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Lydia Banerjee: Time limits for appeals to the EAT and the danger of the ET judgment website

Lydia Banerjee considers the Court of Appeal decision in Rana v London Borough of Ealing and ors [2018] EWCA Civ 2017

In Rana v London Borough of Ealing and ors [2018] EWCA Civ 2017 the Court of Appeal considered two appeals raising the question of when a decision is ‘sent to the parties’.  This question is significant as it forms the basis for calculating the time limit for appealing from a decision of an Employment Tribunal to the Employment Appeal Tribunal.  The relevant part of the rules considered by the Court of Appeal is rule 3(3) and in particular the “The period within which an appeal to the Appeal Tribunal may be instituted is … 42 days from the date on which the written reasons were sent to the parties.

Under Rule 37 the time limit can be extended.  The principles for extending time were considered by the Court of Appeal earlier in the year in Green v Mears Ltd [2018] EWCA Civ 731 and were summarised by Underhill LJ in Rana as “Very broadly, if there is no good explanation for the failure to meet the deadline for appealing, it is exceptional for the discretion to extend time to be exercised; and a strict view is taken of what constitutes a good explanation or exceptional circumstances”.

The facts of the first appeal in Rana were – the Tribunal mistakenly sent the Judgment to the Claimant’s former solicitors rather than to the Claimant.  The Respondent picked this up and emailed the Tribunal, the Claimant and the former solicitors pointing out the error and providing the Claimant’s email address.  The Claimant thereafter requested a copy of the Judgment from the Tribunal no fewer than five times before eventually receiving a copy about five weeks later.

The appeal was submitted late and no extension of time was granted.  Judge Eady found that the Claimant had had all the information which she needed when the Judgment was eventually received and that there was no good explanation for why the appeal had not been submitted earlier.

The Court of Appeal (McCombe LJ dissenting) found that a judgement is ‘sent to the parties’ when it is promulgated.  This provides certainty of a single date regardless of when or even if it is received by the parties.  Three scenarios were considered where potential injustice could arise:

1)      Where judgment is sent to the wrong person and the wrong address;
2)      Where judgment is sent to the right person at the wrong address; and
3)      Where judgment is never received despite being apparently sent to the correct person at the correct address.

In each of these scenarios having the judgment ‘sent to the parties’ when promulgated creates an unfairness to an individual who does not in fact receive it until some time later if at all through no fault of their own.  The majority of the Court of Appeal was satisfied that any unfairness is adequately addressed by the Rule 37 discretion.  Further, they provided guidance on how that discretion should be exercised in such cases:

1)      Cases where the Tribunal have made a mistake are inherently different from the general cases seeking an extension of time under the rule 37 discretion.
2)      The discretion should be exercised so as to allow the party the same period from the date that they are eventually sent a copy of the judgment from the Tribunal or some other source or from any earlier date that it would have been           sent if they had taken reasonable steps to obtain it.
3)      If the victim of a mis-sending is put on notice of what has happened then it will be incumbent on the victim to take reasonable steps promptly to obtain a copy.  Failure to do so may lead to a refusal to grant an extension.
4)      There may be cases where even absent notice so much time has passed since the end of the hearing that a reasonable person would make enquiries of the tribunal to find out what has happened.
5)      The victim of a mis-sending must provide the EAT with the evidence to justify the exercise of discretion in his or her favour.  It will be necessary to state: (i) that the judgment was mis-sent; (ii) how the mis-sending occurred; (iii) that it           was not received when it should have been; (iv) the circumstances in which it was eventually received; and, (v) any steps taken to obtain it in the meantime.

What was not discussed in the case was the impact of the publication of Tribunal decisions on the Employment Tribunal website and whether a party would be expected to check the website to see whether a decision had been promulgated even though they were yet to receive a copy.  For represented parties such an argument may well be made and therefore there is perhaps some merit in firms employing a system for regularly checking the website to protect clients from a criticism that they (and their advisers) failed to take reasonable steps to obtain a copy of the judgment.  Following Underhill LJ’s comments summarised above this risk exists even if they are not on notice that there has been any mis-sending.

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