The appellant had earlier appealed against a decision of the employment tribunal and had posted all relevant documents a fortnight before the expiry date for appealing. The EAT had no record of receiving the documents and it was only 6 weeks after postage that the appellant realised he had heard nothing.

The appellant later sent replicas, but the EAT notified him that on its calculation he was out of time and invited him to apply for an extension. This application was refused by the Registrar. The appellant contended that he not read the guidance booklet, entitled ‘The Judgement’, which explicitly advises contacting the EAT within 7 days of posting if no acknowledgement is received.

The appellant sought to rely on the case of Peters v Sat Katar Co Ltd [2003] EWCA Civ 943 in which the Court of Appeal allowed an extension when the notice of appeal to the EAT had been lost in the post. However, the Court of Appeal rejected the appeal, noting that while the posting issue was a good reason for the initial period of delay, the appellant should later have checked whether it had been received. The case was distinguishable from Peters as that case was decided prior to the booklet being routinely referred to by the tribunal when sending out written judgments.

Practical Lessons

The key question in this appeal was whether the EAT should normally refuse an extension of time to appeal if the Notice of Appeal has been lost in the post and the appellant has not promptly followed it up. The answer, in England and Wales at least, is now clearly yes.

Northern Ireland is a little different as the ‘Explanatory Notes’ which are sent out with an industrial tribunal decision are less detailed. The Explanatory Notes contain no equivalent obligation on the potential appellant to contact the OITFET to ensure the appeal has been received.

The Court of Appeal stressed the importance of the guidance contained in the accompanying booklet, but it is difficult to see how the same expectations could apply to an individual in Northern Ireland without similar wording being used in the accompanying notes. The Peters decision prompted a change in the wording in England and Wales, perhaps the OITFET in Northern Ireland could follow suit.
http://www.bailii.org/ew/cases/EWCA/Civ/2018/1435.html