The rules regarding deadlines in the Employment Tribunal and the Employment Appeal Tribunal are very strict and are strictly applied. It goes without saying that there are deadlines that have to be met, but what many people do not appreciate is how strictly these deadlines are applied and the consequences for failure to adhere to them.
A recent case called Greg O’Cathail v Transport for London was decided by the Court of Appeal and illustrates the point.
The deadline for filing an appeal against an Employment Tribunal Judgement is 42 days from the date of the written reasons for the Tribunal Judgement.
In Mr O’Cathail’s case the deadline for his appeal was the 27th January 2010.
He sent his notice of appeal to the Employment Appeal Tribunal on the 26th January 2010, within his time limit, but did not include a copy of the Employment Tribunal’s Judgement or reasons for his appeal.
He did however send these on the day after the deadline, 28th January 2010, but his appeal was rejected.
What do I need to send to the Employment Appeal Tribunal to appeal?
In order to appeal against an Employment Tribunal Judgement within 42 days you must send:
1) Notice of Appeal setting out your grounds for appeal on the prescribed form.
2) A copy of the ET1 Claim Form and ET3 response from your original case
3) A copy of the Employment Tribunal Judgement and written reasons or order.
If you fail to send all of these documents within 42 days your appeal will be rejected.
If it is rejected because you are outside of the deadline then you must apply to the Employment Appeal Tribunal to extend the time limit.
Your application is first considered by the Registrar and if the Registrar refuses to extend time then it is passed to a Judge to make the final decision.
The Registrar/Judge will only grant an extension if the circumstances are sufficiently rare and exceptional to justify it. Therein lays the problem for most people who are trying to get an extension of time!
In considering if time will be extended there are 3 key questions the Employment Appeal Tribunal will consider:
1) What is the exceptional reason for the delay?
2) Is this a good excuse?
3) Do the circumstances warrant taking an exceptional step by extending time?
You will see from these questions that there is a high threshold to overcome, and simply saying that you did not know the deadline or didn’t have the time will not be sufficient to count as ‘exceptional’ circumstances.
What if I am unwell or have a disability?
It is possible that this would amount to an exceptional reason, but as can be seen in Mr O’Cathail’s case it is not necessarily going to be in every case.
Mr O’Cathail claimed that the reason for his delay in filing the papers on time was because he suffered from depression, anxiety and panic attacks.
The Employment Appeal Tribunal accepted that Mr O’Cathail had a disability, and that undoubtedly this was the reason for his delay in starting the preparation of his appeal, but they did not accept that his disability was the reason for the late filing. Instead they said that the late filing was because he had left it until the last moment to file the papers.
At the Court of Appeal they agreed that the Employment Appeal Tribunal had correctly considered Mr O’Cathail’s disability in their decision making, and that they had not made an error in dismissing his application. They had correctly considered the reason why he was late and had decided that it was not as a result of his disability.
The Employment Appeal Tribunal’s reasoning may sound a little odd, how can they say the delay was because of disability, but the lateness was caused by the fact that he left it too late to deal with it? Unfortunately a full analysis of this is beyond the scope of this post, it is merely provided as an illustration that you should be mindful of deadlines and ensure you don’t find yourself in the situation where you are arguing about the particulars of why you were late in filing!
What are the time limits for filing an appeal in the Employment Appeal Tribunal?
The deadline is 42 days from the date of the written reasons for the Employment Tribunal’s Judgement.
Note also that the deadline expires at 4pm on the 42nd day.
Who deals with Employment claims and appeals?
The majority of Employment claims are dealt with by the Employment Tribunal in the first instance.
Once the Tribunal has made a decision it is called a Judgement.
In limited circumstances you can appeal against the Tribunal’s Judgement if you disagree with their findings. Information about the grounds upon which you can appeal will follow in a later blog posting.
Your appeal against the Tribunal decision will be dealt with and decided by the Employment Appeal Tribunal.
If you disagree with the decision of the Employment Appeal Tribunal you can, again in limited circumstances, appeal against the decision and your appeal will be dealt with by the Court of Appeal.
Further appeals and remedies are beyond the scope of this blog but if you have a specific question about the appeal process available to you after the Court of Appeal please send us an email to [email protected] or leave a comment and one of our supportive community will respond.