Jurkowska v Hlmad Ltd: [2008] EWCA Civ 231

CA: Sedley, Hooper and Rimer LJJ: 19 January 2008

At an employment tribunal hearing to determine as a preliminary issue whether there was jurisdiction to hear an employee’s claim of disability discrimination, both parties were represented by counsel, without attendance by their instructing solicitors. At the end of the hearing, the chairman gave her decision orally and counsel were handed a formal written judgment which stated: “The judgment of the tribunal is that it has jurisdiction to hear the claimant’s claims of disability discrimination.” No further judgment was sent to the parties or their solicitors, and the employer’s counsel did not pass on the judgment he had been given to his instructing solicitors. Written reasons were requested, and these were later supplied to the solicitors. An appeal against the tribunal’s decision was lodged on behalf of the employer at 2.15 pm on the last day for appealing, and, while the notice of appeal was accompanied by the written reasons, the formal written judgment was not included, as required by rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993. The Employment Appeal Tribunal responded by fax at 3.37 pm pointing out the omission. The employer’s solicitor obtained a copy of the judgment from the employment tribunal and it was faxed to the appeal tribunal at 4.33 pm, the time for lodging the appeal having expired at 4 pm, pursuant to rule 37(1A). The employer sought an extension of time under rule 37(1), the solicitors stating by a written submission that they had been unaware that there was a written judgment giving the tribunal’s decision which was separate from the reasons sent to them. The registrar granted an extension of time; and, on appeal by the claimant, the judge upheld the registrar’s decision, finding that the solicitors’ misunderstanding in respect of the judgment was pardonable and represented the sort of exceptional circumstance which attracted the exercise of the discretion to extend time where the error was promptly rectified.

The employee appealed.

The Court of Appeal held:
The introduction of the overriding objective in rule 2A of the Employment Appeal Tribunal Rules 1993 to deal with cases justly did not require a different approach to the exercise of the discretion in rule 37(1) to grant an extension of time to appeal to the Employment Appeal Tribunal than that previously adopted by the appeal tribunal. While a good and acceptable excuse for the delay might not be a precondition to the exercise of the discretion under rule 37(1) where there was some exceptional circumstance, in the ordinary run of cases it would be necessary. While the court had reservations about the judge’s decision to waive the time limit, it was pre-eminently his decision and, on the facts of the particular case, was not an unlawful exercise of his discretion.

The appeal was dismissed.

Appearances: Sean Pettit (Alison Trent & Co) for the employee; Raoul Downey (DLA Piper UK LLP, Sheffield) for the employer.