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It has long been established that appeals to the Employment Appeals Tribunal fall under brutally tight time limits. Employees across the UK have bellowed cries of giddy anguish when their appeals against the decisions of the Tribunal have not been accepted due to appeal notices being sent even a day out of time. Even the most heartbreaking of excuses have been dismissed by the Employment Appeal Tribunal. The strict rules have been applicable not only to aggrieved employees but employers. However, the recent Court of Appeal decision in Jurkowska v Hlmad Limited 2008 brings welcome relief on the strict rules on time limits but also leaves key questions unanswered.
In September 2006, a young lady brought forward complaints of disability discrimination against her employer. It was argued on behalf of her employer that she was out of time and hence the Employment Tribunal had no jurisdiction to hear her complaint.
After hearing lengthy and detailed submissions by barristers for both parties, the Tribunal found that the Employee had made her complaint within the time limits and therefore the case could be assessed by the Employment Tribunal. The Chairman of the Tribunal delivered Judgment and then asked both barristers to wait for the Judgment to be typed and given to them.
No further judgment was sent to the parties or their solicitors, and the employer's barrister did not pass on the judgment he had been given to his instructing solicitors. Written reasons were requested, and these were later supplied to the solicitors. An appeal against the tribunal's decision was lodged on behalf of the employer at 2.15 pm on the last day for appealing, and, while the notice of appeal was accompanied by the written reasons, the formal written judgment was not included, as required by rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993. The Employment Appeal Tribunal responded by fax at 3.37 pm pointing out the omission. The employer's solicitor obtained a copy of the judgment from the employment tribunal and it was faxed to the appeal tribunal at 4.33 pm, the time for lodging the appeal having expired at 4 pm, pursuant to rule 37(1A). The employer sought an extension of time under rule 37(1), the solicitors stating by a written submission that they had been unaware that there was a written judgment giving the tribunal's decision which was separate from the reasons sent to them. The registrar granted an extension of time; and, on appeal by the claimant, the judge upheld the registrar's decision, finding that the solicitors' misunderstanding in respect of the judgment was pardonable and represented the sort of exceptional circumstance which attracted the exercise of the discretion to extend time where the error was promptly rectified Naturally, the employee's representatives argued that no flexibility should be given to the employer and relied upon the principles set out in United Arab Emirates v Abdhelgafar 1995 . The employer's solicitors were aware of the decision and it had a barrister who attended the hearing who was given a copy of the Judgment. In effect, it was argued that an authorised representative for the employer was given Judgment and therefore there was no reason to give any form of breathing space.
The main argument put forward by the employee's representatives was that a barrister must be classed as being an authorised representative. If a barrister is given a document by any Court or Tribunal then surely it can be said that the relevant rules have been satisfied.
The Court of Appeal, despite having concerns about the Employment Appeal Tribunal's reasoning, held that discretion was appropriate in such a case and that there was nothing wrong in not applying the strict time limits.
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