Background:

The claimant brought a claim for unfair dismissal.  This was dismissed by the Tribunal in December 2020.  The deadline to appeal that decision was 16.00 on 9th February 2021.  Half an hour before this deadline the claimant submitted a series of emails containing the requisite appeal documentation.   One of these included the notice of appeal and the original judgment.

The EAT did not receive the documentation and informed the claimant that he would have to apply for an extension of time.  The claimant stated that he waited so close to the deadline as he felt that he had to provide a statement of evidence (which he had been trying to obtain but still had not received).   He also stated that he had had Covid-19 so could not physically bring the papers to the Tribunal.  The registrar refused to grant an extension.

Outcome:

The EAT outlined that they did have a discretion to extend time but that it was very narrow and only to be used in exceptional circumstances in relation to an appeal.  This would only arise where there was a full and honest explanation for the non-compliance.  In this situation, the EAT stated that whilst the claimant should not have waited until the last half hour to hand in the materials there was still grounds to extend time.   Namely, the email had been sent yet there was nothing to suggest that the email had not gone through.  There was a technical fault which was of no fault to the claimant at all.  In the absence of any bounce back email the claimant was right to assume that the email had been received by the EAT server. The fact that the claimant had waited until so close to the deadline made very little difference as the same situation would have arisen had the claimant attempted to send the email earlier and been met with the same technical fault (which he had no knowledge of). As a result, the exceptional step was taken of granting an extension of time.

Practical Guidance for Employers:

The extension of time rules for an appeal are much more limited considering that those involved in the proceedings should be aware they are ongoing and if they wish to appeal they would then know that they have to abide by certain rules.   This situation demonstrates one way in which the exceptionality will be applied.  This is where the claimant had no knowledge that it had not been received – for this reason it was allowed.  This may be taken into account for other requests for extension of time which may be met whether in the IT or the Court of Appeal in NI.
https://www.gov.uk/employment-appeal-tribunal-decisions/alexander-hawkes-v-oxford-economics-ltd-2022-eat-179