Weightmans has successfully defended a high profile case in the Court of Appeal this month on the crucial issue of time limits for appeals to the Employment Appeal Tribunal.
In Haydar v Pennine Acute Hospitals NHS Trust the Court of Appeal refused to extend time for the Claimant to submit his appeal, holding that he was at fault for failing to read “The Judgment”, a booklet referred to in the standard letter sending a Judgment to the parties, and failing to chase up a response from the EAT when receipt of his appeal papers was not acknowledged.
The Claimant brought claims to the Employment Tribunal, heard in early 2014. He was unsuccessful in all but one of his claims, and then only in part on that one successful claim. When the Employment Tribunal sent out the Judgment it was accompanied by an instruction booklet in which guidance relating to the appeal process is given. Particular reference is made to making a check with the EAT if no acknowledgment of the appeal is received within seven days.
The Claimant alleged that he sent an appeal to the EAT well within the 42 day time limit. Having heard nothing from the EAT for six weeks he contacted it to discover the appeal papers had not been received. He then sent a new Notice of Appeal, which was now clearly out of time (by over four weeks). At the same time, as he was required to do, he applied for an extension of time. This was initially refused by an EAT Registrar. The Claimant applied for and was granted a personal hearing before a Judge. This application was heard and was again refused.
The Claimant then lodged an application for permission to appeal to the Court of Appeal. He was granted a full hearing in the Court of Appeal, which was heard in early March this year.
The Claimant argued that he should be granted an extension of time to present his appeal on the grounds that:
- The EAT Judge had reached a perverse decision in refusing the discretion to grant an extension of time to validate the notice of appeal;
- The Civil Procedure Rules (CPR), which govern procedure in other civil courts, should apply in the EAT, under which the test for granting an extension is less severe than the test applied by the EAT ;
- His case was factually very similar to an earlier claim (Peters v Sat Katar Co Ltd) in which an extension of time was granted in the Court of Appeal; and
- His failure to read the booklet “The Judgment” referred to in the Employment Tribunal letter sending out the written judgment was not blameworthy conduct, that no guidance to the same effect is given in the EAT Practice Direction, and he was not required by EAT guidance to read the booklet.
The EAT effectively found that the Claimant was at fault for not reading the booklet. The Court of Appeal agreed and dismissed his appeal. “The Judgment” booklet states that an appellant should contact the EAT to check they have received their appeal papers seven days after sending them, if no acknowledgement has been received by that time. The Court of Appeal found that the Claimant had failed to check with the EAT soon enough and that his delay was serious and significant.
The Court of Appeal also found that the Claimant’s case could not be compared to Peters, as that case was decided before the booklet was routinely provided by the Tribunal when sending out written Judgments, and in Peters the claimant was not aware that she should expect to receive acknowledgment of her appeal from the EAT. It was in fact the Peters case which led to the introduction of the booklet.
The Court found that even if the CPR should apply to the EAT jurisdiction it would have made no difference in this case. Interestingly, the Court of Appeal is set to rule shortly on another pending claim on exactly this issue.
What does this mean for me?
This case is a stark reminder to claimants and respondents alike of the importance of observing Employment Tribunal time limits. This appeal was submitted several weeks out of time. However, even a slight delay can be fatal to a claim or to an appeal.
It is reassuring for employers that the EAT and Court of Appeal took a firm line with this employee. Often Tribunals and courts will give the benefit of the doubt to unrepresented claimants, recognising that procedural rules can be difficult to navigate. However, in this case, the Court of Appeal held that the Claimant had no excuse for failing to familiarise himself with the clear guidance provided. It was also significant that he was a serial litigant with extensive prior experience of the Employment Tribunal and EAT system.
Since the reinstatement of the Employment Tribunal fee regime last summer, the volume of claims received has risen sharply. The latest statistics show that, in the period October to December 2017, the number of claims received increased by 90% against the same period the previous year. ACAS has reported that the number of early conciliations is up by nearly a third in the last few months. You may have experienced an upturn in your own organisation. Against this backdrop, it is arguably more important than ever for employers to robustly contest procedural issues such as late submission of claims.
The Claimant in this case has sought permission to appeal to the Supreme Court (the highest court in the UK) so this may not be the last word on this important procedural issue.
Mark Hatfield (firstname.lastname@example.org) is a Partner in the Employment, Pensions and Immigration Team and is based in Liverpool. If you have any questions about this case please do not hesitate to contact Mark or your usual Weightmans contact.