7th Nov 2023

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Alexandra Sidossis (instructed by direct access) for the Appellants


SUMMARY

PRACTICE AND PROCEDURE – time for appealing

The claimants sought to appeal from the reserved judgment and reasons of the employment tribunal, arising from a full merits hearing, dismissing their complaints. When presenting their notice of appeal they attached copies of the amended particulars of claim and the amended grounds of resistance, but not copies of the forms ET1 and ET3. The matter predated the amendments to the EAT’s Rules which came into force on 30 September 2023. Accordingly the claimants accepted that the appeal had not been properly instituted until copies of those documents were subsequently sent by them to the EAT, which was more than 42 days after the written judgment and reasons was promulgated. They also accepted that they had not advanced an explanation for the initial omission such as would warrant an extension of time. However, they contended that time for instituting their appeal did not begin to run until the date on which the employment tribunal promulgated its separate written record of decisions on case-management applications that had been adjudicated during the course of the full merits hearing. If so, the appeal was properly instituted in time. Alternatively, they contended that there were other circumstances which warranted an extension of time in this case. The EAT’s Registrar rejected both arguments. The claimants appealed from that decision to the EAT judge.

Held: time for instituting an appeal from the judgment ran from when the written judgment and accompanying reasons for it were promulgated, not the later date on which the written record of case-management decisions was promulgated. Accordingly, the appeal had been instituted out of time. This was not a case where there were exceptional circumstances such that time should be extended. In particular the fact that the grounds raised matters said to have affected the fairness of the hearing, did not constitute such circumstances. The appeal was therefore dismissed.

HIS HONOUR JUDGE AUERBACH:

Introduction

The claimants in the employment tribunal were both employed by the respondent from 8 October 2019 until they were each dismissed, respectively on 16 and 20 January 2020. Before the employment tribunal they both complained that they had been subjected to detriments because they had made protected disclosures, and that they had been unfairly dismissed for the reason or principal reason of having made protected disclosures.

There was a full merits hearing on 11 – 15 and 18 – 21 October 2021 at London Central, by CVP, before EJ Goodman, Ms D Keyms and Mr T Cook. The reserved judgment and reasons were sent to the parties on 8 November 2021. All of the complaints of both claimants were dismissed.

The notice of appeal against that decision, with certain accompanying documents, was received by the EAT on 17 December 2021. On 9 March 2022 the EAT’s administration wrote to the claimants indicating that the appeal had not been properly instituted because copies of the ET1 and ET3 forms had not been provided. These were thereafter sent to the EAT as attachments to an email sent on 18 March 2022. In the ensuing correspondence the claimants contended that their appeal had in fact been properly instituted in time, or, if not, that time should be extended.

In a decision sent on 10 February 2023 Ms A Lewenstein on behalf of the EAT’s Registrar decided that the appeal had been properly instituted out of time, and declined to extend time. The claimants appealed from that decision to a judge. In the established way, I have decided the issues entirely afresh based on my consideration of all the materials and arguments presented to me.


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