The Court of Appeal has considered the EAT's strict adherence to the 42-day time limit for instituting an appeal.
As all employment practitioners know, the EAT requires certain documents to be attached to the Notice of Appeal. If any document is missing, the appeal is invalid. In this case, Jurkowska v Hlmad Ltd, one of the documents was omitted in very unusual circumstances, and was lodged 33 minutes after the 4pm deadline.
The Court of Appeal upheld Underhill J.'s decision to extend time for instituting the appeal. Whilst confirming that the strict approach in United Arab Emirates v Abdelghafar remained good law, the three Court of Appeal judges took different views as to certain aspects of that judgment and to EAT practice / procedure:
- Rimer LJ considered that an extension of time might, in exceptional circumstances, be granted even if the Appellant has no 'good reason' for the delay (which is a mandatory requirement under Abdelghafar (para. 19)
- Hooper LJ was doubtful about the comments in Abdelghafar to the effect that a lack of prejudice to the Respondent is immaterial (para. 60)
- Sedley LJ did not think that any changes should be made to the Abdelghafar test (para. 71), although he showed some tentative leaning towards Rimer LJ's views