News - CA confirms that the EAT must conduct a re-hearing of a Registrar’s decision to refuse an extension

Employment & Discrimination - Darshan Patel

The Appellant, Mr Nicol, submitted an appeal to the EAT from a decision of the Employment Tribunal within time. However, in breach of the rules and due to an oversight, he failed to attach a copy of the written reasons of the Employment Tribunal to his appeal. He subsequently corrected this error, but 33 minutes after the 42-day time limit for submitting an appeal. His appeal was therefore rejected and he sought an extension of time from a Registrar of the EAT. The Registrar dismissed his appeal and so Mr Nicol appealed to the EAT. The EAT also dismissed the appeal and re-stated the strict principles that apply to a request for an extension of time in this context. However, in dismissing the appeal, the concluding paragraph of the EAT’s judgment suggested that the judge believed that she was conducting a review of the Registrar’s decision, not a re-hearing. Mr Nicol appealed to the Court of Appeal, who listed a “rolled-up” hearing to determine whether permission to appeal should be granted and whether the appeal should be allowed on the basis that the EAT judge had misdirected herself.

After hearing submissions from both parties, Underhill LJ and Henderson LJ upheld Mr Nicol’s appeal. They determined that the judge had misdirected herself and had treated her discretion as being limited to a review rather than a re-hearing. Given Mr Nicol’s personal extenuating circumstances explaining why he was unable to submit an appeal any earlier, given that this was a “missing document” case where the appeal itself had been filed on time, and given the short delay in submitting the documentation, the Court of Appeal found that the EAT’s error might have made a difference to the outcome. The matter was therefore remitted to the EAT.

Darshan Patel, Third Six Pupil, successfully represented Mr Nicol on behalf of the Bar Pro Bono Unit.

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