United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS E BURNHAM (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J HICKS QC: We have first to deal with an application for leave to adduce additional evidence, the additional evidence being two letters from the Royal Mail obtained after the hearing before the Employment Tribunal and as to the second, and vital, letter after the review decision.

1. The first letter, of 15 March 1999, acknowledges an enquiry from Mrs Lancaster, the wife of the Appellant, as to the late delivery of the application which he had posted by Special Delivery on 23 December 1998, and promises a further letter on completion of enquiry. That further letter did not arrive until a reminder and is dated 27 April and says, to summarise, that there was no reason or excuse why Mr Lancaster's application should not have been delivered on 24 December 1998 and Royal Mail therefore apologises and effectively accepts full blame for that failure.
2. Applying the usual tests as to whether additional evidence should be admitted at the appeal stage, there is first the question whether that was evidence which could reasonably have been obtained before the hearing. Mr Lancaster's answer to that, ably presented on his behalf by Ms Burnham, is that neither in the Notice of Appearance nor in any other way had either the Respondent employer or the Tribunal indicated to him before the hearing that any point about late application was going to be taken, so he had naturally not been in touch with Royal Mail or taken any other steps to deal with that point. He turned up expecting to be attending a substantive hearing of his application.
3. It rather appears, although Mr Lancaster who conducted his own application cannot remember, that it was the Tribunal itself and not the Respondent employer which took the point at the hearing, because the Tribunal says in the second line of its Extended Reasons:

"… at the commencement of the hearing the Tribunal identified the jurisdictional point of whether the application had been presented within the period of three months …"

4. In our view, therefore, the requirement that this was evidence which it was not reasonably practicable for the Appellant to have obtained before the hearing is met. That it is inherently credible, the second criterion, is manifestly also met.
5. That it might have had a significant effect on the outcome also seems to us to be clear, because although the Tribunal in its reasons accepted and understood that Mr Lancaster had posted the application by Special Delivery there is no discussion, because there had been no canvassing of the question, precisely what was meant by Special Delivery - what sort of guarantee Royal Mail gave - nor any consideration of whether there was any explanation other than complete and inexcusable failure on the part of Royal Mail for the lateness of the delivery which, in the event, took place.
6. We therefore consider that that test also is met and that we should accede to this application for the admission of those two letters as additional evidence. That being so, the question on the appeal is whether the Tribunal erred in law in their finding that it was reasonably practicable for the application to have been delivered in time.
7. Of course, if the words "reasonably practicable" were construed literally and strictly, this appeal, and in fact the vast majority of attempts to extend time on the ground of reasonable practicability, would fail because, of course, Mr Lancaster could have taken the application round by hand or he could have posted it earlier.
8. The Tribunal also give the example of a courier, but actually a courier is no more of a guarantee than Special Delivery, because couriers can get knocked over at road junctions and land up in hospital.
9. However the authorities - and although we do not on preliminary hearings look at authorities in detail we have in mind that they are quite clear on this point - the trend of the authorities is that the test of "reasonable practicability" is not applied in such cases in that literal sense, and a familiar ground of success on the part of an applicant is to have posted an application in good time before the closing date.
10. Mr Lancaster did not post it in good time before the closing date, especially given the difficulties of Christmas delivery to which the Tribunal referred, but it is plainly analogous to posting in good time that one takes special steps, as he did, to obtain from the Royal Mail an assurance that delivery will take place the very next day, in this case 24 December, five days before his time limit expired. That being so, we consider that the appeal should go forward for a full hearing, our observations on the merits, of course, being directed purely to the question whether his appeal is arguable and not prejudging the question whether it will succeed.