When and how should the EAT exercise its discretion to extend the time limit for submitting an appeal?

The effect of Shirley Ridley v HB Kirtley t/a Queen’s Court Business Centre & Ors [2024] EWCA Civ 875

The time limit to appeal a decision of the Employment Tribunal is usually 42 days from the date the written judgment is sent to parties (or date written reasons were sent if these were requested within the applicable timeframe).

Recent developments in EAT’s approach to time extensions

There have recently been developments on how extensions of time are considered by the EAT, with a move away from the usually stricter approach historically taken. The EAT tended to take a very robust approach to time limits, whereby an appeal that was partially lodged out of time, was treated as if the entirety of the appeal had been lodged out of time.

The case of United Arab Emirates v Abdelghafar [1995] ICR 65 set out three questions to help determine whether an extension of time to appeal should be allowed:

• what is the explanation for the default?
• does that amount to a good excuse for the default?
• are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?

Whilst the Ridley case agreed that the above principles still applied, it emphasised that broad discretion should be used and matters should be looked at on a case by case basis– all relevant factors should be taken into account. The Abdelghafar principles were therefore intended to be a guide rather than determinative of the outcome.

Factors influencing EAT’s discretion in granting extensions

Factors that might be relevant to the EAT discretion include (but are not limited to):

• what document(s) is missing
• how much of the document(s) is missing
• how important the document is to the appeal
• whether the Appellant has complied with the time limit at all, and
• whether there appears to have been a mistake

Ridley noted that there was a significant difference between an Appellant who lodges a notice of appeal and nearly all the documents required by rule 3(1) of the EAT Rules inside the time limit and an Appellant who lodges nothing until after the time limit has passed. Where a document or part of a document was missing, this is likely to be a mistake which may prompt the EAT to utilise its discretion. The reason for the mistake must be understood.

In Ridley, the Appellants had submitted the Notices of Appeal on time, but with (parts of) the documents missing, so their extension applications were refused. The Court of Appeal found that whilst the first Appellant had not fully met the requirements of rule 3(1), they had substantially complied with them. Following the Court of Appeal Judgment, the Appeals were remitted to the EAT to reconsider the applications for extensions of time given the Court of Appeal’s position.

The EAT Amendment Rules came into force on 30 September 2023. These make important changes to the requirements for submitting appeals, such as reducing the number of documents that must be submitted with the Appellant’s Notice of Appeal. They also provide for discretion to extend the time limit for submitting an appeal where the Appellant makes a minor error when submitting relevant documents and the error is rectified. In these circumstances, time can be extended by the EAT if it considers that it is just in all the circumstances (Rule 37(5)).

The appeal deadlines in Ridley were before 30 September 2023 and therefore whilst of no assistance in Ridley, both change the exercise of discretion to extend the time limit for submitting an Appeal. Ridley suggesting that, even where the failure is not minor (and so the case does not fall under rule 37(5)), the EAT still has a broad discretion under rule 37(1) and must consider all relevant factors.

Whilst it still remains important for Appellants to properly constitute an appeal, these updates demonstrate that the EAT will likely be taking a slightly less robust approach to rejecting appeals that are not properly constituted in time. This means that we are likely to see an increase in the number of appeals accepted by the EAT.

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Clara Gogarty is a solicitor in our employment law team. If you have any questions or concerns related to the points raised in this article, please get in touch.