United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S MOORE (of Counsel) Policy & Administration Dept London Borough of Hammersmith & Fulham Town Hall King Street London W6 9JU
For the Respondent	Mr T Pullen Hammersmith & Fulham Law Centre 142-144 King Street Hammersmith London W6 0QU


 


MR JUSTICE MORISON (PRESIDENT): This appeal raises a potentially important point. The London Borough of Hammersmith & Fulham wish to appeal against the decision of an Industrial Tribunal was promulgated on 11 March 1998. By their decision, the Industrial Tribunal concluded that the Applicant had been discriminated against on the grounds of his nationality, that his contract of employment had been breached and that a remedies hearing would have to be held in due course. The decision was promulgated and sent to the parties on 11 March 1998.

The Notice of Appeal in this case was received by the Employment Appeal Tribunal on 27 April 1998. It is dated 24 April 1998 and was sent to us by post.

There is no doubt that if the date from which time starts to run for the purposes of calculating the 42 day period from appeal, is the date when the decision was recorded as being sent to the parties, namely, 11 March 1998, that the Notice of Appeal was served on the EAT out of time. Equally, there is no doubt that if the date when the decision was sent to the parties on 11 March includes the time allowed for the receipt of that decision in the normal course of post, then the Notice of Appeal was served on the Employment Appeal Tribunal within time. Thirdly, there is no doubt that if the appeal was lodged out of time, it is not possible for the London Borough to put forward justification for time being extended, having regard to the principal set out in United Arab Emirates -v- Abdelghafar [1995].

The argument in favour of the Borough, namely, that the appeal was lodged within time, is shortly and succinctly stated by Ms Sarah Moore on their behalf. She submits that the correct interpretation of Rules 3(2) Employment Appeal Tribunal Rules, Statutory Instrument 1993/2854, leads to the conclusion for which she contends. Section 7 of the Interpretation Act 1978 provides under the heading, References to Service by Post as follows:

"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, prepaying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

Rule 3(2) of the EAT Rules provides "the period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which the Extended Reasons for the decision or Order of the Industrial Tribunal were sent to the Appellant". Accordingly, she contends that the word "sent" for the purposes of Rule 3(2) should be given the meaning referred to in Section 7 of the 1978 Act.

She submits that there is nothing which appears in the Employment Appeal Tribunal Rules and the time limit of 42 days from the date of sending in Rule 3(2) which gives a contrary intention to that prescribed by Section 7. Furthermore, she says that her interpretation is consistent with that given by the Employment Appeal Tribunal to similar expressions used in Rules 5(1) and 7.7. Rule 5(1) is dealing with the notification of the time and place of hearing Rule 7.7 is dealing with the right of a Tribunal to strike out an Originating Application if a party failed to pay the amount specified in an Order made by a Tribunal and a pre-hearing review.

The decisions referred to are respectively the Immigration Advisory Service -v- Oommen [1997] ICR 683 and Derrybaa Ltd, the Castro-Blanco [1986] ICR 546. In giving the judgment of the EAT in the first case, Mr Justice Keen said this:

"The employers in their skeleton argument on this issue argue that the second part of section 7 of the Interpretation Act 1978 only comes into operation in a case where, under the legislation to which section 7 is being applied, the document has to be received by a certain time. That argument has not been pursued orally by Mr. McMullen on behalf of the employers, but we shall none the less deal with it because it is set out in some detail in the documents lodged on behalf of the employers, and also because it was a matter to which the industrial tribunal applied its mind."

They then referred to a decision which is called Ex parte Rossi [1956] 1 QB 682 and cited a passage at 700 of that judgment.

The Employment Appeal Tribunal, having set out that extract, went on to say:

"We do not read Parker L.J.'s words in Reg. V. County of London Quarter Sessions Appeal Committee, Ex parte Rossi [1956] 1 Q.B. 682, 700, as confining the timing provision of section 7 of the Interpretation Act 1978 solely to cases where there is a time limit on the service of the document in question, and as excluding cases where the date of service is highly material as a point from which time begins to run for some necessary action. It should also be borne in mind that Ex parte Rossi was not dealing as such with the timing of service. It was a case where service had not been effect at all. In consequence Denning L.J. did not deal with the then equivalent of section 7 and Morris L.J. simply said that the concluding words of the section mean that the sending of the document is deemed unless the contrary is proved to have been effected at the time at which it would have been delivered in the ordinary course of post. ..... It is also important to note that Parker L.J. himself emphasised that the word "send" may be used in the sense either of dispatched or of delivered, and which is the correct interpretation depends upon the legislation and the object of sending the document ....

The natural meaning of section 7 of the Act of 1978 is that, where an expression such as "serve" or "give" or "send" is used in the legislation, then service is deemed to be effected if a particular method, namely, posting is used, and it is deemed to be effected at a particular time, namely, that at which the letter would be delivered in the ordinary course of post. The deemed time of service can be rebutted by proof to contrary but the deeming provisions as a whole in section 7 do not operate if a contrary intention appears in the principal piece of legislation which is under consideration."

They then applied that position to the facts of the case and Rule 7(7) of the Industrial Tribunal Rules of Procedure and they came to their conclusion that, in the context, the Industrial Tribunal were wrong to have held that the amount specified in the Order made by the Tribunal was made out of time.

They said this:

"We conclude that rule 7(7) of the Industrial Tribunals Rules of Procedure 1993 is to be interpreted in accordance with section 7 of the Interpretation Act 1978 and that the period of 21 days begins with the date of deemed service in the ordinary course of post unless the contrary is proved. In the present case, it was proved that the order was delivered on 25 November 1996, and the consequence is that payment of the deposit on 13 December 1996 was within the period of 21 days. The applicant's cross-appeal will therefore be allowed."

In giving their judgment, the EAT was referred to the second case to which we have made reference. It does not seem to me pertinent for the purposes of this appeal to refer further to the two previous decisions of the Employment Appeal Tribunal which were to like effect.

The argument presented by Mr Pullen on behalf of the Respondent is to the effect that if one looks at the EAT rules, it is clear that the intentions of those rules is that the date from which time started to run was the date when the decision was promulgated, which is the date when it was sent to the parties. That is a date which is contemplated by Rule 10(5) where it says:

"The clerk shall transmit the documents referred to in paragraphs (2) and (3) to the Secretary who shall enter them in the Register and shall send a copy of the entry to each of the parties and where the proceedings were referred to the tribunal by a court, to that court."

He pointed out that the Industrial Tribunals are not courts of record and therefore the sending and promulgating of the decision is the equivalent date to the date when a court of records seals its order which is the date from which time to appeal starts to run. Accordingly, he says, that the date when the document was sent to the parties is the equivalent of the sealed date or the date of the sealing of a High Court Order from which time starts to run, see Order 59, Rule 4, sub-rule 1, and secondly he says, in any event, that section 7 of the Interpretations Act 1978 only applies to provisions in rules or statutes which are authorising or requiring documents to be served by post. It does not apply, he says, to the determination of the date from which time must be calculated for the purposes of the 42 day period.

He draws attention to the fact that the Employment Appeal Tribunal's own rules, Rule 35 reflect accurately the provisions of section 7 of the Interpretation Act itself, that is where a party serves a document on the EAT by post, then it is deemed to have been delivered in the normal course of post in the absence of evidence to the contrary. So that Rule 3(2), is not a service provision, Rule 35 is the service provision to which Section 7 of the Interpretation Act would apply.

It seems to me that, both submissions made by Mr Pullen are correct. As I see the position, Section 7 of the Interpretation Act is concerned and concerned only with statutory provisions authorising or acquiring the service of documents by post. The section makes reference to service by post, and the opening words of Section 7 are "Where an act authorises or requires any document to be served by post".

Accordingly, I respectfully disagree with the passage in the judgment of the Employment Appeal Tribunal to which I have referred. It seems to me that there is no support for the Judge considering that Section 7 applies to the calculation of the date from which time begins to run. As he said in the passage to which we have referred, the natural meaning of Section 7 is that it is dealing with service by a particular method, namely, posting and deeming documents to have been served where that method of service is adopted. That is the equivalent of Rule 35. It seems to me in those circumstances, that there is no room for the application of Section 7 to the interpretation of Rule 3(2). Rule 3(2) is clear. It is the date when the document was sent to the Appellant that time starts to run. Thus if Section 7 were capable of applying to Rule 3(2), it seems to me plain that a contrary intention does appear from the structure of the rules. That is sufficient to dispose of the appeal. But it does seem to me, furthermore, that it is highly likely that the intention of Parliament, when providing for our rules and the intention of the Lord Chancellor when making them, was to equate the date of sending of the documents which was contemporaneous with the date of promulgation as equivalent to the date when a High Court Order is sealed. It seems to me in the circumstances that there is a contrary intention shown by the rules.

Accordingly, I am satisfied that this Notice of Appeal was out of time and that being so, I uphold the decision of the Registrar and dismiss the appeal from it.

The parties canvassed the possibility that either of them might wish to seek leave to appeal, but it was left on the basis as I understand it, that they would wish to reflect on the terms of the judgment before asking for leave to appeal, I can indicate to them that having looked at this matter with care, it seems to me that the answer to the question which was an important one, is clear and obvious and I shall need some persuading that this is a proper case to go further.