The Respondents lodged a Notice of Appeal against a Prohibition Notice under the Health and Safety at Work Act 1974. Rule 105(1)(a) of the Tribunal Rules 2013 gave the Respondents 21 days to appeal. Rule 105(1)(b) gave the Employment Tribunal a discretion to excuse lateness provided it was not reasonably practicable to lodge the Notice of Appeal on time. The Respondents accepted that it would have been reasonably practicable to lodge it on time but contended that the Employment Judge had general dispensing powers under Rule 5. They argued that having regard to Rule 5 the Employment Judge was entitled to allow the appeal though late having regard to factors that lay outside Rule 105(1)(b). The Employment Judge accepted he had discretion under Rule 5.
Held that the dispensing power available was that provided under Rule 105 (1)(b) and that Rule 105 was a self-contained rule setting a time limit for appeals against Prohibition Notices and providing a discretion for non-compliance on a more restricted basis than that provided in the body of the Rules. In these circumstances the Employment Judge had no jurisdiction under Rule 5 to relieve the Respondents of non-compliance with the statutory time limit. As regards the cross appeal, the Employment Judge had been correct to hold that on a proper construction of Rule 105(1)(a) the 21 days for appeal included the day when the Prohibition Notice was issued.
 UKEAT 0044 – 19 – 1003
England and Wales
Updated: 30 November 2021; Ref: scu.653913