According to the rules of the Employment Appeal Tribunal (EAT), an appeal cannot be said to have been lodged properly until all the relevant documentation has been received. In Fincham v Alpha Grove, however, the EAT held that it was appropriate to grant an extension of time in a case where the last page of the original ET3 was missing.
Basic facts
Mr Fincham, who represented himself, brought tribunal claims for breach of contract (which was rejected) and unfair dismissal (which succeeded on procedural grounds). On 20 November 2018, two days before the deadline for submitting an appeal, he delivered his Notice of Appeal together with some accompanying documentation to the EAT by hand.
Although the receipt confirmed the date of lodging the appeal, it expressly stated that it did not constitute confirmation that the documents had been lodged in accordance with the relevant practice direction. On 11 December he was informed by the EAT that a page seemed to be missing from the employer’s original Grounds of Resistance (the ET3) to his claim.
Although he emailed the missing page the next day, he was informed that as his appeal had not been lodged in accordance with the rules until 12 December 2018, he was 20 days out of time.
Tribunal decision
When considering whether to grant an extension of time, the Registrar made clear that, for an appeal to be properly lodged, all relevant documents had to be included along with the Notice of Appeal, as set out in the EAT’s Rules and Practice Direction.
Although he was a litigant in person, it was still his responsibility to familiarise himself with the time limits for bringing an appeal, not least because there was no duty on staff at the EAT to ensure that litigants were familiar with the procedures to be followed.
The Registrar therefore concluded that the missing page was a result of his own oversight. Firstly, he had not expressly confirmed that he had personally checked the paperwork to ensure that all the pages were present when he hand-delivered his application to the EAT. Nor had he explained why he had left it until so close to the deadline to submit his appeal. As Mr Fincham had not provided an explanation that amounted to a good excuse, nor provided any other reason for granting an extension, she therefore declined to do so.
EAT decision
The EAT agreed with the Registrar that Mr Fincham’s appeal was not properly instituted until the missing page was supplied. As such, it was lodged 20 days out of time.
However, it allowed an extension of time on the basis that the information contained on the last page was not necessary to understand the tribunal’s decision. Nor did the EAT need to see it in order to understand the substantive basis on which Mr Fincham proposed to appeal the unfair dismissal decision.
The failure to include a copy of the last page was a genuine error on Mr Fincham’s part, which he had not appreciated until it was drawn to his attention. When it was, he acted promptly to rectify it. He had not been lax or dilatory in any other respect. The fact that he had only left himself two days before the time limit was irrelevant because even if he had submitted the paperwork seven days beforehand, the EAT might still not have picked up on the missing page for days or even weeks after the time limit expired.
Given all these particular circumstances, the EAT concluded that this was an exceptional case in which an extension of time should be granted.