Judgment approved by the court for handing down Mangwanya v National Association of Citizens Advice Bureaux
Rolls Building
Fetter Lane, London, EC4A 1NL
Before :
HIS HONOUR JUDGE JAMES TAYLER
Between :
Miss G Mangwanya
Appellant
- and -
National Association of Citizens Advice Bureaux
Respondent
BAYO RANDLE (instructed by Brighton Mutebuka) for the Appellant
GEORGINA CHURCHHOUSE (instructed by Bates Wells) for the Respondent
Appeal From Registrar’s Order
Hearing date: 30 September 2025
JUDGMENT
SUMMARY
Practice and procedure
Although the delay in submitting the appeal was very short and resulted from human error there was significant prejudice to the respondent and it was not appropriate to grant an extension of time to submit the appeal.
HIS HONOUR JUDGE JAMES TAYLER
The issue in this appeal from a Registrar’s Order is whether an extension of time should be granted where an appeal was submitted a little past the time limit.
The parties are referred to as the claimant and respondent as they were before the Employment Tribunal.
The claimant submitted a claim that was received by the Employment Tribunal on 15 December 2020. The claim raised complaints under the Equality Act 2010, including complaints of race and disability discrimination. After a lengthy hearing in November 2021 and November 2022, and deliberation in early 2023, the complaints were dismissed by a judgment sent to the parties on 23 February 2023.
The deadline to appeal was 4pm on 6 April 2023. The appeal was submitted (with two pages of the claim form missing) at 6.24pm on 6 April 2023; and so was treated as instituted on 7 April 2023, one day out of time.
Mr Randle or the claimant summarised the grounds of appeal in his skeleton argument:
The Claimant contends that the Tribunal erred in law and has advanced ten grounds of appeal. In summary, the grounds allege errors of law and perversity in the Tribunal’s approach to evidence, the application of the EqA and time-limit provisions; failures to give adequate reasons; and conduct giving rise to a real appearance of bias. Taken together, the Claimant contends that those errors demonstrate that the Judgment cannot safely stand and should be set aside [emphasis added]
Despite asserting bias the grounds of appeal were not supported by a statement of truth as required by Section 3.10.2 of the EAT Practice Direction 2023 (then in force).
The Registrar refused to grant an extension of time. An appeal from a Registrar’s Order involves considering the application for an extension of time afresh.
The claimant has physical disabilities and provided evidence of mental health issues including stress, anxiety and depression.
The claimant has been assisted at times by her son Mr. Mutebuka, who has significant bowel conditions that can be very debilitating at times.
The claimant provided evidence in a witness statement about the effects her conditions had on her. Mr. Mutebuka gave evidence at the hearing about his conditions and the effect they had on his ability to assist the claimant. Mr. Mutebuka is a solicitor, but he does not specialise in employment law.
In March 2023, the claimant sought legal advice. She initially sought to deal with the appeal herself. She struggled to find assistance. She turned to her son. On 23 March 2023, Mr. Mutebuka started to look for Counsel. By 6 April 2023, Counsel had prepared grounds of appeal and the documentation was ready to be submitted. Both the claimant and Mr. Mutebuka had the documentation necessary to submit the appeal. They had not made clear arrangements about who would submit the appeal. The claimant initially attempted to do so, but struggled with the online system. Mr. Mutebuka stated that the situation was “fluid” and that it was “back and forth on the day” with documents being “shared to both email addresses”; i.e. the email addresses of the claimant and Mr. Mutebuka.
Mr. Mutebuka tried to take over. He arrived in his office in the afternoon of 6 April 2023, and then was indisposed for a period. I did not find his evidence about the events of 6 April 2023 clear. I accept that the claimant and Mr. Mutebuka have medical conditions that made it more difficult for them to deal with the submission of the appeal than others who do not have such medical conditions. They genuinely wanted to ensure that the appeal was submitted in time. However, they left it very late to instruct Counsel. Their failure to submit the appeal within the generous time limit was predominantly the result of poor organisation. While the appeal is treated as submitted one day out of time I accept that the delay in submission of the appeal was in effect of two hours and 24 minutes.
There was a significant delay before the respondent was informed of the appeal. In October 2023, without being aware that an appeal had been submitted, the respondent disposed of its verbatim notes of the hearing, save for an attendance note, of limited value to the appeal.
Rule 37(1) EAT Rules gives the EAT the power to extend time:
37(1) The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal. …
The EAT has for many years adopted a relatively strict approach to the time limit for the submission of an appeal. In United Arab Emirates v Abdelghafar and Anor [1995] ICR 65, EAT, Mummery J stated that the EAT will expect a full and honest explanation for the delay and will consider whether there are circumstances which justify granting an extension of time. Mummery J stated that the EAT should consider the explanation for the delay, whether it provides a good excuse for the default and whether there are circumstances that justify the EAT taking the exceptional step of granting an extension of time.
There is a discretion to be exercised in every case. In Ridley v HB Kirtley [2024] EWCA Civ 884, [2025] I.C.R. 441, the Court of Appeal stated, at paragraph 6, that previous decisions should not be treated as a fetter on the proper exercise of discretion:
We of course accept the broad proposition, by which this Court is bound, that the EAT is entitled to enforce the time limit strictly. …we accept Mr Crozier and Ms Greenley’s submission that the broad power to extend time has become ‘encrusted by authority’ in a way which has led to the emergence of rigid sub-rules which are not justified by the broad terms of rule 37(1), or by the reasoning in the important relevant cases. As a result, some judges have tended to rely on those sub-rules for automatic answers, rather than to consider the exercise of the discretion afresh in each case, by looking closely at the facts of each case, and not relying on generalisations.
The EAT will take account of any medical condition that may have contributed to a failure to submit an appeal in time: J v K [2019] EWCA Civ 5, [2019] I.C.R. 815. If the Tribunal finds that the failure to institute the appeal in time was indeed the result (wholly or in substantial part) of the applicant's mental ill-health, justice will usually require the grant of an extension.
In Ridley, having reviewed the authorities, Nicola Davies LJ and Elisabeth Laing LJconcluded that a more generous approach is permitted where a Notice of Appeal is submitted in time, but some documents are missing, as opposed to where the Notice of Appeal is not submitted in time.
With effect from 30 September 2023, Rule 37 EAT Rules was amended to add:
If the appellant makes a minor error in complying with the requirement under rule 3(1) to submit relevant documents to the Appeal Tribunal, and rectifies that error (on a request from the Appeal Tribunal or otherwise), the time prescribed for the institution of an appeal under rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to any respondent. [emphasis added]
The requirement to submit the ET1 claim and ET3 response was removed and a specific power to extend time was added where an appellant has made a minor error in complying with the requirement under rule 3(1) EAT Rules to submit relevant documents.
In Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36, [2024] I.C.R. 803 the EAT held that the new Rule 37(5) EAT Rules applies to any application for an extension of time to submit an appeal determined after the new rule came into effect, even if the appeal was submitted before the rule change. However, the EAT held that a failure to submit the entire particulars of response was not a minor error. On appeal to the Court of Appeal, the issue about the applicability of the new Rule 3(5) EAT Rules to appeals submitted before the rule change was not challenged, but the decision that the omission of the particulars of response was not a minor error was overturned: Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585. Elisabeth Laing LJ held:
‘Minor’ is an ordinary English word. It is a comparative adjective, as the Judge observed. The opposite of ‘minor’ is ‘major’. Rule 37(5) refers to ‘a minor error in complying with the requirement under rule 3(1) to submit relevant documents’ to the EAT. Whether an error is ‘minor’, or not, therefore, is not an abstract question. It is to be answered in the context of compliance with rule 3(1).
Had the appeal been submitted in time I would have concluded that the failure to submit two pages of the ET1 was a minor error that could be forgiven pursuant to Rule 37(5) EAT Rules.
The real issue in this appeal is whether I should exercise the discretion to grant an extension of time in respect of the two hour and 24 minutes delay in submitting the appeal. The main reason for the late submission of the appeal was disorganisation and, to a much lesser extent, difficulties faced by the claimant and Mr. Mutebuka in seeking to submit the appeal on the last day because of their medical conditions.
Difficulties that occur as the time limit to submit an appeal is running down have on occasion been treated as sufficient explanation to grant an extension of time: Farmer v Heart of Birmingham Teaching Primary Care Trust UKEATPA/0896/14/LA and Acetrip Limited v Mr Abhishek Dogra UKEATPA/0329/18/BA.
Failures to submit appeals in time often result from human error. In X v Y and others [2025] EAT 128, I noted in the context of a missing documents case:
We all make mistakes from time to time. No rational person who has gone to the trouble of drafting a Notice of Appeal will deliberately fail to submit documents that they know are required. The mistake will often be an oversight - forgetting to submit the documents. If you forget to do something it can be very difficult to explain why you forgot. That’s the point - you can’t remember. You may only be able to give your best guess as to why you made the mistake.
Where a claimant fails to submit a required document because of an honest and genuine mistake, this may support the granting of an extension of time. The EAT will require transparency and candour. It remains the case that an extension is not to be granted as of right. The EAT will be very slow to grant an extension if a claimant is economical with the truth or seeks to mislead the EAT as to the reason for the default. While an honest mistake in submitting required documents may be understandable, it certainly is not the fault of the respondent, so any significant prejudice to the respondent is likely to weigh significantly against granting an extension.
This is a case in which the claimant failed to submit the appeal in time, rather than a missing documents case. The delay is brief. I do not accept that the claimant has a good excuse for the delay. The medical conditions of the claimant and Mr. Mutebuka made the process of submitting the appeal more challenging than it would be for others who do not have their conditions - but the substantive reason for the delay was disorganisation and human error. While there is no good reason for the delay, that does not necessarily mean that an extension could not be granted. The delay was of a very short period of time. But I have concluded that an extension is not appropriated. There is significant prejudice to the respondent as a result of having destroyed its contemporaneous notes of the hearing, in an appeal in which it is asserted that the Employment Tribunal was biased and there are extensive challenges to the reasons of the Employment Tribunal. The appeal from the Registrar’s Order is refused.
Although not necessary to my decision, I have considered the judgment of the Employment Tribunal and the grounds of appeal and very much doubt that the appeal was arguable.