In the Employment Tribunals, if the reasons are sent to the wrong person, does time for lodging an appeal still run?

“Yes”, said the Court of Appeal in Rana v (1) London Borough of Ealing (2) Stephen Antoine [2018] EWCA Civ 2074.

In Rana (which is two joined appeals – “Rana” and “Bonnie”) the appellants appealed against decisions of HHJ Eady QC in the Employment Appeal Tribunal. She had refused permission to extend time for lodging an appeal against a decision of the ET. Under the relevant rules, time runs from when the ET’s judgment and/or the written reasons are “sent to the parties”. But, in the cases in question, the reasons had been sent to the wrong person. The question was whether they were nonetheless “sent to the parties”. The critical issue, thought the EAT, was “sending”; the reasons had been “sent”, and that was enough to fix the date, with the result that the appeals were substantially out of time.

You can see how that is an unhappy result. It gives the result that it simply doesn’t matter whether the reasons are sent out to anything approaching the correct parties. If the reasons are sent out to an address in Lapland, where the Respondent and Appellant both live in South Wales, then that would be enough to start time running on the appeals.

Despite that issue, Underhill LJ in Rana thought that (para 36):

“. . . there is an obvious practical advantage in having a single, contemporaneously recorded, date from which time for appealing runs for both parties, so that everyone knows where they stand from the moment that the judgment is promulgated; and I think it very likely that that is what the rule-maker intended.” 

The obvious risk is that a party would end up being out of time to appeal a decision of which they had not been formally informed. To that, Underhill LJ thought that the problem could be fixed by appropriate use of the EATs discretion to extend time. The relevant principles are set out at para 42-45 of the judgment. In summary:

  • The guiding principle should be that the party affected by the Tribunal’s mistake (as regards a matter of fundamental importance) should not be put in a worse position than if it had done its job properly.
  • But, if a victim receives a copy of the judgment first, or instead, from the other party, rather than from the Tribunal, they will be in substantially the same position as if the judgment had been properly sent by the tribunal – subject to some caveats. If the covering letter is missing, then the victim will not have been given information on how to appeal. 
  • Further, if the victim is somehow on notice of what has happened (for instance, the victim becomes aware that the other side has received a copy of the judgment), it is incumbent on them to take reasonable steps promptly to obtain a copy – and if they fail to do so then it would not be right for an extension to be granted which would put them in a better position than had they acted with reasonable despatch.

So in Bonnie, Underhill LJ thought that time had started to run, but that the EAT should have exercised its discretion to allow the Appellant an extension to the date that the appeal was filed, largely because she had written “promptly and persistently” to the tribunal to ask for the judgment. The appellant in Rana received a similar treatment: Underhill LJ said that the EAT should have extended time.

McCombe LJ agreed with the result but disagreed with the reasoning. He thought that the words requiring the judgment and written reasons to be “sent to the parties” were clear. They were not satisfied by sending the judgment and reasons to only one of the parties. On a plain language view, the appeals should be allowed.

Bean LJ agreed with the result but adopted the reasoning of Underhill LJ. He noted that the literal construction accepted by McCombe LJ had “the attraction of clarity and simplicity, and of conforming to the natural meaning of the words . . . [but was not] the result which the draftsman . . . was seeking to achieve”.

A moral, perhaps, is that if you are awaiting judgment, it is worth keeping in touch with the other side – and perhaps checking with the Tribunal office, if appropriate.