Green v Mears Ltd

Factual and Procedural Background

An appeal was brought against a decision of the Employment Appeal Tribunal ("EAT") dismissing an appeal against an order of the Registrar refusing the Appellant an extension of time for filing his appeal. The underlying proceedings involved the Appellant's dismissal by a Company providing repair and maintenance services for social housing, following an incident at a community trust property which was alleged to constitute harassment. The Appellant brought proceedings for unfair dismissal before an Employment Tribunal, which were dismissed. The Appellant was acquitted in the Magistrates' Court of the related harassment offence.

The Employment Tribunal's judgment and reasons were sent to the Appellant on 1 October 2013, starting a 42-day appeal period which expired on 12 November 2013. The Appellant applied for reconsideration of the Employment Tribunal decision, which did not extend the appeal deadline. The appeal to the EAT was lodged late, some 73 days out of time, and the Appellant applied for an extension of time which was refused by the Registrar and subsequently by Judge Eady on appeal. The Appellant contended he had been wrongly advised to await the outcome of his reconsideration application before appealing, but this was rejected by Judge Eady.

Legal Issues Presented

1. Whether the Employment Appeal Tribunal should adopt the Mitchell/Denton guidance (developed under the Civil Procedure Rules) for applications for extensions of time for appeals, instead of the established Abdelghafar guidance.
2. Whether the Appellant provided a sufficient explanation to justify an extension of time for lodging his appeal out of time.
3. The extent to which the strict approach to extensions of time for appeals under the Employment Appeal Tribunal Rules is appropriate and lawful.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the Abdelghafar guidance, which is strict and generally requires a good reason for any delay, should be superseded by the more recent and sophisticated Mitchell/Denton guidance applied under the Civil Procedure Rules.
• He argued that the Mitchell/Denton approach allows for a more nuanced and just consideration of extensions of time, including cases where non-compliance is not serious or significant.
• The Appellant also relied on personal difficulties, delays in receiving documentation, and alleged misleading advice from Employment Tribunal staff regarding the effect of a reconsideration application on appeal time limits.

Respondent's Arguments

• The Respondent supported the continued application of the Abdelghafar guidance, emphasising its lawfulness and appropriateness for the Employment Appeal Tribunal's procedural context.
• They argued that the divergence between the Employment Appeal Tribunal's approach and that of the ordinary courts is legitimate and justified by differences in procedural rules and the Tribunal's statutory framework.
• The Respondent relied on prior case law affirming the strict approach to extensions of time in the EAT and contended that the Appellant had not provided a sufficient explanation for the delay.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the established principles governing extensions of time for appeals to the Employment Appeal Tribunal, reaffirming the strict approach articulated in Abdelghafar and endorsed in subsequent cases such as Aziz, Woods, and Jurkowska. This approach requires a full, honest, and acceptable explanation for any delay, and extensions are only granted in rare and exceptional cases.

The Court acknowledged the Mitchell/Denton guidance developed under the Civil Procedure Rules, which applies a three-stage test considering the seriousness of the breach, reasons for default, and all circumstances. However, the Court found that the Employment Appeal Tribunal is entitled to maintain a different procedural approach because it is a specialist statutory tribunal with its own procedural rules and a longer appeal period.

The Court rejected the Appellant's submission that the Mitchell/Denton guidance should supplant Abdelghafar, emphasizing the binding nature of prior full Court decisions affirming the strictness of the EAT approach. It also noted that the Mitchell/Denton approach is generally stricter than the prior Court of Appeal approach and that the difference between it and Abdelghafar is not as great as it might appear.

Regarding the facts, the Court upheld Judge Eady's findings that the Appellant misunderstood the advice from Employment Tribunal staff and misinterpreted the letter accompanying the judgment. The Appellant did not provide an adequate explanation for the entirety of the delay, including the period after he was informed by the Citizens Advice Bureau that he was out of time. The Court found no legal error in the refusal to grant an extension of time.

Finally, the Court considered additional points raised by the Appellant after the hearing but concluded that these were either previously available or could have been made to the lower tribunal and did not warrant interference with the decision.

Holding and Implications

The Court DISMISSED the appeal against the refusal of an extension of time for filing the appeal to the Employment Appeal Tribunal.

The direct effect is that the Appellant's appeal remains out of time and therefore cannot proceed. The Court reaffirmed the strict approach to extensions of time under the Employment Appeal Tribunal Rules, maintaining procedural certainty and finality in employment appeals. No new precedent was set, and the decision confirms the continued validity and application of the Abdelghafar guidance over the Mitchell/Denton regime within the EAT context.