A TALE OF TWO RELIEFS – The Court of Appeal distinguishes between the procedure applicable in the Employment Tribunal and the Civil Courts.

May 1, 2022 3:56 pm Published by

Green v Mears Ltd [2018] EWCA Civ 751

Case Facts & Preliminary Law

This appeal to the Court of Appeal was made against a decision of the Employment Appeal Tribunal (EAT) for dismissing an appeal for an extension of time for filing an appeal. The appellant, Leslie Green, was employed by the respondent, Welwyn Hatfield Community Trust, and was dismissed following an incident when he visited a Trust property out of hours in order to try and make contact with his estranged son. The appellant brought a claim against the respondent for unfair dismissal, however, the claim was dismissed in September 2013. The judgement and reasons were sent to the parties on 1 October 2013 by second class post, and the appellant received them on 10 October 2013.

Pursuant to Rule 2 of the Employment Appeal Tribunal Rules 1993, the appellant had “42 days from the date on which the written reasons were sent to the parties” to apply for an appeal. Subsequently, the deadline for the appellant to submit his application was 12 November 2013.

The appellant decided to apply to the Employment Tribunal (ET) for reconsideration on 13 October 2013, however, the application was refused by letter dated 30 October 2013. He renewed his application but was refused again by letter dated 10 December 2013. It was made clear in a booklet accompanying the judgement and reasons, that “an applicant for reconsideration does not extend the time for appealing”. Nevertheless, the appellant lodged an application for appeal on 17 January 2014. As this application had omitted some of the required documentation, the appeal application was formally instituted on receipt of this documentation on 24 January 2014. It must be highlighted that this was 73 days out of time. On being notified that this was the case, the appellant applied for an extension, however, this was refused on 24 September 2014 on the basis that the application disclosed no arguable grounds. The appellant was provided with legal assistance and a renewed application was made, where counsel suggested that the guidance held in United Arab Emirates v Abdelghafar [1995] ICR 65 had been superseded by the Denton v T.H. White Ltd [2014] EWCA Civ 906 guidance.

Abdelghafar, a decision made by the EAT, provides that the 42-day time limit for appealing should “only be relaxed in rare and exceptional cases”, where the appellant provides the tribunal with a “full and honest explanation” amounting to a good excuse for the default. Although this approach has been reviewed in Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111, Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 and Jurkowska v HLMAD Ltd [2008] EWCA Civ 231, the Court has always concluded that this guidance is not too strict.

In Denton, the Court of Appeal provided new guidance on when courts should grant relief from sanctions. The tripartite test states that the first stage is to identify and assess the seriousness and significance of the non-compliance, the second stage is to consider why the default occurred, and the third stage is to evaluate all the circumstances of the case.

The appeal was heard on 6 January 2015, where it was submitted that the appellant had been wrongly advised by the ET employees as to the relationship between reconsideration and appeal applications. This coupled with personal difficulties, including his spouse’s bipolar condition, his father’s death and the financial consequences of unemployment, were the reasons for the late application.  The EAT emphasised that the appellant failed to provide an “explanation for the entirety of the period in question”, and even the partial explanation did not amount to a ‘good excuse for the default’.

Judgement Summary

The Court found the submission that ‘the guidance held in Abdelghafar had been superseded by the Denton principle’ to be ill-founded. The Court emphasised that courts and tribunals need not have the exact same procedural approach for certain issues including granting extensions of time. It was highlighted that the Denton principle was the appropriate approach for the civil courts, however, the Abdelghafar guidance was the suitable approach for the EAT to use. There were two main reasons for this. The first was that tribunals are subject to different rules and regulations and therefore, are required to take a different procedural approach. The second highlighted the importance of jurisdiction, as the EAT had jurisdiction in Great Britain, whereas the Court of Appeal only had jurisdiction in England and Wales. Subsequently, it would be incorrect to assert that all decisions of the Court of Appeal were binding on the EAT.

Looking Forward

It is important to note that appellants seeking to apply for an extension of time for filing an appeal, should consider the appropriate precedent in relation to the court or tribunal that they are applying to. The distinction between the procedural approaches taken by the civil courts and the tribunals is important as it reflects the different rules that govern them.

Riya Sharma – Trainee Solicitor

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