In this week’s alert we review a case concerning an application to extend the deadline for lodging an appeal against an employment tribunal decision, says Caroline Rayner of Baines Wilson LLP. The claimant lodged her appeal 675 days out of time and said this was due to depression and anxiety which had impaired her throughout that period. Was this enough to extend the time limit to allow the appeal?
Palihakkara v The English Sport Council
The claimant’s original claims were brought against The English Sport Council after she worked for them through an agency for around a month in 2017. She brought claims for direct race discrimination and victimisation and then brought further claims against the agency, which were struck out. A number of orders were not complied with, and the claimant stated that she had been involved in a car accident which had affected her physical and mental health.
The claimant applied for a stay on the proceedings and the tribunal accepted that she might be suffering from anxiety at the time. However, that was not considered unusual and did not prevent the claimant from preparing for or attending a hearing. The application for a stay was refused and directions were given to prepare the case for trial on 1 April 2019. The tribunal also refused to reconsider previous decisions given by other judges in the case, as requested by the claimant. The written reasons were sent to the parties on 8 April 2019. The claimant should have appealed within 42 days of that date if she wished to do so, i.e., by 20 May 2019. Further hearings took place after this which the claimant attended, but no appeal was submitted.
The claimant eventually lodged an appeal to the Employment Appeals Tribunal (EAT) on 25 March 2021, 675 days out of time. There is a discretion for the EAT to extend the time in certain circumstances under the rules, which is granted only in exceptional circumstances. The EAT Registrar refused to extend the appeal period and the claimant appealed against that decision to refuse the extension.
The claimant said that she was too mentally unfit to submit her appeal within the 42-day time-limit and was struggling to eat and feed herself and make basic decisions during that time. Whilst there had been some improvement in her condition since 2019 after the tribunal decision made on 1 April 2019, she had been affected by the pandemic and the health issues of a relative. The EAT accepted that she had suffered from mental health issues that had impacted upon her ability to engage fully with the proceedings, which was supported by medical evidence. The evidence confirmed the claimant had a “standing diagnosis” of depression and anxiety, with a risk of relapse, and painted a picture of someone with various health issues.
The relevant questions for the EAT to answer on extensions of time are established in case law as follows:
1. What was the explanation for the default?
2. Did this amount to a good explanation? and
3. Are there circumstances which justify the EAT taking the exceptional step of granting an extension of time?
Mental health difficulties are relevant and, on the evidence, the EAT was satisfied that the claimant was suffering from mental health difficulties at the relevant time. However, did the conditions explain or excuse the failure to submit the appeal in time?
Decision
The EAT dismissed the application to extend time and the appeal against the Registrar’s order. The Judge decided that the claimant was able to submit the appeal within the 42-day time limit as she had done with regard to previous decisions. In any event, the mental health difficulties did not explain the entirety of the delay, which was almost 2 years. She could identify and express her concerns and was able to file a further appeal in April 2020 and complain about the previous decisions made. She was therefore able to engage with the process. The explanation given was not good enough. The EAT said that the 42-day time limit for presenting an appeal is both generous and clear.
The order that the claimant was appealing against had no continuing implications in the case as all directions had been complied with by that point and the trial had taken place. Even if the time was extended it would have no effect on the decision reached at the trial.
Comment
This case is a reminder of how strict the tribunals and EAT are in applying time limits, both in terms of appeals and also in relation to claims received by the tribunal. Even though there is a discretion to extend the time available, this is only exercised in exceptional circumstances where there is a good explanation for the delay and with regard to evidence. However, it is also a reminder to employers that in some cases, time limits can be extended and therefore if claims are received out of time they need to be dealt with properly and responded to on that basis.
If you have any questions in relation to time limits, tribunal claims or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
