Employment Cases Update

Evans (HM Inspector of Health and Safety) v Petrofac Facilities Management Ltd UKEATS/0044/19/SS & UKEATS/0045/19/SS

Date published: 09/09/2020

Appeal against the ET’s extension of a time limit for appealing a prohibition notice, and cross-appeal against the ET’s decision that the appeal was out of time. Appeal allowed and cross-appeal refused.

The Appellant issued a prohibition notice to the Respondents, and they appealed the decision, lodging a notice of appeal on what they thought was the last day for appeal. The ET considered the wording of rule 105(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("Tribunal Rules 2013"), which requires an appeal to be lodged "before the end of the period of 21 days beginning with the date of the service" of the prohibition notice, and concluded that the words "beginning with" included the day of service, so the notice of appeal was received out of time; however, the ET extended the time limit by virtue of rule 5 of the Tribunal Rules 2013 and allowed the appeal to proceed. The Appellant appealed against the ET's exercise of its dispensing power under rule 5; and the Respondents cross-appealed, arguing that the ET's decision that the appeal was out of time was incorrect and there was no need to exercise the dispensing power.

The EAT held that the ET had erred in concluding that rule 5 of the Tribunal Rules 2013 was engaged in this case, since the correct provision would have been rule 105(1)(b), but it only permits the extension of time in more limited circumstances which did not apply here. As to the cross-appeal, the EAT held that the wording of rule 105(1)(a) of the Tribunal Rules 2013 had an established meaning that did not need to be interpreted. Accordingly, the notice of appeal was served out of time, and the Appellant's appeal was allowed and the Respondents' cross-appeal was refused.

Read the full text of the judgment on BAILII or download the file by clicking the link below.