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This appeal involved the question of whether it was reasonably practicable to bring a claim within three months. The tribunal found in the Claimant's favour, allowing a claim through out of time.

The employer had asserted, in the Response Form, that the claim was "abusive, vexatious and has been unreasonably conducted".

Following the Claimant's win, the employer appealed to the EAT. The employer lost the appeal - essentially on the basis that the question of time limits has been stated, again and again, to be a question of fact.

The point of note in this case is that the EAT awarded costs against the appellant employer. Two points of principle / reasoning were given, namely:

  • the fact that the appeal had succeeded at its preliminary hearing was not a talisman against a costs order ultimately being made (para. 28)
  • since the employer had, itself, threatened an application for costs in the Response Form, "the employers can have little complaint at being ordered to pay the costs of this appeal" (para 29) - a salutory warning to those who routinely include costs threats in pleadings or open correspondence with the other side.

Sims Ltd v McKee