In this article we consider the recent decision of the Court of Appeal in Rana v London Borough of Ealing and Bonnie v DWP. That case looked at when Employment Appeal Tribunal (EAT) time limits start to run in a case where an Employment Tribunal (ET) sends its judgment to the wrong person or address.
Where an ET has given written reasons for its Judgment, an appeals must be presented to the EAT within 42 days of the written reasons being sent to the parties. This is obviously difficult for a party to comply with if, due to an administrative error, the Judgment has been sent to an incorrect address.
If an appeal is presented out of time the EAT has a discretion to allow the appeal to proceed if there are exceptional circumstances justifying such an approach.
In both of these cases, the ET had sent Judgments to the addresses of legal representatives who no longer represented the appellants. Both appellants' solicitors had notified the Tribunal that they were no longer represented and, therefore, both Judgments should have been sent to them directly. These errors resulted in subsequent delays in the Judgments being sent to the appellants and therefore led to them issuing appeals more than 42 days after the Judgments were originally sent out by the ET.
Ms Bonnie's appeal - facts
In Ms Bonnie's case, the judgment was sent not to her in person, but to her former legal representatives, who were no longer acting. She wrote to the ET five times and called the ET numerous times before she finally received a copy of the judgment from the ET.
As soon as she received a copy of the judgment, the Appellant telephoned the EAT to ask how to appeal, and, the same day, they emailed her a copy of the EAT Practice Direction and relevant rules, which told her she had 42 days from the date the Judgment was sent to the parties.
She took the 42 days as running from when the Judgment was sent to the correct address and was subsequently told by the EAT that her appeal was 39 days out of time. She then made an application for an extension, which was i dismissed by the EAT administration team.
Ms Rana's appeal - facts
Like Ms Bonnie, Ms Rana's copy of the ET's Judgment in her claim was sent not to her in person, but to her previous representatives.
Once she received a copy of the Judgment, she presented an appeal to the EAT. In her case, she did meet the 42-day deadline, but some mandatory documents were missing from the Notice of Appeal which were supplied four days out of time. Unfortunately, for Ms Rana, a Notice of Appeal is treated as being presented when all necessary documents have been sent to the EAT and her appeal was therefore out of time. She applied for an extension which again was dismissed by the EAT administrative team.
Both appellants appealed against the decisions not to extend time. The cases were heard together because they raised a common point of law regarding the calculation of the time limits for appealing an ET judgment. As explained above, time starts to run where the ET's Judgment and/or the written reasons are "sent to the parties". The questions on appeal were when the Judgments were actually "sent to the parties" for the purpose of the rule, and, if they were, what approach should be taken to extending time.
Employment Appeal Tribunal (EAT) decision
Their appeals were initially heard by the EAT but were unsuccessful at that level. Her Honour Judge Eady QC refused to extend the 42-day deadline to appeal the ET's decision. As a result of considering previous case law, Judge Eady adopted an objective view and concluded that a Judgment and written reasons should still considered to have been sent to a party even if they had been sent to an incorrect address. When it came to considering whether she should exercise discretion to extend time, she concluded that, whilst some extension may have been justified in these appellants cases, it was not appropriate to give them the full 42 days from when they received the Judgments. At that stage, they should have been aware that the date ran from when the Judgments were originally sent and should therefore have acted quicker.
Court of Appeal decision
The case was heard by three Court of Appeal Judges. They decided by a 2:1 majority verdict that the Judgment should be treated as being "sent to the parties" when it was originally sent out by the Tribunal notwithstanding the use of an incorrect address. However, in the circumstances it would be reasonable to extend time for presenting the appeals to the full 42 days from when the appellants had actually received a copy of the relevant Judgments.
Underhill LJ (who gave the leading judgment) considered how the words "sent to the parties" should have been interpreted by the EAT. He acknowledged that, as a matter of ordinary English language, it is difficult to describe a document as having been "sent to the parties" when it had been sent neither to the party himself, or herself nor to their nominated representative. However, he considered that it was clear that the wording of the EAT rules was intended to refer to a single date from which time would run. That would not be achieved if a Judgment could be deemed to be sent to two parties on different dates. He therefore considered that " sent to the parties" should be read as meaning "sent out" and therefore the appeals were out of time.
Whilst that might seem a harsh conclusion, he considered that a just outcome could be achieved by the appropriate use of the EAT's general discretion to extend time under rule 37. His conclusion was that where "the tribunal has made a mistake, as regards a matter of fundamental importance,…the guiding principle should be that the party affected by that mistake should not be put in a worse position than if it had done its job properly."
Accordingly, the EAT should have extended time so that both appellants had 42 days from when they received the ET Judgments to appeal and their cases would now be referred back to the EAT to decide whether they should proceed on their merits.
In reaching the above conclusion he contrasted the case with one in which a party requests an extension due to an error on his/her part. Such an application would usually be treated less leniently. He also emphasised that it would still be necessary for the appellants to demonstrate not only that the judgment was mis-sent (and, if this is not obvious, how the mis-sending occurred), but also to explain the circumstances in which it was eventually received and any steps taken to obtain it in the meantime.
Although all three judges agreed to allow the appeals and to grant the necessary extensions, the dissenting Judgment argued that both applications to appeal should be considered as having been made in time because the Judgments had not properly been "sent to the parties" and time could not run until they had been.
Whilst the conclusion on when time runs from may seem harsh, overall this decision is likely to be welcomed by parties who want to appeal an ET Judgment. The case demonstrates that the EAT should exercise its discretion to extend time to ensure appellants are not unfairly disadvantaged as a result of an ET error. This is particularly important in light of the current pressures faced by the ET system, which can lead to innocent mistakes being made.
However, parties should still take a cautious approach when there are delays in receiving a Judgment. The Court of Appeal was clearly influenced by the fact that both Ms Bonnie and Ms Rana had actively chased the ET to obtain copies of the Judgments on their cases. It is possible that the EAT could take a less generous approach to a party who has taken a more relaxed approach and not chased for a Judgment. Therefore, parties who are experiencing delays in receiving Judgments should make sure they can evidence or who are aware a Judgment may have been misdirected should ensure they have a clear audit trail of asking for a copy.