Jurkowska v Hlmad Ltd

Factual and Procedural Background

An appeal was brought by the Appellant against a decision of the Employment Appeal Tribunal ("the EAT") dated 17 May 2007. The Appellant was the claimant in a disability discrimination claim initiated against her former employer, Company A, in the London Central Employment Tribunal ("the ET") in July 2006, following termination of employment in January 2006. Preliminary issues, including the ET's jurisdiction to entertain the claim, were argued at a pre-hearing review on 25 September 2006. The ET Chairman held that the ET had jurisdiction, allowing the claim to proceed.

Company A sought to challenge this jurisdiction decision before the EAT. The deadline for instituting the appeal was 17 November 2006. However, one of the required documents was served 33 minutes late, resulting in the notice of appeal being treated as served out of time on 20 November 2006. The EAT treated this as an application for an extension of time to appeal. The Appellant opposed the extension, but the Registrar granted it on 30 January 2007. The Appellant appealed the Registrar’s decision, but Underhill J upheld the extension on a re-hearing basis. The present appeal challenges Underhill J’s application of the principles governing extensions of time.

Legal Issues Presented

1. Whether the judge properly applied the principles governing the discretion to grant an extension of time for appealing to the EAT.
2. Whether the receipt of a judgment by an authorised representative of the employer constitutes effective service of that judgment on the employer for appeal purposes.
3. The impact, if any, of the Employment Appeal Tribunal Rules 2004, rule 2A ("the overriding objective"), on the established principles for granting extensions of time.
4. Whether the circumstances in this case constituted a "rare and exceptional" case justifying an extension of time despite the late service of a required document.

Arguments of the Parties

Appellant's Arguments

• The judge misapplied the principles for granting extensions of time by failing to properly consider that the employer’s counsel was an authorised representative who had received the judgment, thus the employer had no excuse for omitting it from the appeal documents.
• The judge failed to adequately consider or weigh the reasons for the employer’s delay in serving the notice of appeal, particularly the fact that the appeal was instituted on the last day.
• The explanation for the omission of the judgment from the appeal documents was not acceptable, as there was no evidence why the solicitors overlooked this requirement.
• The introduction of rule 2A and the overriding objective should lead to a less strict approach to extensions of time, contrary to the judge’s decision.

Respondent's Arguments (Company A)

• The principles established in United Arab Emirates v. Abdelghafar remain authoritative and require strict adherence to time limits, with extensions granted only in rare and exceptional cases.
• The explanation for the delay need not always be a “good excuse” but must be considered alongside all circumstances to determine whether it is just to grant an extension.
• Even though the judgment was given to counsel, it was reasonable that the solicitors believed the written reasons sufficed as the judgment, constituting a pardonable error justifying an extension.
• The judge’s exercise of discretion was proper and within the scope of the Abdelghafar principles, and the delay was promptly rectified once identified.
• The overriding objective in rule 2A does not displace the Abdelghafar principles but is applied through them.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United Arab Emirates v. Abdelghafar [1995] IRLR 243	Principles governing the discretion to extend time for appealing to the EAT, including the requirement for rare and exceptional circumstances and a full, honest explanation for delay.	Formed the core framework for assessing whether to grant the extension; the court reaffirmed its continued authority and applicability despite the introduction of the overriding objective.
Aziz v. Bethnal Green City Challenge Company Ltd [2000] IRLR 111	Endorsement of Abdelghafar principles and strict approach to extensions of time, emphasizing that honest explanations may not be acceptable.	Confirmed the strict approach to extensions and rejection of late appeals without acceptable explanations; court relied on this for consistency with Abdelghafar.
Costellow v. Somerset County Council [1993] 1 All ER 952	Balancing the need for expeditious litigation and the avoidance of denying claims due to procedural default unless prejudice is caused.	Quoted to illustrate the intersection of public interest in time limits and fairness to parties, influencing the court’s approach to the extension application.
Duke v. Prospect Training Services Ltd [1989] IRLR 196	Extension of time may be refused even for very short delays.	Referenced to support the strictness of time limits and that short delays do not guarantee extensions.
Mrs E. Williams v. Ferrosan Ltd UKEAT/1005/03/MAA (5 March 2004)	Consideration of the overriding objective and its relationship to extensions of time.	Used to discuss the impact of the Civil Procedure Rules and the overriding objective on EAT procedures; court found no material change to Abdelghafar principles.
Woodward v. Abbey National Plc [2005] IRLR 782	Consideration of the overriding objective in extension of time cases.	Noted that if the overriding objective justified a more relaxed approach, it would have been mentioned; absence of such comment supported continuing strict approach.
Mrs G.L. Waller v. Bromsgrove District Council PA/0019/07/CEA (23 May 2007)	Application of Abdelghafar principles post-introduction of rule 2A; refusal to extend time where explanation for delay was inadequate.	Upheld the strict application of time limits and reaffirmed Abdelghafar principles despite the overriding objective.

Court's Reasoning and Analysis

The court began by reaffirming the established principles from United Arab Emirates v. Abdelghafar, which require that extensions of time for appealing to the EAT be granted only in rare and exceptional circumstances and upon a full, honest, and acceptable explanation for delay. The court emphasized that these principles remain authoritative despite the introduction of rule 2A incorporating the overriding objective of dealing with cases justly.

The court considered whether the receipt of the judgment by the employer's counsel constituted effective service on the employer. It doubted but did not decide this point, instead accepting the judge’s finding that counsel did not appreciate he was being given the only copy with the expectation to pass it on. This unusual practice and the lack of accompanying guidance contributed to the court’s view that the employer and its solicitors were unaware of the need to include the judgment in the appeal documents.

The court examined the employer’s solicitors' failure to include the judgment in the appeal papers. Although this was a procedural error, the court found the explanation—that the solicitors believed the written reasons sufficed—was a pardonable error in the circumstances, especially given the prompt correction once the omission was identified.

While the appeal was instituted on the last day, the court noted that appellants are entitled to use the full time allowed, though this increases the risk of procedural errors. The court found no misdirection by the judge in concluding that the circumstances were sufficiently rare and exceptional to justify an extension of time.

The court rejected the argument that rule 2A's overriding objective required a less strict approach to time limits. Instead, it held that the overriding objective is fulfilled by applying the established Abdelghafar principles, which provide a principled and just framework for discretion.

In conclusion, the court found that the judge’s exercise of discretion was lawful and that the extension of time was properly granted on the facts.

Holding and Implications

DISMISSED

The court dismissed the Appellant’s appeal, holding that the Employment Appeal Tribunal judge did not err in granting an extension of time for appealing despite the late service of a required document. The decision confirms the continued authority of the Abdelghafar principles as the governing framework for extensions of time in the EAT, even after the introduction of the overriding objective under rule 2A. The ruling emphasizes that extensions remain exceptional and require a principled discretion based on the circumstances and explanations provided. No new precedent was established beyond reaffirming existing law and the proper exercise of judicial discretion in the case’s particular facts.