MR S AZIZ-MIR v SAINSBURY’S SUPERMARKET PLC [2006] UKEAT 0537_06_1512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0537_06_1512Case No Appeal No. UKEAT/PA/0537/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S AZIZ-MIRAPPELLANTSAINSBURY’S SUPERMARKET PLCRESPONDENT
Before
Mr Justice BurtonDate 15 December 2006
[1]APPEARANCES For the Appellant MS M BAMIEH (Representative) SUMMARY Practice and Procedure – Time for appealing The Employment Tribunal, instead of issuing a correction in respect of one error in its Judgment, withdrew the Reasons in their entirety and reissued them. Time ran in those circumstances from the fresh promulgation, or at least the Appellant (otherwise one day out of time) was entitled so to conclude. Urgent recommendation to ET Chairman, when making a correction, not to reissue the whole Judgment but to issue the relevant page(s) corrected, sensibly making clear that the original promulgation date still stands. If the 'correction' is so substantial as to merit withdrawal of the original Reasons, then it may amount to a Review under Rule 34(5). THE HONOURABLE MR JUSTICE BURTON This is an appeal against the refusal by the Registrar of an extension of time and/or a declaration that the appeal was out of time, in relation to a proposed appeal by the Appellant, Mr Aziz-Mir, against a decision by the Employment Tribunal at Leeds, which dismissed his claims against Sainsbury's Supermarket, after a hearing lasting 12 days in the Leeds Employment Tribunal. The Judgment was promulgated on 23 March 2006 in a very detailed Judgment of 73 paragraphs, which I have not considered at all on this appeal, because the merits or substance of the appeal, or any possibility of challenge to that detailed Judgment, has not been before me.[2]On the face of that Judgment and its promulgation, time ran from 23 March and expired on 4 May 2006. The Notice of Appeal was lodged with this Appeal Tribunal on 5 May 2006, a day out of time. There were some efforts to lodge the notice by fax during the afternoon of 4 May 2006, but that is of no relevance to this appeal and could not have availed the Appellant of any sympathy from this Appeal Tribunal or of any exception to the very strict rules there are about getting appeals in in time. The facts were almost identical in the decision of this Appeal Tribunal in Woodward [2005] IRLR 782 , in which it was re-emphasised by this Appeal Tribunal that the fact that there may be difficulties of postage at the last minute, or of traffic problems getting to the Appeal Tribunal at the last minute, or of communication by email or fax at the last minute, is no excuse for not having got in an appeal within the six week time limit. Six weeks is a lengthy period and there should be allowance for the possibility that faxes may not work at one end or another and that does not justify any extension, unless there is an explanation as to why the notice could not be served at any time during the previous six week period.[3]However, the basis of this appeal is not by reference to the desperate attempts to get the fax through on the last day of the six week period. The appeal arises in this way. There was a correction to the Judgment on 6 April 2006. The nature of that correction was an extremely small one and, perhaps, a relatively minor one. The need for the change came about because the original Judgement as promulgated was headed up as being in cases number 1802212/05 and 1800466/06, which latter is another then-pending Employment Tribunal application which was being pursued by the Appellant, and about which there was some discussion at the Employment Tribunal hearing 1802212/05 the Judgment was recited as being a Judgment in both, when it was not.[4]There was immediate correspondence by the Appellant with the Employment Tribunal, as explained in a letter which was written to the Registrar by the Appellant in support of his appeal to the Registrar against ruling his appeal out of time. He said this:
"I received the original Judgment over the weekend on 25 March. I studied the document for a few days and realised that the ET had passed judgment on two separate claims in one Judgment. The reason for there being two separate claims is that the Chair of the Tribunal would not allow me to present evidence of my pleaded case and, as such, informed me I would have to lodge a separate claim in respect of those matters… Therefore I was very bewildered and upset as to how and why the Chair had passed judgment on both cases. The fact the Judgment had been passed on both cases obviously affected the appeal in that I now had to appeal judgment in two cases, on one of which there had been no evidence allowed… After some advice I rang the Leeds ET office on 30 March 2006 and enquired as to whether or not there had been a mistake. The ET office assured me there had been no mistake and that there had been a hearing on the second claim."
And then he recounts further discussion, and the reiteration by the clerk, according to him, that the Judgment had been passed on both claims. The clerk at the Employment Tribunal is then recorded by the Appellant as suggesting that he write to ask for clarification of whatever points he wished.[5]He did write to the Employment Tribunal on 30 March 2006, the same day as the telephone conversation, and he referred to that telephone conversation. He referred to what Mr Whelan, who was obviously the clerk who had handled the call, had said to him,recording that Mr Whelan had said that the Chairman had decided on both, and he wished the position to be confirmed.[6]It appears that he was then told that the Judgment would be corrected, and it was. He had therefore been, perfectly understandably, right all along. A correction was then issued on 6 April 2006, under the following certificate of correction signed by the Chairman:
"Under the provisions of Rule 37(1) of the Employment Tribunal… Regulations 2004 I hereby correct the clerical mistake in the decision hearings sent to the parties on 23 March 2006 by deleting the reasons thereto and substituting [therefor] the reasons attached hereto."
There was attached to that certificate the entirety of the old Judgment, but this time with only one case number recorded in the top left hand corner rather than two.[7]The Appellant says that he telephoned the Employment Appeal Tribunal on 3 May 2006, because he was concerned about the time limit running out if the time ran from the original appeal, although he believed that it was, at any rate, possible that the time ran from the receipt of the correction on 6 April. And, although there is no note on the Employment Appeal Tribunal's file as to any such conversation, I have no reason to doubt him when he says that he was told by someone that he should go for the earlier date, and he did. But, as I have earlier described, he was unsuccessful in his last minute efforts with the fax machine. He sought to explain those failed attempts to fax in a covering letter sent to the Employment Appeal Tribunal on the following day, but, as I have indicated, those failures which he described, attaching a sheet showing attempts to send the fax from his fax machine, would not have assisted him, in the light of Woodward, to obtain an extension.[8]It seems that there was some communication by the associate in charge of the case at the Employment Appeal Tribunal with the Employment Tribunal to seek to clarify the position from his point of view. A letter was sent by the associate to the Tribunal dated 9 May, indicating that a potential appeal had been refused and asking for the Tribunal's early confirmation as to whether the final promulgation date was at 23 March, when the decision was originally registered, or 6 April, when the certificate for correction was issued. That only indicates that the associate was unclear and was looking for some method of clarification. The reply came from a member of staff at the Employment Tribunal, who said that she had spoken to a Chairman and that the answer from that Chairman was that, "he would have thought that this would be a matter for the EAT to consider, however, his preference is that the original date of Judgment should be considered as the point of promulgation". Whatever his preference was, it was indeed a matter for the Employment Appeal Tribunal to resolve, and the Registrar concluded that time ran from the original date, and that consequently the Appellant was out of time and there was no ground for an extension.[9]I have no doubt at all that, in the ordinary course of a correction, such a correction does not make time run afresh, and that the Registrar's decision would ordinarily be correct. There may be circumstances, depending on their own facts, in which a correction is so substantial that it might justify delay, in the sense of a need for further consideration by the proposed Appellant. But, in my judgment, although the Appellant says here that that he was bewildered, as I have no doubt he was, by the fact that, on the face of it, a claim had been dismissed which he had not thought was being dealt with, that bewilderment would have been easily alleviated by reading the Judgment, in which there is no mention whatever of the other claim being considered, never mind dismissed. As it happens, he received an unsatisfactory response on the telephone. But once he wrote in, and a Chairman looked at it and appreciated that there was, as was clearly the case, simply an erroneous reference to the second case number, the obvious course would have been for the Tribunal to have made the necessary correction, simply sending a further copy of the first page with the incorrect case number deleted, under cover of a certificate of correction.[10]However that is not what occurred in this case. What occurred in this case was that the certificate of correction was in the terms which I have quoted, which positively deleted the entirety of the reasons, and substituted an entirely fresh Judgment. In those circumstances, the consequence, in my judgment, is that that meant that there was a complete substitution of a fresh Judgment, and that time ran from the promulgation of the new Reasons, i.e. the date of the certificate of correction substituting those new Reasons: alternatively, in any event, that there was sufficient doubt as to that, caused by the way in which the Employment Tribunal chose to issue its certificate of correction, that such would be a ground for an extension of time by the Appellant in this case.[11]I take this opportunity urgently to recommend to Tribunals that, in the event of there being a need for a correction, either as a result of an error being pointed out by a party, or as a result of the Tribunal noticing such need itself, that, unless such correction is so substantial as to require a fresh decision, in which case it probably constitutes not a correction but a review of its own motion under Rule 34(5), they should not adopt this course of sending out a certificate of correction which purports to delete the entirety of the reasons and substitute corrected reasons. What they should do is, as I have earlier indicated, simply send out the corrected page or pages under cover of a certificate of correction. It may well be appropriate additionally, for the avoidance of any doubt, to accompany this with a statement that the date of promulgation remains unaltered; if so advised, they could further add words to the effect that the time for appeal, if any, continues to run from the original date.[12]In those circumstances this appeal is allowed.