England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL) DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HHJ TUCKER)

		The Royal Courts of Justice Strand, London WC2A 2LL
		27 September 2018

LORD JUSTICE UNDERHILL:

1. This is an application for permission to appeal, with the appeal to follow if permission is granted. The decision being appealed against is a decision of a Judge in the Employment Appeal Tribunal dismissing an appeal against a decision of the Registrar to refuse an extension of the time for appealing against a decision of the Employment Tribunal.
2. I should start with the relevant provisions of the Employment Appeal Tribunal Rules 1993 (as amended). Rule 3 is headed "Institution of appeal". Paragraph (1) provides that an appeal should be instituted by serving on the tribunal the documents specified under heads (a)-(f). These include not only the notice of appeal itself but a number of other documents including the judgment and the written reasons of the employment tribunal. Paragraph (3) provides for the time within which an appeal must be brought. The limit varies according to the circumstances in which the judgment and reasons were promulgated. In the present case it was, under head (a) (i), "42 days from the date on which the written reasons were sent to the parties".
3. Rule 37(1) gives the EAT power to extend any time limits provided for. It reads:

"The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or

abridged, and the date appointed for any purpose may be altered, by order of the Tribunal."

Rule 37(4) provides that any application for an extension of time shall be dealt with as an interim application under rule 20. That rule provides that interim applications should be considered in the first instance by the Registrar. Rule 21 gives a right of appeal from any decision of the Registrar to a Judge.

4. The principles governing the exercise of the discretion under rule 37 have been considered by this court on several occasions, most recently in Green v Mears Ltd [2018] EWCA Civ 731, in which I gave the leading judgment. It is not necessary to repeat the exercise which I carried out there. In short, the principles first enunciated by Mummery J in United Arab Emirates v Abdelghafar [1995] ICR 65, as expounded in Jurkowska v Hlmad Ltd [2008] EWCA Civ 231, [2008] ICR 841, continue to apply. Very broadly, if there is no good explanation for the failure to meet the deadline for appealing it is exceptional for the discretion to extend time to be exercised and a strict view is taken of what constitutes a good explanation or exceptional circumstances. (I should perhaps also note for the record that we were not referred in Green v Mears to the decision of this court in O'Cathail v Transport for London [2012] EWCA Civ 1004, [2002] IRLR 1001, in which Mummery LJ himself endorsed the continued application of the Abdelghafar guidelines and defended them against the criticism they were "hard hearted" - see paragraph 23 at page 1023.)
5. The Employment Tribunal's original decision in the appellant's case was made in August 2016. He applied for a reconsideration, and that application was heard on the 30 January 2017 and dismissed with reasons being given orally. The judgment recording that decision was not promulgated until 31 March, at which point the appellant became entitled to request written reasons. He did so, and those were sent to the parties on 2 May 2017. The reason for the delay in producing both the formal judgment and the written reasons appear to relate to the [employment] judge's ill-health.
6. The appellant then had 42 days from that point to institute his appeal, ie until 4.00 pm on 13 June 2017. He lodged an appellant's notice and most of the other documents required on 12 June, but by an oversight he omitted the Tribunal's written reasons. On having his attention drawn to that omission by the Appeal Tribunal he rectified it the next day, but not until 4.33 pm, with the result that his appeal as formally instituted was 33 minutes out of time. He applied for an extension but the application was refused by the Registrar.
7. The appellant appealed against the Registrar's decision under rule 21, and the appeal was heard by HH Judge Katherine Tucker on the 24 November 2017. The appellant appeared in person; the respondent was represented by a solicitor. At the conclusion of the hearing the Judge gave her judgment dismissing the appeal. I will return to some more aspects of her reasoning in due course, but at this stage I will only note the terms of her concluding paragraph (paragraph 17) which reads:

"Though a tough decision, the decision of the registrar was, in my judgment, a decision that was legitimate, within the law and involved a careful balancing of all the relevant factors which applied. Therefore, I do not consider that this appeal should succeed. That is my decision."

8. When the appellant's application for permission to appeal came before me on the papers, I was concerned that the language of paragraph 17 of the judgment showed that the Judge had treated her function as being limited to a review, on conventional reasonableness grounds, of the Registrar's exercise of the discretion under rule 37. If that was indeed her approach it seemed to me to be strongly arguable that it was wrong. It has long been understood by judges of the EAT itself, and alluded to (though not I think formally decided) by this Court, that on an appeal under rule 20 on an issue of this character the Judge proceeds by way of a rehearing. There are many observations to that effect in the EAT case law. I need only refer to the judgment of Mummery J in Abdelghafar at page 69E, and paragraph 6 of the judgment of His Honour Judge McMullen QC in Muschett v London Borough of Hounslow [2007] UKEAT 0281/07, [2008] ICR 424. I am not aware, as I have said, that that approach has ever been formally confirmed by this court, but I would be prepared to endorse it. I appreciate that appeals, for example, from a Master or District Judge in the High Court are no longer by way of rehearing. But the circumstances of this kind of application in the EAT are peculiar to it. The Registrar's functions are not primarily judicial – indeed he or she has not always been a qualified lawyer – and whereas his or her decision will be made on the papers alone the appeal to the Judge, in a case involving an extension of time for appealing, is always determined at a hearing at which the Judge has the opportunity, to and generally does, hear evidence. In those circumstances, the Judge's appellate approach should not be limited to one of review.
9. That point was not identified by the appellant, who was at that stage without legal assistance, as a ground of appeal; and I did not consider it right to allow it to be taken without the respondent having the opportunity to object. It was for that reason that I directed that there be the present rolled-up hearing. The appellant has been represented before us by Mr Darshan Patel of counsel acting pro bono. The court is very grateful to him for his assistance, as I am sure the appellant is. The respondent has been represented by Mr Rad Kohanzad of counsel. Both counsel have made their submissions succinctly and clearly.
10. I start with the point which I have just identified about the approach taken by the Judge. Mr Kohanzad sensibly did not object to the grounds of appeal being taken as amended to allow that point to be taken. He also accepted that the appeal from the Registrar's decision was by way of rehearing. But he contended that the language of paragraph 17, which I have quoted, does not reflect the substance of the Judge's reasoning. He referred to earlier passages in which she appears to have come to her own conclusion on the proper application of the Abdelghafar principles. In particular, at paragraph 11 of the judgment, she said:

"On balance, my view is that this appeal should not be allowed. The explanation given by the Appellant, though I do not doubt its honesty, is not 'good' in the sense that it does not justify and explain in a sufficiently valid way the failure to lodge the appeal in time, given the particular factual background against which the appeal was lodged."

She also in the following paragraphs reviewed the explanation which the appellant had given, which was, broadly speaking, that his mother had died on 19 April in Nigeria and that following his death he had had to return to Nigeria and was there until the 10 June, that is only three days before the expiry of the time limit. The Judge would not, Mr Kohanzad submitted, have set out that explanation in the detail that she did if she had not been intending to express her own conclusion on its validity; and he says that she clearly did so in her paragraph 11. He reminded us of the authorities that require us not to take a nit-picking approach to the language used by a judgment of an Employment Judge and said that the same applied to a judgment of the EAT. It was necessary to read the judgment as a whole in order to determine the true reasoning.

11. There is some force in those points. But in the end the language of paragraph 17 is quite clearly the language of review; and it is impossible to overlook the Judge's use of the word "therefore". I simply do not think that that language, in what appears to be the concluding paragraph of the judgment stating the Judge's reasoning, can be overlooked or explained away. I think we are obliged to take the Judge's approach from the explicit words that she used. I accordingly believe that she did indeed misdirect herself as to the extent of her appellate function.
12. Mr Kohanzad's alternative position is that any error by the Judge was immaterial. He said that it was sufficiently clear from her judgment that if she had treated the appeal as being by way of rehearing she would have come to the same conclusion. He referred to the same passages as I have already referred to. I am not sure that is quite the right way of putting it. In this jurisdiction, in a case where a Judge has misdirected himself or herself in the exercise of a discretion, I think that the test for an appellate court or tribunal, in considering whether to remit, is whether on a correct exercise of the discretion there is only one conclusion to which the tribunal in question could properly have come. That is, I think, trite law but it is in any event confirmed by the recent decision of this court in Jafri v Lincoln College [2014] EWCA Civ 449, [2015] QB 781.
13. Even formulating the question in that way, I have not found the answer altogether straightforward. It is true that the deadline was only missed by a very short period and that this is a missing document case rather than one where an appellant's notice was not lodged at all. But the jurisprudence makes it clear that that is not necessarily enough. The case of Jurkowska, to which I have already referred, is illustrative. In that case, sitting in the EAT, I granted an extension in circumstances which were, on the face of it, very similar to those of the present case: the deadline had only been missed because, as here, one of the ancillary documents had not been supplied, and it was supplied within (coincidentally) 33 minutes after the time expired. This Court upheld my decision, but it did so only with some reluctance on the part of Rimer LJ and extreme reluctance on the part of Sedley LJ, and only on the basis that I had identified a further and very specific circumstance which rendered the error as regards the missing document venial. The decision illustrates that missing the deadline by a matter of minutes can be fatal, even in a case of the missing document kind.
14. The essential question, at least on the EAT's current practice, is whether it is arguable that there are in this case any additional circumstances which would render it legitimate to extend time. As to that, Mr Patel relies on the circumstances relating to the death of the appellant's mother and his consequent absence in Nigeria until three days before the deadline. The essential point is that if it was reasonable for him to be abroad for all that time, he only had two or three days to get the documentation right: the argument that if you leave it to the last minute you cannot expect any indulgence if you make even a small error of the kind made here does not for those reasons carry its usual weight. In those very particular circumstances, he submitted, the fact that only a single document was omitted and the deadline was only missed by half an hour or so could justify the exercise of the discretion in the appellant's favour.
15. I accept that submission. I wish it to be clearly understood that I am not myself saying that the discretion ought necessarily to be exercised in the appellant's favour. There are certainly points about the adequacy of the explanation relied on which, after further debate and consideration, might entitle the EAT to refuse an extension. But that is not the kind of exercise which it should be for this court to perform. It must be a matter for the EAT, and I do not regard this case as one where the outcome is certain.
16. In those circumstances the right course is in my view to grant the appellant permission to appeal, to allow the appeal and to remit the question of whether an extension should be granted to the EAT to be determined at a further hearing.
17. As I observed when giving permission, this may be a short-lived victory. The appellant must appreciate that the extension may not be granted; and even if it is I of course express no view as to the merits of the underlying appeal, which will have to be considered by the EAT under its usual sift process.

LORD JUSTICE HENDERSON:

18. I agree.

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