Employment Appeal Tribunal gives comprehensive guidance on the correct approach to applications to extend time

A litigant wishing to appeal against a decision of the Employment Tribunal must issue a Notice of Appeal within 42 days of either the Tribunal’s order or the date on which the written reasons were sent to the parties.

The EAT Rules were amended with effect from 30 September 2023 to include rule 37(5). The new rule created an extra route by which the EAT may extend time for issuing an appeal where there has been a ‘minor error’ in complying with the requirement to submit relevant documents. That rule has been the subject of recent guidance in Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36.

Moreover, the Court of Appeal has recently given guidance in Ridley v HB Kitley and related appeals [2024] EWCA Civ 884 on the principles which apply to an application to extend time within rule 3(1) (following the leading case of Abdelghafar), in cases where the appellant’s error was not ‘minor’.

In AB v University of East London and related appeals [2024] EAT 157 (‘AB’), Mrs Justice Eady, President of the EAT heard 5 conjoined applications to extend time. In each case a claimant before the ET sought to file their appeal to the EAT within the 42-day time limit but failed to supply all the documents then required under the EAT rules. In each case, the claimant applied for an extension of tome after rectifying the relevant omissions. Eady J heard all of the appeals together and gave all of the parties the opportunity to submit representations specifically addressing the Court of Appeal’s decision in Ridley.

In her decision, Eady J drew together all of the recent case law in order to provide guidance on the correct approach to determining an application to extend time.

At paragraph 27 of AB, Eady J sets out 7 separate principles which together describe the correct approach to considering a proposed appeal to the EAT where there has been a failure to lodge all of the documents in time. Her guidance draws together all of the principles established by recent case law and reflects the recent changes to the EAT’s rules and practice directions.

The five conjoined appeals in AB were heard together and decided by the president of the EAT with the specific intention of producing a decision that would provide useful guidance to judges and practitioners on an area of employment law which has evolved rapidly in a short period of time. All practitioners who conduct cases in the ET and EAT would be well advised to read the decision carefully.

Harry Sheehan acted for the successful Respondent in Samuels v Search Tansley and Company Limited, one of the five conjoined appeals in AB.

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Employment Appeal Tribunal gives comprehensive guidance on the correct approach to applications to extend time

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