Stephens v HSE: when good reasons are not good enough to extend appeal time

A disability discrimination claim settled under an ACAS conciliation agreement — and subsequently withdrawn by the claimant's own representative — has finally been put to rest by the Employment Appeal Tribunal, which refused to extend time on all four out-of-time appeals brought by Mrs Stephens against the Health and Safety Executive.

The judgement of Andrew Burns KC, sitting as Deputy Judge of the High Court, is a useful distillation of where the boundaries lie when a claimant advances multiple reasons for delay. It is also a salutary reminder that a COT3 settlement, once entered into by an authorised representative, is extremely difficult to unpick.

The background is sympathetic. Mrs Stephens, who has ADHD, depression and anxiety, resigned from the HSE in April 2022 after what she described as a failure to make reasonable adjustments. She brought claims for disability, age and sex discrimination. In the weeks before a scheduled seven-day hearing, the tribunal refused twice to postpone proceedings and permitted a heavily pregnant witness to give evidence by video link. Represented by her husband, Mrs Stephens settled on a drop-hands basis through ACAS and the claim was withdrawn. She sought to retract the withdrawal the following day, saying her husband had acted without her permission and under pressure. She later accepted that he had her authority to act and was trying to protect her wellbeing.

The COT3 settlement that resulted is almost certainly binding. Burns KC applied Freeman v Sovereign Chicken Ltd [1991] ICR 853, finding that the husband had ostensible authority to bind his wife. That conclusion alone renders the four appeals academic, and it shadows the entire analysis. As the judgement notes, there is simply no point in extending time for appeals that are, even on a preliminary view, bound to fail.

On the extension applications themselves, the EAT worked through each of the factors Mrs Stephens advanced. Her medical evidence was the central plank, but it did not hold. The records confirmed longstanding diagnoses and medication, but contained nothing to show that her conditions had specifically impaired her ability to manage documents or meet deadlines in early 2024. GP notes from that period recorded an ear condition, not a deterioration in mental health. Burns KC applied J v K [2019] IRLR 723, which requires medical evidence to address the functional question directly, not merely confirm that a condition exists.

The point about litigants in person was addressed squarely: Muschett v London Borough of Hounslow [2009] ICR 424 remains good law, and unfamiliarity with procedure does not lower the threshold for compliance. Mrs Stephens had, moreover, been assisted by her husband as representative throughout the critical period. She was able to correspond in detail with the tribunal, to compile appeal documents and to submit Appeal 1 when she felt ready. The EAT was not persuaded that an ability to function in some respects was consistent with a genuine inability to appeal in time.

The practical lesson from this case is twofold. First, where a lay representative settles a claim under a COT3 agreement, the principal will face an uphill battle to resile from it, however distressing the circumstances. Second, when medical evidence is deployed to excuse delay in appellate proceedings, it must go beyond confirming a diagnosis and speak directly to the claimant's capacity during the period in question. Background medical history, without more, will rarely be sufficient.

Mrs Stephens conducted herself with considerable dignity throughout. That the EAT noted her capable and well-structured submissions makes the outcome no less difficult, but it does not alter the legal position.

Stephens v The Health and Safety Executive [2026] EAT 88. Judgement of Andrew Burns KC, 16 June 2026.