M Mulumba v Partners Group: strict time limits upheld despite confusion over multiple judgements

Ms Mulumba, a litigant in person, sought to appeal two decisions of the Employment Tribunal to the Employment Appeal Tribunal. The first appeal (appeal 1) related to a judgement sent on 18 October 2021, with a deadline of 29 November 2021. The second appeal (appeal 2) concerned a judgement sent on 4 January 2022, with a deadline of 15 February 2022.

Ms Mulumba submitted appeal 1 at 23.49 on 29 November 2021, just under four hours late. She submitted appeal 2 on 15 February 2022, but without crucial documents including the ET judgement and written reasons. These were provided after 4pm on 17 February 2022, three days late.

The Registrar's decisions

The Registrar of the EAT refused both applications for extensions of time. In appeal 1, whilst Ms Mulumba relied on her mental health, her status as a litigant in person, and IT difficulties, the Registrar found no good excuse for the default. The medical evidence provided did not demonstrate that her mental health had prevented her from lodging the appeal earlier.

In appeal 2, the Registrar held that the appeal was not properly instituted within the time limit. Ms Mulumba had explained difficulties with file sizes requiring specialist software to compress documents. However, the Registrar noted that whilst an explanation could be given for not attaching ET1 and ET3 forms, the absence of the judgement itself could not be explained away. The Registrar found no exceptional circumstances justifying an extension.

The EAT's decision

HHJ Wayne Beard dismissed Ms Mulumba's appeals from the Registrar's decisions. Regarding appeal 2, he distinguished it from Richardson v Extreme Roofing, noting that in cases where the judgement and written reasons are in a single document, failure to provide the judgement was not a minor error. Where the judgement was provided, any explanation for not providing other documents must be a 'good reason'. The Judge found Ms Mulumba's explanation unsatisfactory, as she had managed to provide the documentation in suitable electronic form within three days.

On appeal 1, the Judge found nothing that actually explained why the appeal was not lodged before 29 November, or why it could not have been lodged on 28 November. The mental health difficulties did not prevent Ms Mulumba from lodging the appeal on 29 November itself. The commencement of the ET hearing that day did not explain why the appeal had not been lodged earlier.

The Court of Appeal's analysis

Lady Justice Elisabeth Laing, giving the leading judgement, confirmed that the EAT had not erred in law. The principles in Ridley v HSBC did not apply because Ms Mulumba had not substantially complied with rule 3(1) of the Employment Appeal Tribunal Rules 1993 within the time limit. In appeal 1, she lodged nothing in time. In appeal 2, at most she lodged the notice of appeal form and grounds of appeal, failing to lodge the judgement, written reasons, or pleadings.

Rule 37(5), which allows extensions for 'minor errors', also did not assist. Ms Mulumba had not made an error in complying with rule 3(1); rather, she knew she was not complying and chose to provide an explanation instead. In any event, where the written reasons and judgement were in the same document, failure to lodge the judgement was not a minor error.

Ms Mulumba's argument that the deadline for appeal 2 should be calculated from the later judgement (judgement 3) rather than judgement 2 was rejected. The Judge had been entitled to hold that these were separate decisions with different deadlines. There was no evidence that Ms Mulumba was confused about the deadline for appeal 2; indeed, her attempt to lodge it on 15 February 2022 demonstrated she knew the correct date.

Observations on strictness

Lord Justice Lewison agreed with the dismissal, albeit with reluctance. He observed that had this been an application for permission to appeal to the Court of Appeal, a delay of one or two days might well have been forgiven. However, the EAT takes a much harder line. This court had opportunities to modify that strictness, most notably in Green v Mears Ltd, where it rejected an invitation to adopt the more lenient approach applied in tax tribunal cases. The Court of Appeal remains bound by that authority.

The Court identified that EAT Form 1 is potentially misleading and ought to be revised to conform with the rules, particularly regarding the distinction between providing explanations for missing documents versus the judgement itself.

The appeal was dismissed. The decision reinforces the strict approach to EAT time limits, emphasising that even short delays by litigants in person facing mental health difficulties will not necessarily justify extensions of time absent exceptional circumstances or substantial compliance with the rules.

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