When considering whether to extend time for a claimant to lodge an appeal, the EAT can take into account a number of issues, including whether there was a reasonable explanation and whether there were wider circumstances that would warrant the extension. It concluded, in the case of Palihakkara v The English Sport Council, that the claimant’s mental ill health did not justify an exceptional delay of 675 days.
Basic facts
Ms Palihakkara brought claims of direct race discrimination and victimisation against the Sport Council, where she had worked from 9 October to 10 November 2017. On 4 October 2018, she also brought claims against the recruitment agency that had placed her at the council.
Tribunal decision
On 14 February 2019, the tribunal struck out Ms Palihakkara’s claim against the agency and also refused an application to amend her claim against the council. In addition, it made an unless order requiring her to comply with other orders that had been made at a previous hearing, failing which her claims would be struck out.
In February and March 2019, she made several applications for an extension of time to comply with the unless order, stating that she was having mental and physical problems following a car accident.
After several additional preliminary hearings and various extensions of time, a further hearing was held on 1 April 2019. The tribunal’s judgment, setting out a number of orders, was sent to the parties on 8 April.
In a letter dated 19 February 2020, she made various complaints regarding the unless order made on 1 April 2019, describing it as an “abuse of process”, arguing that she was not being treated by the tribunal in the same way as her former employer.
Following a further hearing in February 2021, Ms Palihakkara lodged a “retrospective appeal” against the decision on 1 April 2019, asking for it to be varied “so that there is sufficient consequence to both parties of noncompliance”. As she was 675 days out of time by this point, her application was refused, and she appealed.
Relevant law
Although section 3(2) of the Employment Appeal Tribunal Rules 1993 stipulates that the deadline to appeal is 42 days from the date on which the written record of the decision was sent, section 37(1) gives the tribunal the discretion to extend time.
EAT decision
The EAT identified three questions that tribunals have to answer when considering an extension of time:
- What is the explanation for the default?
- Does it amount to a good explanation?
- Are there circumstances which would justify the EAT taking the exceptional step of granting an extension of time?
Although Ms Palihakkara had explained the delay by reference to her mental ill health, the EAT held that although it might have impacted on her ability to engage with the proceedings from time to time, it could not explain a delay of 675 days.
Apart from anything else, not only had she successfully lodged an appeal against a different tribunal decision within the requisite time period, she had also identified and articulated her complaints against the tribunal decision she was seeking to challenge, both in subsequent hearings and in another appeal that she had lodged prior to this one.
Nor was this a case where there were any circumstances that would justify the exceptional step of granting an extension. There was no basis on which she could argue that solicitors acting for the trust had misrepresented matters to the tribunal and the appeal itself had been rendered academic as she had complied with the unless order that was the subject of her complaint.
The EAT concluded that the delay was very significant and there was no merit in the proposed appeal and, therefore, it should be dismissed.