Background
Mrs Stephens was employed by the Health and Safety Executive as a recruiter from July 2021 to April 2022. She resigned following a period of sick leave related to anxiety, having sought reasonable adjustments for ADHD and gone through an unsuccessful grievance process. She brought claims for disability, age, and sex discrimination in the Employment Tribunal in July 2022, represented throughout by her husband as her lay representative.
Shortly before a scheduled seven-day final hearing in March 2024, two case management disputes arose: the tribunal permitted a pregnant witness to give evidence by CVP video link, and refused two applications by the claimant to postpone the hearing, noting that medical fit-notes alone were insufficient and that reasonable adjustments could be made at the hearing itself. Facing the imminent hearing, her husband — concerned about potential costs and the toll on her mental health — negotiated a “drop hands” settlement through ACAS. A COT3 agreement was reached and he wrote to the tribunal on 8 March 2024 withdrawing the claim, which the tribunal dismissed on 18 March 2024. The claimant sought to retract the withdrawal days later, but the tribunal directed her to appeal if she disagreed with the outcome.
The claimant brought four separate appeals to the EAT: Appeal 1 against the dismissal on withdrawal (3 days late); Appeals 2, 3, and 4 against the CVP direction and the two postponement refusals (between 85 and 116 days late). The EAT Registrar refused extensions of time for all four appeals, and the claimant appealed those refusals to a judge, bringing the matter before Deputy Judge Andrew Burns KC.
The Court’s Holding
The Deputy Judge refused extensions of time for all four appeals and dismissed them accordingly. Applying the established framework from J v K [2019] IRLR 723 and United Arab Emirates v Abdelghafar [1995] ICR 65, the court held that the claimant had not demonstrated exceptional circumstances justifying an extension. While her ADHD, anxiety, depression, and caring responsibilities for her elderly mother were acknowledged, the medical evidence did not establish that those conditions actually prevented her from lodging the appeals in time. GP records from the relevant period contained no entries reflecting functional impairment in pursuing legal proceedings, and earlier reports from 2023 indicated her ADHD had improved with medication. The court also noted she was capable of detailed correspondence with the tribunal during the same period and had her husband’s assistance until March 2024.
The court further held, following Aziz v Bethnal Green City Challenge Co [2000] IRLR 111, that the merits of the proposed appeals were a proper consideration and heavily weighed against granting any extension. Appeal 1 was assessed as hopeless: the grounds did not engage with the correct legal test for challenging a withdrawal and dismissal, and failed to identify any error of law in the tribunal’s acceptance of what appeared to be an unequivocal, ACAS-confirmed settlement. Appeals 2, 3, and 4 — challenging case management decisions on wide discretionary grounds — were found to be very weak, as the tribunal had acted within its discretion and had repeatedly invited the claimant to supply adequate medical evidence which was never provided. All four appeals were additionally rendered academic by the binding COT3 settlement, which, applying Freeman v Sovereign Chicken Ltd [1991] ICR 853, was likely enforceable against the claimant given her husband’s ostensible authority as her representative.
The court rejected the argument that litigant-in-person status provided a separate basis for relief, reaffirming that unrepresented parties are held to the same time-limit standards as legally represented parties per Muschett v London Borough of Hounslow [2009] ICR 424. It also declined to treat an extension of time as a reasonable adjustment under disability equality principles, finding no substantial disadvantage compared to non-disabled persons had been demonstrated in the circumstances.
Key Takeaways
- Medical evidence must specifically address functional impairment during the delay period — a diagnosis or fit-note confirming incapacity for work is insufficient to establish inability to pursue an EAT appeal in time.
- The EAT may assess the merits of a proposed appeal when deciding whether to extend time: where an appeal is plainly hopeless or academic, that is a weighty factor against granting the extension, consistent with the overriding objective of dealing with cases justly and without waste of resources.
- A binding COT3 settlement concluded by a lay representative with ostensible authority is likely enforceable against the claimant and can render underlying appeals academic, further militating against an extension of time.
- Litigant-in-person status, and even disability, do not automatically excuse non-compliance with the 42-day EAT appeal time limit; the same exceptional-circumstances threshold applies to all appellants.
Why It Matters
This decision reinforces the strictness of EAT time limits and provides practical guidance on how the merits of a proposed appeal interact with applications to extend time. By analogising the extension-of-time hearing before a judge to the rule 3(10) sift process, the court articulates a coherent rationale for dismissing plainly hopeless appeals at the extension stage rather than allowing them to consume tribunal resources for months before an inevitable adverse sift outcome.
The case is also a sobering reminder of the risks facing claimants who settle through ACAS under pressure. Once a COT3 is concluded by a duly authorised representative, it will ordinarily bind the claimant, and a subsequent change of heart — even one driven by genuine distress or a sense that the settlement was reached under duress — is unlikely to be remedied through the EAT appeal process absent a direct challenge to the validity of the settlement itself.