Court of Appeal reinforces strict approach to EAT appeal deadlines

Background

In the case of Mulumba v Partners Group (UK) Limited and another, the Court of Appeal considered whether the Employment Appeal Tribunal (EAT) had been wrong to refuse extensions of time for two appeals brought by a former employee.

Following her dismissal, Ms Mulumba pursued a wide range of claims in the Employment Tribunal, including discrimination, whistleblowing detriment and unfair dismissal. Most claims were dismissed, with the exception of ordinary unfair dismissal.

She sought to appeal two separate Employment Tribunal decisions. The first appeal related to a preliminary judgment, which was submitted shortly after the 4.00 pm deadline on the final day for appealing. The second appeal related to the main merits judgment and was submitted using the correct appeal form before the deadline, but without the required tribunal judgment, written reasons and pleadings. Those documents were provided several days later.

The EAT registrar refused to extend time for either appeal, and those decisions were upheld by a judge of the EAT. Ms Mulumba appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal dismissed the appeal and confirmed that the EAT had been entitled to take a strict approach.

In relation to the first appeal, the court noted that nothing had been lodged within the required time limit. In those circumstances, there was no basis for treating the appeal as having been brought in time, and no legal error in refusing an extension.

In relation to the second appeal, the court accepted that the appeal form (and possibly the grounds of appeal) had been submitted before the deadline. However, the appeal was not properly instituted because the Employment Tribunal judgment and written reasons had not been lodged. In this case, the judgment and reasons were contained in a single document, meaning that failure to lodge it was a serious omission, rather than a minor procedural defect.

The court rejected the argument that providing an explanation for missing documents was sufficient. Any explanation must amount to a good explanation, and the EAT had been entitled to conclude that the reasons relied on did not meet that standard. The fact that the documents were successfully submitted only two days later, without explanation as to why they could not be lodged before, undermined the argument that it had been impossible to comply within time.

The Court of Appeal also confirmed that separate Employment Tribunal decisions attract separate appeal deadlines, even where they arise from the same hearing or are closely connected. Confusion or perceived complexity does not alter the running of time.

Finally, the court held that the EAT had taken into account all relevant factors, including mental health issues, that the claimant was a litigant-in-person, IT difficulties and arguments about fairness. The weight given to those factors was a matter for the EAT, and there was no error of law in its approach.

Learning points for employers

This decision provides reassurance that the EAT will continue to apply appeal deadlines rigorously in the interests of finality and procedural certainty. Appeals that are late or incomplete will only be allowed to proceed in genuinely exceptional circumstances. Employers can take comfort from the courts’ clear message that procedural discipline matters, and that tribunal decisions should not be reopened lightly once the appeal window has passed.

For more information or advice, please contact Elizabeth McTeigue in our Employment team.