Employment Flash - 6th January 2010

---

An irrelevant page is missing from an ET1 when an appeal is filed... is the appeal defective? If it is defective and the defect only comes to light after time for filing the appeal has expired can you get an extension?

Nationwide Leisure Ltd v Parnham [2009] UKEATPA 0724 09 DM

Time limits are meant to be complied with and the EAT is well known for enforcing its 42 day time limit for filing an appeal pretty unmercifully ("The denizens of the EAT seem to me to be a hard hearted lot and mercy thinly flows in the lifeblood of the rules and practice which govern their consideration of applications to extend time for appeal", Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180, Ward LJ, para 27; "those responsible for making the rules have decided 42 days is ample time for a dissapointed party to take advice on appealing, to decide whether or not to appeal, and to prepare and serve the necessary documents", UAE v Abdelghafar [1995] ICR 65, Mummery J, p.69B-D). It is also well known for the exacting requirements it places on an appellant if an appeal notice is going to be held to have been filed in time (para 2.1, Practice Direction (Employment Appeal Tribunal - Procedure) 2008).

One such requirement is that the ET1 is lodged as part of the appeal documents. N complied with the requirements regarding documents and filed at 1.01 p.m. by email on the 42nd day, save that unnoticed by the solicitor page 8 of the ET1 was missing; it was missing because N had never had it, the ET had served only the first 7 pages. Its absence did not go unnoticed by the EAT staff but unfortunately they did not contact N's solicitor until 4.59 p.m., 59 minutes after time expired.

N applied to the Registrar for an extension of time, which the claimant opposed. The Registrar refused to extend time. N appealed.

There was no intentional default by N; the delay was short; the appeal was not hopeless [and there was £36,660 at stake awarded by the ET for unfair dismissal, wrongful dismissal and sex discrimination]; an extension would not prejudice the claimant. HHJ Clark also accepted that page 8 was not a page that had any bearing on any issues raised by the appeal. He granted the extension based on the unusual circumstance that N had submitted the entire ET1 as it had been sent by the ET to N in the first place (when N was representing itself) and taking into account the other factors raised by N. Had N received the full ET1 from the ET and simply missed sending page 8...

Employment Team