As most of you will know the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 allow the recipient of an enforcement notice to lodge a note of appeal with the Employment Tribunal within 21 days of service of the notice.  The Tribunal may extend that time limit if it considers that it was not “reasonably practicable” for the appeal to be brought within that time.

In a recent case Covent Garden Market Authority (CGMA) were served with ten improvement notices related to transport management.  This followed an investigation into a series of accidents at their premises in which pedestrians were injured.

On 3 August 2010 the local authority invited CGMA to attend an interview under the Police and Criminal Evidence Act (PACE).  The interview was to take place, by agreement, on 11 October 2010.

On 14 September 2010 the local authority served the improvement notices.  The time limit for appealing against the notices expired on 5 October 2010.  Notices of appeal were lodged on 15 October 2010.

A hearing took place before an Employment Judge who held that the appeals should be allowed.  Her reasons stated:

“Reasonably practicable means reasonably capable of being done.  It is clear that CGMA were capable of submitting the appeal within the time limit provided by Rule 4.  The difficulty I have is whether the claimant’s concern that they were ignorant of relevant facts and their decision to give precedence to matters that might arise in the criminal proceedings is sufficient to render it not reasonably practicable to submit the appeals in time.

I take a common-sense view.  The fact that the improvement notices could be used in evidence in criminal proceedings was a reason for CGMA to proceed with some caution.  I find that the fact that there was a pending PACE interview means that it was not reasonably practicable for CGMA to issue in time.  I take into account that CGMA did not delay unduly after the conclusion of the interview and the fact that the appeals were presented within a short period after the interview.”

The local authority appealed to the High Court.

The High Court decided that the decision as to whether or not it was reasonably practicable for a claimant to lodge a Notice of Appeal within the 21 day time limit was predominantly a question of fact for the Employment Judge.  However, the term “reasonably practicable” does not mean “reasonably capable physically of being done” or “reasonable” to be done.  Instead the Employment Judge must ask colloquially “was it reasonably feasible to present the complaint to the tribunal within the relevant 21 day period?”

The High Court took into account the following facts:

  • It was not accepted that appealing against the improvement notices could adversely affect CGMA resisting criminal proceedings.  Rather, issuing the appeals was more likely to be consistent with contesting the criminal proceedings.
  • CGMA had legal advice and were well aware of the time limits.
  • It was not argued that CGMA lacked the resources to lodge the appeals on time.
  • CGMA chose to give priority to the PACE interview to see if relevant material could be learned from it.
  • No evidence was presented to suggest that such relevant material was gained.
  • The purpose of the PACE meeting was clearly set out in correspondence as being to allow the local authority to ask questions about a specific incident.  It was not to be a general discussion about improvement notices.

The High Court also commented that lack of prejudice to a respondent in respect of a claim caused by delay is not to be taken into account in determining whether or not it was reasonably practicable to present a claim on time.  The legislation setting the time limit is strictly worded and whilst it is noted to impose a harsh regime it does so for the policy reason that parties should know where they stand within a limited time of any dispute arising.

For all of the above reasons the High Court determined that the Employment Judge’s decision to allow the appeals to proceed though lodged late was perverse (i.e. that she made a decision that no Employment Judge properly directing herself on the law could reach) and was set aside with the consequence that the appeals against the Improvement Notices could not go ahead.

For employers or the self employed who have been served with an enforcement notice that they are minded to appeal, the moral of the story is that you must seek legal advice about the appeal well within the 21 day limit regardless of what other investigations or proceedings may be going on.

For local authorities and others empowered to serve enforcement notices it is imperative that you seek legal advice immediately upon receipt of the intention to lodge an appeal late, so that you can consider whether or not you are able to take a robust stance to prevent the appeal going ahead such as in this case.