The Court of Appeal has told a litigant who was more than two months late lodging an employment appeal that he cannot rely on his interpretation of new guidance applied following the Mitchell case.
Leslie Green wanted a fresh chance to bring unfair dismissal proceedings in the employment tribunal, maintaining that civil procedure rules had been sufficiently relaxed to mean he could be granted leniency.
In Green v Mears Ltd, Lord Justice Underhill said existing principles applying to employment tribunals should not be superseded, even if they create – in theory – stricter rules.
The court heard Green, representing himself, received the employment judge’s ruling and reasons in October 2013 and had until 12 November to instigate an appeal.
Green said he was ‘computer-illiterate’ and he did not access the judgment booklet online or ask anyone for help. Instead he twice made an application for a reconsideration and was refused both times, the second time in December 2013.
By the time he lodged an appeal with correct documentation on 24 January 2014 it was 73 days out of time.
Green argued he was wrongly advised by staff at the original tribunal to await the outcome of his reconsideration application before lodging any appeal. He said he found the appeal process to be a ‘daunting prospect’, but Her Honour Judge Eady found no exceptional grounds on which to grant an extension.
In the Court of Appeal, Underhill said the case examined whether the 1995 principle set in Abdelghafar still stood. On that occasion, the EAT refused an extension even though the default had not caused prejudice to the party successful in the original proceedings.
On at least three further occasions the Court of Appeal had considered whether the Abdelghafar approach was too strict, and each time the principle upheld.
But since then, new principles have developed under amended Civil Procedure Rules. The definitive guidance in Mitchell and Denton, argued Green, ‘superseded’ Abdelghafar and allowed the court to take a more measured approach if the delay had not been considered serious or significant.
Underhill said the new guidance was not initially aimed at extensions of time for appealing, and in any case it was ‘certainty [not] in the direction of greater laxity’.
Assuming Abdelghafar and Denton were intended to produce different outcomes, Underhill said the EAT was still bound by the decision in Abdelghafar.
A divergence of approaches between the civil courts and employment was ‘explicitly held to be legitimate’, added the judge, in fact ‘there are some differences between the EAT and the ordinary courts which may be relevant to how strict an approach is justified’.
Even if the Denton guidance should be applied, in this case the appeal would have failed in any case.
Underhill said Eady’s conclusions were ‘entirely reasonable’ as Green had been told about time limits and chose not to act promptly.
Edward Brown, instructed through the Bar Pro Bono Unit, acted for the appellant. Jeffrey Jupp, instructed by Legal Department, Mears Group plc, appeared for the defendant.