The employment appeal tribunal has allowed an extension of time to properly institute an appeal following the claimant’s solicitors ‘genuine mistake’ in uploading the wrong document to a notice for appeal.
His Honour Judge James Taylor in H Rogers v Secretary of State for Justice said the claimant’s solicitor’s failure to upload the right documents in their submitted reasons for appeal of an employment tribunal decision was not a minor error but there was ‘scope for a little more leniency’ in granting an extension of time.
The judgment deals with an appeal from a refusal of an extension of time within which to properly institute an appeal.
A reserved employment tribunal judgment was sent to parties with two attachments: a covering letter and the judgment and reasons. The claimant’s solicitors saved the covering letter with the file name ‘judgment’ and saved the judgment and reasons under the file name ‘reserved judgment’. The day before the time limit for instituting an appeal, the solicitors submitted a notice of appeal. They uploaded the document saved as ‘judgment’ which was the covering letter and not the judgment and reasons.
The employment appeal tribunal notified the claimant’s solicitor of the error, it was rectified that day, but by that time the appeal was 17 days out of time.
The judge said the failure to submit the judgment and reasons did not constitute a minor error under rule 37(5) of the Employment Appeal Tribunal Rules 1993 as it was a ‘core document’ which was ‘necessary for the appeal tribunal to understand the decision under challenge and to assess whether there is an arguable error of law’.
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Finding this was a ‘genuine mistake’, the judge said: ‘I have been provided with a full and candid explanation for the failure properly to institute the appeal.
‘The claimant had instructed solicitors. The solicitors prepared grounds of appeal and had all the necessary documents ready to submit. Through what can fairly be characterised as a single error with three components: the covering letter was mislabelled as the judgment, that document was uploaded, and no adequate check was undertaken.
‘It is clear that the intention was to upload the judgment and reasons. As soon as the error was identified, the solicitors promptly rectified it and applied for an extension of time, accepting that an error had been made and explaining frankly how it had occurred.’
Granting an extension of time, the judge said it was in the balance of justice to do so.
He added: ‘The respondent will suffer no specific prejudice beyond that inherent in facing an appeal which would otherwise have been barred, including, as is unfortunately common at the moment, delay.
‘The delay before the error was corrected was brief. The error was rectified promptly once identified by the EAT staff. There is no suggestion that the respondent’s ability to respond to the appeal has been impaired.’
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