Piper v Sefton Borough Council [1995] UKEAT 893_95_0112

EAT
Piper v Sefton Borough Council
[1995] UKEAT 893_95_0112 · 1995-12-01
MR JUSTICE MUMMERY (PRESIDENT) : On 19th September 1995 the Registrar refused an application for an extension of time for appealing. The application was made on behalf of Ms Piper. She wishes to appeal against the decision of the Industrial Tribunal held at Liverpool on 11th April 1995. In the extended reasons sent to the parties on 5th June 1995 the Tribunal explained the reasons for their unanimous decision that they had no jurisdiction to determine Ms Piper's complaint. At the relevant date she did not work under an employment contract, as defined by Section 78(1) of the Race Relations Act 1976 . The Tribunal only had jurisdiction under Section 54 in cases of racial discrimination in the employment field.The time for appealing against the decision ran from the date stamped on the decision, the date when the decision was sent to the parties. The time for instituting an appeal, is under Rule 3 of the Employment Appeal Tribunal Rules 1993 , 42 days from that date.The Notice of Appeal received by the Employment Appeal Tribunal is dated 21st June 1995, which is within the 42 days, but it was not received by the Employment Appeal Tribunal until 28th July 1995, that is 11 days outside the 42 days limit.An application was therefore made to the Registrar to extend the time. The basis of the application is set out in a letter sent by Mr John Halson, a solicitor with the Liverpool Law Centre, who are representing Ms Piper. In that letter he says:
"It was in fact sent out by covering letter of the 21st June, a copy of which I enclose.
Please therefore find Notice of Appeal enclosed and in the circumstances I would be grateful if you could extend the time limit for the Appeal to enable this Appeal to be considered.I cannot say what the reason for you not receiving the original Notice of Appeal was, as it was sent out on 21st of June 1995.I only discovered that you had not received it when I realised no acknowledgement had been received and I telephoned today.I did notify the Respondents [ the Sefton Borough Council ] on the 21st of June that we were submitting an Appeal."The position of the Sefton Borough Council, on the application to the Registrar, was that they were neutral. They confirmed that they were in fact notified on 21st June 1995 that an appeal was being submitted by Ms Piper.The Registrar considered the representations in the correspondence and refused the extension.An appeal was brought against that by a letter of 3rd October 1995, in which Mr Halson said:
"I note that the application has been refused and I would be grateful if you could make arrangements for this refusal to be appealed to a Judge of the employment appeal tribunal."
That appeal is out of time, but no objection has been taken to that.It is common ground that the questions on this appeal are what is the explanation for the appeal being served out of time, whether that explanation constitutes a good excuse, and whether, in all the circumstances, the Tribunal is justified in taking the exceptional step of extending the time.On the appeal Miss Monaghan represents Ms Piper, and Mr Mackey the Council. Miss Monaghan made a preliminary submission that in fact the appeal had been served in time, and so an extension was not required. The basis of this application was Rule 35(3) of the Employment Appeal Tribunals Rules 1993 that provides:
"(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 post."
I was referred to Section 7 of the Interpretation Act 1978 which deals with references to service by post and says:
"Where an act authorises or requires any document to be served by post, then unless the contra-intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."
I was finally referred to the Order 65 of the Rules of the Supreme Court . Order 65 deals with how ordinary service of documents is effected. I was referred to the notes on page 1191 of the Supreme Court Practice at Notes 65/5/5 under the heading `Service by Post by 1st Class or 2nd Class Mail', where it says:
"In all cases in which any document is served by ordinary post, the date on which the document will be deemed to have been served would depend on whether the posting was made by 1st class mail or by 2nd class mail. [ It is then said ] To avoid uncertainty as to the date of service subject to proof of the contrary, it will be taken that delivery in the ordinary course of post for the purposes of the Interpretation Act s.7 is effected: (a) in the case of 1st class mail on the second working day after posting; and (b) in the case of 2nd class mail on the fourth working day after posting."

(Working days are Monday to Friday, but exclude any Bank Holidays.)

On the basis of those provisions Miss Monaghan referred to an affidavit sworn by Mr Halson of the Liverpool 8 Law Centre on 28th November 1995. I am asked to look at an affidavit that was not before the Registrar, but there can be no objection to that and Mr Mackey did not raise one.He explains that he is the solicitor acting for Ms Jean Piper in the appeal and that he represented her at the preliminary hearing before the Liverpool Industrial Tribunal on 11th April 1995 to determine the question of whether her position as a Foster Carer with the Sefton Borough Council could be classed as employment within the definition of Section 78(1) of the Race Relations Act 1976 . He refers to the decision and to his belief that there are good grounds for appeal against that decision. On that point I have been referred to another decision of a different Industrial Tribunal, the case of Mrs Amos-Abanyie v Bradford Metropolitan District Council & Others , a decision sent to the parties on 2nd August 1993. That was to the effect that the unanimous decision of the Tribunal was that the applicant in that case, a Foster Carer, was employed by the respondent council within the meaning of Section 78(1). There would seem, as Miss Monaghan points out, to be a conflict of view at the Industrial Tribunal level. There is no reason to doubt Mr Halson's submission and belief that there are good grounds for launching an appeal. He drafted the Notice of Appeal on Ms Piper's instructions, signed it, ready to be sent out on 21st June 1995. He says:
"4. I did not actually put the Notice of Appeal and covering letter into its envelope, nor did I deliver it to the Post Office, that being the job of other office staff. I did not give any instructions for the letter to be sent out by Recorded Delivery. All our mail normally sent out by first class post."
He refers to the notification to the Council, which has been confirmed by Mr Mackey. He has not subsequently found the original Notice of Appeal and covering letter and believes that it must have been lost in the post. He was away on holiday from 23rd June 1995 for three weeks. He did not return until Monday, 17th July 1995. He then read the post that had come into the office while he was away, and realised that he had not received an acknowledgement from the Employment Appeal Tribunal. He telephoned the Employment Appeal Tribunal. He discovered that they had no record of receiving the Notice of Appeal. Mr Halson therefore resubmitted the Notice of Appeal using a copy of the Notice of Appeal that he had retained on file. He prepared a covering letter of 18th July 1995. Unfortunately, his secretary was away from work from Monday, 24th July and during that week, she telephoned him to inform him that the letter and the Notice of Appeal had not been sent out. He found the file and ensured that they were sent. He subsequently received a notice from the Employment Appeal Tribunal saying that the Notice of Appeal had been served out of time.On the basis of that evidence, I am unable to accede to Miss Monaghan's submission that this Notice of Appeal was served in time. All the provisions that she relies on in the Employment Appeal Tribunal Rules 1993 , in Section 7 of the Interpretation Act 1978 and in Order 65 of the Rules of the Supreme Court , pre-suppose that evidence exists that the document in question has in fact been posted. Evidence to that effect would normally be given either by the person who was responsible for posting it, and/or by reference to some record, such as post book, which recorded at the time that a document or letter containing a document had been posted. In the circumstances of this case, there is no evidence from Mr Halson or anybody else that the letter had in fact been posted to the Employment Appeal Tribunal. The most that Miss Monaghan can rely on is that an inference should be made from the matter stated in Mr Halson's affidavit that, on the balance of probabilities, it was posted in accordance with the normal practice of the Law Centre. In my judgment, the evidence is not strong enough, either to prove posting or for me to make an inference that it was posted by anyone on any particular date. It may be that Mr Halson was acting reasonably in thinking that it had been posted at the time when he dated the Notice of Appeal, and therefore had been served in time. But that reasonable belief on his part would not be enough to prove that posting has actually taken place. It is not sufficient simply to say he relied on the postal service and postal service is allowed by the rules, when there is no proof that there has actually been a posting into the postal service.The question returns to this, has the explanation given by Mr Halson satisfied this Tribunal that it is a good excuse. In my judgment, it is not a good excuse. Unfortunately, this is another of those cases where there has been an oversight. It is true that Mr Halson prepared the Notice of Appeal on his client's instructions. It is true, in my view, that he had good grounds, and that he prepared it promptly. As far as he was concerned it was ready to be served on 21st June 1995. The oversight in this case is the failure of his office to check, while he was away on holiday, that the service had actually taken place. Prudent practice requires that. if no acknowledgement is received within a reasonable time of the posting taking place, the position should be checked with the Employment Appeal Tribunal. If that had been done in time, there would have been sufficient time to serve a fresh Notice of Appeal. The fact is that Mr Halson was away for three weeks. It seems from his own affidavit that his cases and his post were not seen to in his absence. He says in paragraph 8 that it was on his return that he read the post that had come into the office while he was away. It is normal for solicitors and others in charge of cases to make arrangements for other people, during their absence, to make sure that things are done, particularly in relation to time limits.In my judgment, the explanation given by Mr Halson is not such as to amount to a good excuse for the failure to serve this Notice of Appeal in time.The only other point that has been made, at some length by Miss Monaghan, is that there is here an exceptional circumstance which would justify the granting of an extension. That is the element of public interest in seeing a resolution of the question, at this level of decision, on the status of Foster Carers. She says that this is important in view of the conflicting decision of the Liverpool Tribunal in this case, and the Leeds Tribunal in the case of Mrs Amos-Abanyie v Bradford District Council . She has referred me to the reasoning in the Leeds Industrial Tribunal decision, to provisions in Section 23 of the Children Act 1989 and to other provisions in the Foster Placement Children Regulations 1991 , in particular in the Regulation 3 dealing with the approval of foster parents, and in Schedule 2, which deals with matters and obligations in Foster Care Agreements.I am satisfied that it is a matter of concern to those who are Foster Carers and to local authorities as to whether the Foster Carers enjoy employment status such as to entitle them to protection under Race Relations Act 1976 . But I am not satisfied that this case is of such interest to the public that I should take the exceptional step of granting an extension of time. The matter can be brought here in connection with another decision that may be reached by another tribunal. Then an appeal can be brought either by the Foster Carer or by the local authority and others concerned, depending on who has lost the case in the Industrial Tribunal. So, despite Miss Monaghan's well presented and cogently argued case, I am not convinced that the Registrar was wrong in her refusal to grant an extension of time. In fact I am of the view that she was right. There was no good excuse for this being out of time. It is one of those unfortunate cases arising out of an oversight. It is difficult to blame anybody. This case does not have such exceptional features that we should say that an appeal can be brought 11 days after the time has expired for serving it.For all those reasons, the appeal is dismissed.