Mushett v London Borough of Hounslow gives valuable guidance on when the EAT will extend the deadline for lodging an appeal.
The EAT laid out a series of principles that it would apply. In summary these are:
- It is in the parties and the publics interest that the result of litigation should final and certain. This means that the approach to time limits should be stricter on appeal that at first instance.
- An extension of time will only be granted if the EAT is satisfied that there is a full honest and acceptable explanation for the delay
- The 42 day time limit will only be relaxed in rare and exceptional cases. There is no excuse, even for an unrepresented party, for ignorance of the time limit
- The EAT will consider the length of the delay and be aware of the possibility of procedural abuse or intentional default
- The EAT will look at the whole period during which the appeal could have been lodged. This means that time will not be automatically extended if the appellant can show that it was impossible to present the appeal during the last week. The EAT might conclude that the appeal should have been presented during the first five weeks of the period. The decision will depend on the facts of each case.
The judgment also sets out the facts of the joined cases. It is worth noting that three of the four appeals were rejected. This underlines the key point to take from this case: make absolutely certain that any appeal is lodged well within time. The EAT’s approach to the deadline to appeal is strict and it will normally be impossible to persuade them to allow a late appeal.
Even if you are encountering problems, for example, in formulating the legal argument or obtaining legal advice, it is much better to put in a mediocre appeal, than to risk missing the deadline. It will be easier to improve a rushed appeal – even to the extent of putting in new grounds – than it would be to get permission for a late appeal.
One final note, always remember that an appeal has only been validly lodged if it contains all the documents required by s3 Employment Appeal Rules. The easiest way to make sure of this is to use the appeal form provided by the EAT, which contains a checklist of the required documents. An appeal without the correct documents attached will not be valid and, unless the mistake can be corrected within the normal time limit, will be considered late.