In order to persuade a tribunal to extend time for lodging an appeal against a tribunal decision, appellants have to provide a “good excuse for the default”. In Hawkes v Oxford Economics Ltd, the EAT held that the failure of an email to arrive with the appeal tribunal and the lack of an email “bounce back” was sufficient to permit an extension of time.
Mr Hawkes, who was summarily dismissed in January 2019, appealed against the tribunal’s decision to reject his complaint.
The deadline for bringing the appeal was 16.00 on 9 February 2021, but because he had been unwell and because he thought he needed other documentation, Mr Hawkes only started emailing the appeal documents to the EAT at 15.29 on that day.
At 15.33, he sent another email attaching the notice of appeal and the tribunal judgment. As Mr Hawkes did not receive a “bounce back” email, he did not realise that the second one had not been received.
He then sent a series of further emails, all of which were delivered before 16.00.
The EAT emailed Mr Hawkes on 17 February to say that they had not received a notice of appeal. He responded the next day, attaching the emails that he had sent at 15.29 and 15.33 on 9 February.
On 6 April, the EAT wrote to Mr Hawkes formally telling him that his appeal was out of time. It explained that he could apply to extend time but that he had to provide “a full and honest explanation” of the reason for his failure to comply in order to satisfy the tribunal that he had a “good excuse for the default”. He replied on 19 April, attaching an email from his service provider EE dated 9 April explaining that he had suffered a connectivity issue on 9 February.
The Registrar did not consider that this constituted a “good excuse” for submitting the appeal out of time and, therefore, refused to extend time.
The EAT found that, although Mr Hawkes did not have a good excuse for sending the necessary documents half an hour before the time for appealing expired, in practice this would not have made any difference because if the same thing had happened a week previously, he would still not have known about it until after time for lodging the appeal had expired.
It then noted that: “However, the immediate and main explanation for the default was that the email sent at 15.33 simply did not arrive at the EAT. The reason for the non-arrival was clearly a technical one which was not the fault of Mr Hawkes, and I am satisfied he did not know anything about it until he heard from the EAT on 17 February 2021. It seems to me that whatever happened is unusual these days: in general, I would consider that in the absence of a “bounce back” email it is reasonable to assume that an email which has been properly sent will be received by the addressee in a matter of seconds”.
The EAT rejected the suggestion that Mr Hawkes should have known there were problems with the server on the relevant day or that he should have noted that there was no acknowledgement of receipt relating to the email.
Given that there was a “good excuse” for the default, this was a case where the circumstances were such as to justify the exceptional step of granting an extension of time. The EAT therefore allowed the appeal against the registrar’s order.