QRS v London Borough of Tower Hamlets: EAT refuses time extension where ill health failed to explain email oversight

The Employment Appeal Tribunal has dismissed an appeal against a Registrar's refusal to extend time for a rule 3(10) hearing request, holding that the appellant's ill health did not adequately explain her failure to open two EAT emails over a period of nearly three months.

The claimant, a former employee of the London Borough of Tower Hamlets, had brought multiple claims under the Equality Act 2010 and for unfair dismissal, including on whistleblowing grounds. Her employment had ended in June 2022 following a tenure beginning in March 2018. The present appeal — her fourth before the EAT — challenged a tribunal decision refusing a further application to strike out the respondents' responses.

Following the paper sift, a judge formed the opinion under rule 3(7) that the grounds of appeal disclosed no arguable basis for proceeding. The EAT notified the appellant by email on 23 July 2024. The 28-day window for requesting a rule 3(10) hearing therefore closed on 20 August 2024. The appellant did not become aware of that email, or a subsequent EAT email of 26 September 2024, until a telephone call to the EAT on 18 October 2024. She made her rule 3(10) request shortly thereafter, but the Registrar declined to extend time. The appellant appealed that refusal.

HHJ Auerbach, rehearing the matter afresh, accepted that both emails had sat unread in the appellant's inbox and that she had genuine and longstanding conditions — including hypertension, temporomandibular disorder, and, from July 2024, clinically assessed moderate anxiety and depression. The court noted that by the end of her CBT course in October 2024 her scores had worsened to indicate severe depression and severe anxiety, with no improvement recorded across the treatment period.

Notwithstanding this, the judge was not satisfied that the failure to identify and act on the EAT's correspondence was materially caused by ill health. The evidence showed that, throughout the same period, the appellant had been compiling substantial litigation materials, drafting articulate submissions, and sending emails to the EAT and others in connection with the appeal. She had also remained aware that the sift decision was the outstanding next step. The judge noted that after the 18 October call, she was able to locate both emails immediately using a search filter — a technique available throughout the preceding months.

The judge applied the Abdelghafar framework and the guidance in J v K [2019] EWCA Civ 5, which requires medical evidence to demonstrate not merely the existence of ill health but its causal effect on the specific default. The homework materials from the appellant's CBT sessions, which included a note about neglecting email correspondence, did not, in the judge's view, displace the broader picture of continued functional engagement with the litigation.

The respondent further argued that the underlying appeal had become academic following the dismissal of the substantive claims at a full merits hearing in July 2024, which the appellant had not attended and had not appealed. Applying reasoning consistent with the Court of Appeal's recent approach in a related appeal — and its decision in Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585 — the judge found there was no realistic prospect of the EAT treating the February 2025 amendment application as a properly instituted appeal against the dismissal, nor any prospect of the strike-out appeal itself succeeding on its merits or producing any practical consequence.

The extension of time was refused and the appeal dismissed. The decision reinforces that contemporaneous evidence of other productive activity during the period of alleged incapacity will weigh against a claimant seeking to attribute procedural default to ill health, even where that health condition is genuine and documented.