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Extension of Time

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Did the Claimant’s mental health condition explain her very delayed appeal, such that the EAT should extend time?

No, held the EAT in Palihakkara v The English Sport Council.

The Claimant lodged an appeal 675 days out of time. The EAT Registrar refused an extension. The Claimant appealed against that decision. Appeals from the Registrar’s decision on time extensions entail a fresh decision by an EAT judge.

The Employment Appeal Tribunal Rules 1993 provide that the deadline to appeal is 42 days from the date of sending of written reasons. Section 37 contains a discretion to extend time. The approach to adopt is summarised at paragraph 4.7 of the EAT Practice Direction 2018.

The EAT considered the extent to which the Claimant was able to participate in legal proceedings at the relevant time by considering three questions:

  1. What was the explanation for the default?
  2. Did that amount to a good explanation? (J v K)
  3. Were there circumstances which justified the EAT taking the exceptional step of granting an extension of time?

Medical evidence supported the Claimant’s contention that she had depression and anxiety which impaired her throughout the 675 days. The EAT accepted this, but did not find that the health condition explained or excused the failure to institute the appeal. Finding that the health difficulties did not explain the entirety of the delay, the EAT took into account that in correspondence the Claimant was able to identify and articulate her legal complaints.

It is not always appropriate to consider the merits of a proposed appeal in determining whether to extend time, but it can be relevant where the appeal would be academic or where it is apparent that it is totally without merit. That was, in the judgment of Eady P., the position here. Appeal dismissed.

Thanks to Karen Jackson of didlaw for preparing this case summary.