Labour & European Law Review Weekly Issue 528 12 July 2017
The rules governing time limits for submission of claims and appeals to tribunals are strictly governed by legislation. In J v K and anor, the Employment Appeal Tribunal (EAT) held that anyone appealing against a strike out because of a medical condition must present medical evidence to back up their assertions which is “bespoke” to them as opposed to “off the peg”.
After unsuccessfully bringing proceedings for discrimination and victimisation, costs of £20,000 were awarded against J. He then filed a notice of appeal against the costs order, which the tribunal received on 3 October 2016 (a Monday). However, as the time limit for appealing expired at 4.00pm on 30 September 2016 (a Friday), the notice was recorded as having been received three days out of time.
In reality, however, it was an hour late. This was because J had tried to lodge his appeal electronically about 90 minutes before 4.00pm as one file, but it was too large for the tribunal’s inbox. By the time he had sent them in several separate files, the office had closed and the appeal could not be accepted as “properly instituted” until the following working day, which was Monday 3 October 2016.
J applied for an extension of time but the request was struck out under rule 37(1A) of the EAT Rules 1993 which states that “Where an act is required to be done on or before a particular day it shall be done by 4pm on that day.”
Appeal against strike out
Relying on the general principle that the day ends at midnight, J argued that his appeal had, in fact, been filed in time as it reached the tribunal’s inbox before midnight on 30 September.
Alternatively, he argued that if his appeal was deemed to have been filed out of time, it should be saved by Rule 39(1) of EAT Rules which states that “Failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs”.
Finally, he argued that if the appeal was filed out of time and was not rescued by Rule 39(1), the EAT should exercise its discretion to allow him to proceed because of the “very considerable prejudice” he would face, such as the risk of losing his home.
The EAT dismissed J’s primary contention that his appeal was lodged in time. Rule 37(1A) was the rule that Parliament had deemed should be applied to all appeals from the Employment Tribunal to the EAT and therefore had statutory force. Any other rules were irrelevant. Nor could Rule 39(1) help him as it only applied once proceedings had been commenced.
Although J made numerous references during the hearing to his mental ill health (depression, anxiety and stress and suicidal tendencies as well as being HIV-positive), he did not produce any medical evidence to back up these assertions.
And although he referred the EAT to a number of online articles, the judge said that medical evidence had to be “bespoke” as opposed to “off the peg”. The internet could not amount to evidence as to how J was affected by his disabilities and in particular it did not explain in medical terms why he was unable to lodge his appeal within the time limited for doing so.
Finally, the EAT held that the fact that J had failed to allow himself sufficient time to submit the material in the series of emails was not a basis for the exercise of discretion in his favour.
It therefore dismissed the appeal.