United Kingdom Employment Appeal Tribunal

APPEARANCES

UKEATPA/0013/08/JOJ

 

For the Appellant	MR M WEST (Representative) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB
For the 1st Respondent	MR R BELL (Solicitor) Messrs Kerwoods Solicitors 7 Church Road Redditch B97 4AD
For the 2nd & 3rd Respondents	MR P EDWARDS (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors No 1 Snow Hill Plaza St Chad's Queensway Birmingham B4 6JG
For the 4th Respondent	MR T WRAGG (Solicitor) Messrs Eversheds LLP Solicitors Cloth Hall Court Infirmary Street Leeds West Yorkshire LS1 2JB

APPEARANCES

UKEATPA/0179/08/LA

For the Appellant	MR S KENDRIDE (Manager of Sybersolve Solutions Ltd) Sybersolve Solutions Ltd 3rd Floor Threshold House of Lords Shepherds Bush Green London W12 8TX
For the Respondent	written representations


 


SUMMARY

PRACTICE AND PROCEDURE: Time for appealing

The law and practice on out of time appeals described in Muschett EAT were accepted to be correct. The application in Consignia v Sealy CA of the two-day postal rule in CPR6.7 to the Employment Tribunal's "not reasonably practicable" jurisdiction does not be extend to the 42-day time limit for a Notice of Appeal in the EAT. CPR6.7 is an irrebuttable deeming provision. Different considerations apply to first instance and appellate jurisdictions where EAT R35(3) applies. After hearing live evidence, a Notice of Appeal posted on day 40, arriving on day 43, and a Notice of Appeal arriving at the Employment Tribunal on day 39 and the EAT on day 54, were out of time and discretion would not be exercised.


 


HIS HONOUR JUDGE McMULLEN QC

1. These are two appeals from Decisions of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged. They raise common issues of law and practice in the handling of late Notices of Appeal at the EAT. I will refer to the respective parties as the Claimant and the Respondent.

The legislation

2. The relevant provisions of the legislation are not in dispute. The EAT Rules require a Notice of Appeal and all supporting documents, as prescribed by the Practice Direction, to be lodged within 42 days of the date the Employment Tribunal judgment was sent to the parties. The 2004 Practice Direction indicates what documents must be included in order for the Notice of Appeal to be validly lodged. The 2005 Practice Statement makes clear that these are prescriptive provisions and there is no special treatment of litigants in person, for example. The effect of the Rule is that the appeal and the whole of the appeal must be lodged by 4.00 pm on day 42 following the sending of the Employment Tribunal reasons to the parties.
3. The Registrar in each case directed herself by reference to the relevant authorities to which I will turn and to the exercise of her discretion. In each case, the Notice of Appeal was actually received by the EAT after the deadline. In the Bost case, it was one day late and in the Sybersolve case it was 16 days late.

The facts relating to Bost

4. This is an appeal from the reserved judgment of an Employment Tribunal sitting in Birmingham sent with reasons on 22 November 2007. The Chairman was Employment Judge Kearsley. The parties were all represented: Bost, the Appellant today, was represented by a consultant of Peninsula and today by Mr West. The Claimants were represented by solicitors, Mr Bell, in the case of the first Claimant; and Mr Edwards in respect of the second and third Claimants who did not appear below, appears today; and Mr Wragg for Excel, the second Respondent. Thus, five parties represented by four representatives.
5. The judgment was in favour of the Claimants and so of the transferor in a relevant transfer, Excel. The Notice of Appeal should have been lodged on 3 January 2008 and was lodged one day late.
6. I heard evidence on oath from Mr West, who had conduct of this case after the judgment, and he was cross-examined. For five weeks he did nothing. He was waiting to see if, following a discussion he had in a different case, a similar point was to be made on appeal by other parties and if so, whether there was anything to be gained from any such Notice of Appeal that might be forthcoming. There was silence and so on 27 December 2007 Mr West drafted a Notice of Appeal, with the approval in principle of his client.
7. The document should have left the post room at Peninsula on 28 December2007, a Friday, but Royal Mail, with whom a relationship exists for this purpose, did not fulfil its function and collect the mail. The problem was bought to the attention of Mr West on Monday, 31 December and he was then told that Royal Mail had taken the mail that day. He assured himself that the Notice of Appeal would reach the EAT within the deadline. He relied upon the presumption of assumed service deemed to take effect pursuant to CPR 6.7 two days later.
8. He did not consign the Notice of Appeal to any alternative method such as courier, fax, email, and he did not contact the EAT to inquire whether the Notice of Appeal had arrived on 2 or 3 January and took no other steps.
9. He was of the view that it was inappropriate to lodge his Notice of Appeal in its inchoate state rather than lodge something and amend it later. He acknowledged there were alternative methods available to him but he discounted all of those, as a matter of choice. Courier services often do not deliver when they should. The documents in this case ran to 100 pages and sending them by fax was not an acceptable method in his view.
10. He acknowledged that there was a difficulty in the post. He denied that there was any special effect of Christmas on the postal service and, indeed, any difficulties there may have been across the United Kingdom in relation to Christmas would have been resolved by the position after Christmas. He never got to the bottom of why the Royal Mail did not pick up on 28 December 2008. He was aware that Royal Mail's one-day delivery service is not guaranteed in the run-up to Christmas.
11. He told me he actually considered the two-day postal rule under CPR 6.7 which says this:

"A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table – "

For first class post, it is the second day after it was posted ie day 3. He also considered that he was entitled to rely on the assumption set out in EAT Rule 35(3):

"Every document served by post shall be assumed, in the absence of evidence to the contrary, to have been delivered in the normal course of the post."

The facts relating to Sybersolve

12. The second case, Sybersolve Solutions, is a judgment of Employment Judge Threlfell at Leicester, sent to the parties on 17 December 2007. The Claimant attended in person. The Respondent did not attend. At 9.52 am, a communication was received from Mr Kendrick who was intending to come to the Tribunal to give evidence and represent the Respondent, saying he had 'flu. Nevertheless, the hearing went ahead.
13. The Claimant's claims of £3,000 odd by way of wages, holiday pay and expenses were allowed and the Respondent appealed. The deadline for sending a Notice of Appeal was 28 January 2008. On 24 January 2008, a Notice of Appeal was submitted by postal tracker to Leicester Employment Tribunal, where this case originated. It was received on 25 January 2008 and a proper receipt was given on delivery by an officer of the Tribunal.
14. A phone call was made to see if it arrived, either on that day or the following working day, the 28th, but the Employment Tribunal was unable to link up the document with the case for an incorrect case number, by the transposition of two digits, was given. The representative of the Respondent (not Mr Kendrick this time) gave the number of the case as 1901483/2007 whereas the correct number is 1901438/2007.
15. That was a mistake by the Respondent and it was replicated to the EAT for that is the number which the EAT cited when chasing the Employment Tribunal and that explains why the Tribunal could not instantly give an answer in respect of the document.
16. The Notice of Appeal, as properly constituted, was lodged on 13 February 2008 and is 16 days out of time. Again the Registrar, having called for submissions, decided that the Notice of Appeal was presented out of time and she would not exercise her discretion to allow the Appeal to be registered for reasons which she gave following consideration of relevant authorities. Sybersolve appeals against her decision.

The legal principles

17. The legal principles in this case are, for the most part, not disputed as I have had submissions on the basis of a judgment I gave in four collected cases known as Muschett v London Borough of Hounslow UKEATPS/0281/07/. Since that date, the Court of Appeal decided Jurkowska v Hlmad Limited 2008 EWCA Civ 231 and there is also relevant the judgment of Underhill J in Mrs G L Waller v Bromsgrove District Council PA0019/07 handed down on 23 May 2007.
18. The principles which I set out in paragraph 5 of my judgment in Muschett are relied on by representatives of Respondents to the appeal in the Bost case and have not been disputed by Mr West. I will apply them here.
19. The issue in the Bost case is whether or not the Notice of Appeal was deemed to have been in time. This is based upon the postal rule which I have cited from CPR. The proposition of law is found in the judgment of the Court of Appeal in Consignia PLC v Sealy [2002] ICR 1193 where Brooke LJ at paragraph 31, gave guidance on the application of the CPR, following the Interpretation Act section 7, to Employment Tribunal cases which depend on the presentation of a claim within three months of the relevant event unless it was not reasonably practicable to do so. He said this:

"31. Until a simpler regime is introduced, the following guidance may be helpful:

(1) Section 111(2) of the Employment Rights Act 1996 speaks of 'presenting' a complaint to a tribunal. It is now well established that a complaint is 'presented' when it arrives at the Central Office of Employment Tribunals or an Office of the Tribunals ('the Office').

(2) If a complainant or his/her agent proves that it was impossible to present a complaint in this way before the end of the time prescribed by section 111(2)(a) – for example because the Office was found to be locked at a weekend and it did not have a letter-box – then it will be possible to argue that it was not reasonably practicable for the complaint to be presented within the prescribed period.

(3) If a complainant chooses to present a complaint by sending it by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post (see, by analogy, section 7 of the Interpretation Act 1978).

(4) If the letter is sent by first class post, it is now legitimate to adapt the approach contained in CPR 6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday, being days when post is not normally delivered).

(5) If the letter does not arrive at the time when it would be expected to arrive in the ordinary course of post, but is unexpectedly delayed, a tribunal may conclude that it was not reasonably practicable for the complaint to be presented within the prescribed period.

(6) If a form is date-stamped on a Monday by a Tribunal Office so as to be outside a three-month period which ends on the Saturday or Sunday, it will be open to a tribunal to find as a fact that it was posted by first-class post not later than the Thursday and arrived on the Saturday, alternatively to extend time as a matter of discretion if satisfied that the letter was posted by first class post not later than the Thursday.

(7) This regime does not allow for any unusual subjective expectation, whether based on inside knowledge of the postal system or on lay experience of what happens in practice, to the effect that a letter posted by first class post may arrive earlier than the second day (excluding Sundays etc: see (4) above) after it is posted. The 'normal and expected' result of posting a letter must be objectively, not subjectively, assessed and it is that the letter will arrive at its destination in the ordinary course of post. As the present case shows, a complainant knows that he/she is taking a risk if the complaint is posted by first class post on the day before the guillotine falls, and it would be absurd to hold that it was not reasonably practicable for it to be presented in time if it arrives in the ordinary course of post on the second day after it was posted. Nothing unexpected will have occurred. The post will have taken its usual course."

20. It is contended that the same Rule applies in the EAT. On behalf of the Respondents to the Bost appeal, it is contended that the Rule has no application in the EAT which has its own microclimate for the presentation of Appeals and disputes about them. Abundant are the expressions of opinion, all in the same direction about meeting the deadlines in the EAT. Six weeks is a generous time limit; the deadline is strict; all who come here know that; and they will be applied.
21. If there is a Rule based upon deemed service, it follows that the guideline decisions, UAE v Abdelghafar [1995] IRLR 243, Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111 and Woodward v Abbey National PLC [2005] IRLR 782, would need to be reconsidered. I reject Mr West's submission. Burton P said in Woodward that the requirement is for a complete document to be submitted and that is the case whether presented by post, by email by hand or by fax. It is right that there should be one test for all methods in which documents may be served on the EAT and that test is when received by the EAT.
22. Mummery J in UAE criticises representatives of Appellants who leave to the last minute the presentation of the Notice of Appeal for they are at the risk of vagaries in the post. If a postal rule were applicable in the EAT, both former Presidents would have mentioned it in those judgments. Rule 35(3) is expressly contrary to that for where it is the case that evidence can displace a presumption, there cannot be a deeming.
23. The authority cited in the text of Civil Procedure (the White Book) for deemed service under CPR 6.7 is Godwin v Swindon Borough Council [2001] EWCA 1428 where a document sent on a Thursday arrived on a Friday and the deemed day was the following Monday. It was held, in the interests of certainty, that what was vital was that deemed days should not be rebuttable by evidence of when a document actually arrived as that would give rise to more disputes.
24. So, the opposite is the case under EAT Rule 35 where evidence can displace any assumption. The position here is that the application of Consignia should not be accepted. It must be borne in mind that the Court of Appeal there was considering what occurred at first instance and, as I pointed out in Muschett, and as relied upon by the representatives in the Bost case, there is a difference in treatment of first instance and appeal time limits, for obvious reasons. A party has had a trial.
25. The treatment in Consignia was of the rule relating to what is "not reasonably practicable" and is a different form of words from that in the EAT. There is no escape clause based on reasonable practicability. There is no escape clause at all. All documents must be served by the deadline. If not, there may be an extension granted as an indulgence of the EAT in limited circumstances which have been set out in the authorities under Rule 39(2).

Conclusions

26. With respect to Mr West, I reject his primary argument that there is a deeming provision to rescue this case. It would apply if it were in force not only where the Notice of Appeal reached the EAT ten days after it was posted but also when it never arrived. That is not the rule in the EAT which is based upon strict compliance with all of the documentary provisions requiring to be served by the deadline of 42 days.
27. I therefore consider whether to exercise discretion in this case. In my judgment, this is not a case which calls out for it. I say at once that I have not considered, as I am entitled to do in certain circumstances, the merits of this case and will assume in the Appellant's favour that it cannot be said that it is hopeless. So, that matter does not become a factor and I will consider the other factors.
28. The first is that for five weeks, nothing was done and I do take seriously the submission made to me that Mr West was relying on a wing and a prayer for something to happen to bolster the Notice of Appeal. That is a full but unacceptable excuse for failing to lodge a Notice of Appeal for the first five weeks.
29. As I said in Muschett, this is not a "not reasonably practicable" jurisdiction but what we look for is an explanation for each of the relevant periods. I reject the explanation given to me by Mr West that he was waiting for something additional to put into any Notice of Appeal, he already having decided that there should be one, by way of what might be forthcoming in a different appeal. In a sense he is right in that EAT Practice Direction paras 9.1 and 9.17 requires that where parties know that two pending appeals may raise similar points, they should inform the Registrar, and certainly the hearing judge, so that the cases may be handled expeditiously. But that is not the same as holding off a Notice of Appeal.
30. It was suggested, in cross-examination, that he could have collaborated with the parties to seek an extension of time. With respect to them, I do not think it is open to the parties to agree on a jurisdiction issue such as this but it would be possible to have put in a formal Notice of Appeal challenging the finding by the Employment Tribunal, giving very rudimentary grounds and referring to another appeal. That was not done.
31. So, as I said in Muschett, a party who waits five weeks is less likely to be indulged than one who begins to think about it early on and then something tragic happens. In this case, when Mr West descended upon the entry of a Notice of Appeal, he did the proper thing. He prepared it. He could not be criticised for putting it in the post if he did so on 27 December but it was risky. I do not accept his insouciance about postal delays. Everybody knows that there are delays in the post at Christmas. The Royal Mail is at pains to tell us all to post early for Christmas because there are big backlogs and everyone knows that if they are meeting deadlines, they should allow extra time.
32. Indeed, in this case, Mr West knew that the Royal Mail had created a problem for him by failing to pick up the mail and by 31 December 2007, knowing there was a problem, he should, in addition, have adopted methods for safe delivery. I reject his assumption that a courier would not be satisfactory on a Monday to ensure delivery on a Thursday, albeit with a day's holiday in between. Nor do I accept his contention that fax was inappropriate because the document is long. Both of those were available.
33. He did not inquire whether the tracker system in the Royal Mail could, additionally, have been used. A prudent representative would have taken any one of those methods, in addition to having the letter taken by the Royal Mail as he was assured it had done. He did not check with the EAT on 2 or 3 January 2008 to see if it had arrived. If he had, alarm bells would have been ringing and he would have taken one of the additional steps I have described.
34. Instead he relied on the post and I do not accept that the delays in the postal service that occur in the run-up to Christmas have all been cleared in the week after Christmas, as indeed appeared to be exhibited in this very case. The mail took three working days when it should, under the CPR, take two, or often only one.
35. In my judgment, there are no grounds to exercise discretion to allow this appeal.
36. I now turn to the second appeal, Sybersolve. This is a simpler case. The judgment of the Employment Tribunal and reasons was accompanied by The Judgment booklet. The address of the EAT is made known. There is a website. It is simply not explicable why a person appealing against the judgment of the Employment Tribunal should address the appeal to that body. This was an error and, to his credit, Mr Kendrick acknowledges that. He also accepts that it was an error when contact was made with the Employment Tribunal by his officer not to give the correct number because if it had been, it might have been discovered that this was a Notice of Appeal and should be sent to the EAT.
37. The method of postal tracking was used effectively so that a letter posted on the 24th arrived on the 25^th, and was followed up by a phone call. Had that been done with the correct address and case number, this Appeal would have been in time.
38. As it happens, it was 16 days late and I see no reason why an organisation employing 300 people designed, by its very name, to make solutions and to solve problems should not understand the correct address for lodging appeals of the Employment Appeal Tribunal is the Employment Appeal Tribunal.
39. So, while I thank Mr Kendrick for his evidence to me, this appeal is out of time and I see, again, no reason why I should exercise my discretion to allow it to go forward.