set out in the judgement booklet. The booklet advised that appellants must contact the Appeal Tribunal if they have not received an acknowledgement receipt of the appeal package within seven days. Mr Haydar did not read the booklet and did not check what had happened with this appeal until 5 weeks after the deadline had expired. The Court therefore concluded that the Appeal Tribunal had not erred in finding there was not a good excuse for Mr Haydar’s delay.
Points to note
This case illustrates how an extension of the time limit for appealing to the Employment Appeal Tribunal is normally only granted in exceptional circumstances. The fact that Mr Haydar had not read the judgement booklet telling him he had to chase acknowledgement of receipt of his appeal within 7 days was not a good enough excuse for lodging his appeal out of time.
Action to take
1. To avoid being out of time, ensure that any appeal is submitted well within the deadline.
2. Always read any information from the Tribunal carefully and any guidance booklets.
3. Appeals are only permitted on certain grounds. If you do not know whether you can appeal against a judgement or decision of the Tribunal, please contact us for advice.
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