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17 July 2017

61: Employment Appeal Tribunal refuses to exercise discretion to extend time for appeal which was lodged one hour late

In J v K and another, the Employment Appeal Tribunal has refused to exercise its discretion to extend the 42 day time limit for lodging an appeal where the Notice of Appeal was filed one hour late.

The appellant’s claims of victimisation and discrimination had previously been struck out by the Employment Tribunal. He was seeking to appeal a £20,000 award for costs which had been made against him.

The deadline for filing the Notice of Appeal at the Employment Appeal Tribunal (EAT) was 4pm on 30 September 2016. The appellant had started sending the Notice of Appeal and accompanying documents sometime before 4pm but the transmission was not completed until 5pm because of the size of the attachments. The EAT had to decide whether to accept the appeal given that it had been presented one hour late.

The EAT refused to exercise its discretion to extend the time limit. It rejected the appellant’s arguments that his failure to submit his appeal on time had been due to depression and anxiety, caused by his HIV status, which had resulted in him being in a ‘blind panic’. He had failed to present appropriate medical evidence to support his argument that his disability had impacted on his decision-making. The EAT was also unimpressed with his assertion that he had been confused as to whether the deadline was 4pm or midnight, despite having read a Practice Direction which sets out clearly the applicable deadline. Although the EAT can consider the merits of an appeal in deciding whether to exercise its discretion to extend the time limit, in this case there was nothing to suggest that the Employment Tribunal making the original decision was wrong. The EAT also failed to be swayed by the appellant’s claim that he could lose his home if the judgment was not successfully appealed.

This case shows that although the EAT has discretion to extend time for presenting appeals, this will only be exercised very rarely. As the EAT website makes clear, the complete document must be lodged by 4pm. Leaving insufficient time to submit attachments to an appeal will not be a good reason for any delay beyond this deadline.

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