Davies v BMW (UK) Manufacturing Ltd

Factual and Procedural Background

The Appellant appealed to the Employment Appeal Tribunal (EAT) against a decision of the Employment Tribunal (ET). The appeal was considered late, and the Appellant applied for an extension of time, which was refused by the Registrar of the EAT. The Appellant then appealed that refusal to a judge of the EAT, who dismissed the appeal. The Appellant now appeals to this court from the order dismissing her appeal for an extension of time. Permission to appeal was granted in light of a recent related decision.

The Respondent was aware of the appeal and hearing but did not attend, relying instead on a skeleton argument. The Appellant represented herself, preparing grounds of appeal, a skeleton argument, and a bundle of authorities. The court clarified that it did not have jurisdiction to hear the original appeal from the ET to the EAT or the ET claim itself. At the hearing, the court indicated that the appeal succeeded and that it would substitute the decision of the EAT with one granting an extension of time for the appeal.

The relevant facts include that the ET dismissed the Appellant's claims in July 2021, and the written reasons were sent in September 2021. There was some confusion about the exact date the written reasons were sent, but it was agreed to be 21 September 2021. The appeal to the EAT was lodged on 2 November 2021 without the ET's judgment attached, which was later provided after the EAT pointed out the omission. The appeal was thus instituted late by approximately 140 days.

The Appellant explained the omission was due to technical issues with the EAT's server requiring multiple emails and mental health difficulties supported by medical and university documentation. She relied on case law and argued that the judgment was not crucial as it was evident she lost in the ET, and that her appeal was properly instituted once the judgment was provided.

Legal Issues Presented

1. Whether the EAT erred in refusing an extension of time for lodging the appeal despite the Appellant substantially complying with procedural requirements.
2. How the discretion to extend time under the relevant rules and case law should be exercised in circumstances involving technical difficulties and late correction of procedural errors.
3. The legal significance of missing documents when an appeal is otherwise timely lodged and the application of principles from recent case law, including Ridley v HB Kirtley and others.

Arguments of the Parties

Appellant's Arguments

• The EAT's server limitations forced her to send multiple emails, causing a document to be omitted inadvertently.
• The judgment was not a crucial document because her appeal inherently indicated she lost at the ET.
• Mental health issues and university support were relevant factors affecting her ability to comply strictly with procedural requirements.
• She relied on case law, particularly Fincham and Ridley, to support extension of time and substantial compliance with the rules.

Respondent's Arguments

• The Judge correctly applied the approach in Ridley by considering how substantially the Appellant complied with the rules.
• The Appellant left lodging the appeal until the last day, took no steps to follow guidance on server limitations, and failed to check documents properly.
• The Appellant’s health was not a causal factor; the error was a simple human mistake and failure to check.
• The judgment was a crucial document against which the appeal lies and cannot be equated with a missing page or lesser document.
• The Judge was entitled to refuse the extension of time based on these factors.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the exercise of discretion by the EAT in refusing the extension of time, identifying five key errors of law. First, the EAT failed to recognise the important legal distinction between a late appeal and a timely appeal with a missing document. Second, the EAT incorrectly measured the relevant delay from the expiry of the deadline rather than from when the Appellant was notified of the omission and corrected it. Third, the EAT improperly treated the mistake, which was venial in nature, as a reason to refuse extension. Fourth, the EAT did not give proper weight to the technical difficulties with the EAT's server that caused the error, which aligned with the precedent in J v K. Fifth, the EAT failed to appreciate that the Appellant had very substantially complied with the Rules, given that the appeal itself and the written reasons for the ET decision were included, lessening the importance of the missing judgment document for instituting the appeal.

The court also noted that the EAT's decision was made before the Ridley decision and that the Appellant was unrepresented at the EAT stage. The court found that the EAT's errors were material and that, absent these errors, the EAT might have extended the time for the appeal. The court emphasised the discretionary nature of the power to extend time, guided by principles of fairness, justice, and judicial even-handedness.

Considering the facts and authorities, the court concluded that the combination of factors justified extending time as a matter of justice. The court exercised the EAT's power to extend time itself, citing the need to save judicial resources and avoid further delay, despite the Respondent's objection to this exercise of power.

Holding and Implications

The court ALLOWED THE APPEAL and substituted the EAT's decision with one extending the time for the Appellant to bring her appeal to the EAT.

The direct effect is that the Appellant's appeal to the EAT is now properly instituted despite the earlier procedural error. No new precedent was created; rather, the court clarified and applied existing principles on the discretion to extend time, particularly emphasizing substantial compliance and the relevance of technical difficulties. The decision highlights that courts should exercise discretion flexibly and justly, especially where procedural errors are promptly corrected and the appellant has substantially complied with the rules.