DR M S TASNEEM v DUDLEY GROUP OF HOSPITALS NHS TRUST [2010] UKEAT 0496_09_1801

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0496_09_1801Case No Appeal No. UKEATPA/0496/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR M S TASNEEMAPPELLANTDUDLEY GROUP OF HOSPITALS NHS TRUSTRESPONDENT
Before
His Honour Judge SerotaDate 18 January 2010
[1]APPEARANCES For the Appellant MR MICHAEL HARTMAN (of Counsel) For the Respondent MR TARIQ SADIQ (of Counsel) Instructed by: Messrs Mills & Reeve LLP Solicitors 78-84 Colmore Row Birmingham B3 2AB SUMMARY PRACTICE AND PROCEDURE: Time for appealing It is open to a litigant when appropriate to challenge the accuracy of the date recorded on an employment tribunal judgment as to the date when it was "sent" to him. Employment Tribunals have a procedure to ensure that documents are sent on the on the date stamped upon the document as being the date of sending. In future cases, when requested to do so, the Employment Tribunal should be ready to provide evidence as to those procedures. HIS HONOUR JUDGE SEROTA QC The point raised on this appeal is short and not altogether easy to decide. I am extremely grateful to both Mr Michael Hartman, who has appeared on behalf of the Claimant, and Mr Tariq Sadiq, who has appeared on behalf of the Respondent, for their helpful submissions. I have to say that I find it surprising that the point that has arisen in this case has not been raised in other cases. The point concerns time limits for lodging appeals in the Employment Appeal Tribunal; these time limits are notoriously strict.[2]This is an appeal by the Claimant from a decision of the Registrar of 1 July 2009 in which she had refused to extend the time for service of a Notice of Appeal which she considered to have been served two days out of time. The Claimant is a consultant surgeon and brought proceedings in the Employment Tribunal against the Respondent health authority. The substantive appeal was against a decision of the Employment Tribunal at Birmingham, (Employment Judge van Gelder together with two lay members) who, after a hearing that lasted some 12 days including time for preparing a reserved judgement, rejected the Claimant's claims. The claims that were dismissed included claims for breach of contract, less favourable treatment on grounds of his fixed-term status, discrimination on the grounds of race and age and also unfair dismissal.[3]The judgment of the Employment Tribunal records on page 41 that it was sent to the parties on 9 March. The judgment is signed by the Employment Judge. It is not clear who has completed the balance of the subscription, "Judgments sent to parties on 9 March 2009" but the signature, which is not clear on my copies, appears to be "F Robinson". I assume that the signatory had some administrative function at the Employment Tribunal in Birmingham. The judgment is some 41 pages long and is extremely detailed. Assuming that the judgment was in fact sent on 9 March 2009, the effect of rule 3 of the Employment Appeal Tribunal rules would be that the last time within which the Notice of Appeal might be filed would be 4.00pm on 20 April 2009. The rules, as is well known, provide that the Notice of Appeal must be lodged, so far as concern this case, within six weeks, that is, 42 days, from the date when the written reasons for the judgment of the Employment Tribunal 'were sent to the parties'; see Employment Appeal Tribunal Rules rule 3(3). The Notice of Appeal in this case was received by the Employment Appeal Tribunal on 22 April 2009.[4]The relevant authorities make clear that the rules for service of appeals in the Employment Appeal Tribunal, as I have mentioned, are fairly strict. The Registrar refused to extend time; hence the matter comes before me. I should note, however, that the Claimant has always maintained that his appeal was not out of time because he does not accept that the judgment was sent to him on 9 March in the sense that the judgment was not handed over to the post office for delivery on that date (it is common ground that "sending" means delivery to the Post Office). He maintains that, on the balance of probabilities, it is more likely than not that it in fact was not in the hands of the post office until 11 March. I do not regard it as necessary for me to go into the reasoning of the Registrar, this being a rehearing, with no disrespect to the Registrar who has given a careful judgment in which she has referred to the relevant authorities.[5]The strict approach of the Employment Appeal Tribunal is most clearly set out in the decision of Mummery J in United Arab Emirates v Abdelghafar [1995] IRLR 243 , a decision that has been approved by the Court of Appeal on a number of occasions since including in the decision Jurkowska v Hlmad [2008] EWCA Civ 231 , in which the Court of Appeal approved Abdelghafar having taken account of the overriding objective which was not in effect when Mummery J gave his judgment. In the circumstances, I do not think it is necessary for me to cite the material passages from Abdelghafar .[6]The Claimant has always maintained that he received the judgment on 12 March. He invites the Employment Appeal Tribunal to find that, on the balance of probabilities, it was sent on 11 March 2009. He has given evidence in various witness statements as to the fact that he lives within ten miles of the Employment Tribunal and that post to and from the Employment Tribunal and indeed the Employment Appeal Tribunal generally arrives the day following the date that it has been posted by first class post. Indeed, he has sent certain test letters, so to speak, and has been able to produce not only the envelopes showing the time when they were stamped by the post office but also the time when they were delivered.[7]It is clear that, on any showing, the Claimant was adopting what might be described as a high-risk strategy by leaving it until the very end of the 42 days before ensuring that the Notice of Appeal, together with the relevant supporting documents, was lodged with the Employment Appeal Tribunal. Again, as nothing turns on it for present purposes, I do not need to go into his explanation which is partly that Counsel was apparently extremely busy in relation to other matters. Counsel sent a draft Notice of Appeal on 17 April to the Claimant for his approval, and advised him to send it immediately to the EAT. At that point in time, the Claimant was having difficulties with his computer and he therefore did not send the document to the EAT until 21 April, believing, he has said, that he had until 22 April to do so.[8]The Claimant has since put in a further witness statement dated 5 August 2009, to which I need to refer. The Claimant, who, as I have said, had previously made clear that he did not accept that the Decision was sent on 9 March, wrote to the administrator of the Employment Tribunal at Birmingham on 27 July 2009 and asked for clarification of a number of points, including the date when the Decision was posted from the Employment Tribunal, at what time, and whether there was any entry in a book such as a post book. He also wanted to know what time the bundle was physically taken from the building, to which post office it was taken to, and what the level of posting was.[9]He has given evidence in his witness statement of 5 August 2009 that he received a telephone call from the Employment Tribunal in Birmingham on 28 July 2009. He rang back and spoke to Mr John Edwards and he gives the time of the conversation at 13:50. Mr Edwards had received the Claimant's letter and read it, but he was unable to tell him the date and time of sending the Decision to his home address. Mr Edwards told the Claimant that no record of sending was made in any entry book in the Employment Tribunal. Mr Edwards could not confirm the method of sending or the date and time the letter was physically taken outside the Employment Tribunal. Mr Edwards said that letters were placed in a bag and collected by a postman each afternoon, and I now quote from the Claimant's statement which records him being told by Mr Edwards that:
"My original decision may have been signed and sent to a section for posting and in due course placed in an envelope and then into the postbag and finally left the ET with the postman two days after it was signed."
[10]The Claimant then goes on to explain how he sent various test letters and posted them to his home address from a post office near to the Employment Tribunal in Birmingham City Centre at 16:08 on 29 July 2009, one by first and the other by second class, and both of these letters were delivered to his home address on 30 July 2009. He then went to Edgbaston and reposted the same letters by first and second-class post at 16:48 on 30 July 2009. Those letters were redelivered to his house on 31 July 2009. I have in my papers photocopies of the relevant envelopes.[11]I do not propose to deal with the Claimant's case that his time for lodging a Notice of Appeal should be extended if I find that it was lodged out of time. I do not rule on the point but, in the exercise of my discretion, I would not have been minded, I believe, to extend the Claimant's time because, were I to have found that the Decision was posted to him on 9 March, he would have been taking a wholly unnecessary and inappropriate risk in leaving matters to the very last minute and his explanations for the delay would not have moved me. However, I need to grapple with the question as to whether or not the Claimant has made good his case that, on the balance of probability, the Decision was put in the post on 11 March.[12]I do not intend to give a comprehensive summary of the provisions as to service contained in the relevant rules of Employment Tribunals or the Employment Appeal Tribunal. However, I note that the Employment Appeal Tribunal uses at least three models to determine when time starts to run following the service of an order or document that requires some act to be done by the party upon whom the document or order has been served. For example rule 35 of the Employment Appeal Tribunal Rules contains detailed provisions in relation to postal service and time runs from the date of service. I also note that, by virtue of rule 37, the time for doing an act requires it to be done by 4.00pm on the day in question; see rule 37(1A). Rule 61 of the Employment Tribunals Rules of Procedure provides more detailed provisions as to service, but again the time for the person served to do an act commences upon service of the document upon him.[13]The second model is that used in most procedural orders of the Employment Appeal Tribunal which require action to be taken 'Within … days of the seal date of this Order'[14]The third model is that which appears in rule 3 and as I have noted starts time running in the case of cases [rule3 (3) (a) (i)] where judgments were reserved or written reasons sought within 14 days of the decision '42 days from the date on which the written reasons were sent to the parties'[15]Time is also to start running based on the date when the appropriate document or judgement was sent to the parties in the case ofa. national security proceedings, [rule3(3)(a) (ii)],b. cases where there have been no written reasons [rule 3(3)(a) (iii)],c. appeals from decisions of a Certification Officer [rule 3(3) (c)],d. appeals from a declaration or order of the Central Arbitration Committee [rule (3) (d)].[16]In the case of directions under rule 3.7 of the Employment Appeal Tribunal's Rules an appellant may pursuant to rule 3.10 express dissatisfaction in writing with the reasons given by the Judge or Registrar within 28 days of the date the notification was sent so as to entitle him to a hearing before a Judge.[17]For the sake of completeness I note that time starts to run in the case of appeals from "orders" of an Employment Tribunal from the date of the order [rule 3(3) (b)].[18]I should also draw attention to the Employment Appeal Tribunal Practice Direction which deals with the time for instituting appeals and makes clear that the date of an order or decision is the date when the order or decision was sent to the parties, which is normally recorded on or in the order or decision.[19]It may also be of interest to note that insofar as the date when documents or orders are sent by the Employment Appeal Tribunal are concerned rule 35 provides that the 'Appeal Tribunal may inform itself in such manner as it thinks fit of the posting of any document by an officer of the Tribuna.'.[20]Until 2004, and the decision of the Court of Appeal in Gdynia America Shipping Lines (London) v Chelminski [2004] EWCA Civ 871 , there was some dispute as to whether or not rule 3 of the Employment Appeal Tribunal rules was to be given its ordinary meaning in relation to the word "sent", namely the time when the document was despatched, or whether it should be deemed to mean the date when service was actually effected on the party in question. In the Gdynia America case, Pill LJ, who gave the lead judgment, made clear that the word "sent" in rule 3(3) of the 1993 rules is to be given its ordinary meaning. He approved the decision of the former President, Burton J, in Sian v Abbey National plc [2004] ICR 55 to the same effect. In my opinion, therefore, the judgment or decision in this case was sent when it was handed over to the post office.[21]It is, however, of interest to see that Burton J gave as a reason for preferring the literal meaning of rule 3.(3) that:
"15(3). If the decision were otherwise, great uncertainty would arise because it could never be clear what the date was from which time for a Notice of Appeal ran. Without in any way saying that in any particular case an inadequate or inaccurate account will be given by a would-be Appellant, the Tribunal and the Respondent will be left in the hands of the Appellant to give evidence as to precisely when he received the Extended Reasons. It will very often be impossible to challenge statements that are made which may not necessarily be accurate. …it is important that the courts and the parties have an exact date from which time, on the face of it, runs."
[22]My attention has been drawn to a decision of the President, Underhill J in the case of Echendu v William Morrison Supermarkets , a decision of the EAT of 20 June 2008. This case concerned the analogous circumstance of service of an expression of dissatisfaction under rule 3(10) of the Employment Appeal Tribunal's rules which was required to be served within 28 days of the date that the notification under rule 3.7 had been sent. The Registrar had held that the Claimant's application was out of time, and he appealed to Underhill J. Underhill J held that the 28 days for filing of the application ran from the date of the sending of the rule 3(7) notification and that the Claimant had shown no sufficient grounds for extension.[23]There was some dispute as to when the letter containing the rule 3(7) direction was sent. Underhill J had this to say, and I now quote from paragraph 13:
"As to the first question, I regard it as quite clear that time for the service of an application under rule 3(10) runs from when the notification under rule 3(7) is sent by the Tribunal and not from when it is received by the party. The words of the rule, which I have underlined in setting it out above, are quite explicit. In theory, the question arises of how the date of sending is to be proved. The Rules contain no provision expressly dealing with this. The Appellant refers me to paragraph 1.9 of the Employment Appeal Tribunal Practice Direction 2004, being the version in force at the relevant time, which provides that 'Any reference to the date of an order shall mean the date stamped upon the relevant order by the EAT ('the seal date')'. However, that provision does not purport to relate to the date of the sending of documents from the Tribunal and specifically is concerned only with orders. In any event, of course, the Practice Direction does not have the status of Rules. It is of course common, as the Appellant pointed out to me, for Employment Tribunal judgments and reasons to bear a formal stamp showing separately the date at which the document in question was formally signed and the date, which may well differ by a few days, on which it was sent to the parties; but again there is no provision for such a procedure to apply to correspondence of the kind with which we are here concerned."
It seems to me that what the President has said there and what he goes on to say, in a passage I shall shortly quote, applies just as much to the date when decisions or judgments of an Employment Tribunal are "sent".[24]Underhill J then continued:
"I am bound to say, however, that any theoretical difficulty about establishing the date of sending of a notification under rule 3(7) ought not in the ordinary case to give rise to any difficulty in practice. Where the envelope is available, the postmark will of course constitute authoritative proof of the date of sending. No doubt, however, as the Appellant says was the case here, parties do not routinely look at the envelope for such a purpose or keep it so that it can be consulted subsequently. But even in the absence of a postmarked envelope, an ordinarily prudent person, appreciating that time runs from the date of the sending of the letter, will proceed on the assumption that the letter was sent on the date that it bears. That assumption will, as a matter of common sense and common experience, generally be right, though no doubt in some cases a letter typed on one day will not be sent out until the next working day or even very occasionally later than that. I understand from enquiries made that it is certainly the practice in the office at this Tribunal that letters will be sent out on the date that they bear, though there may be some exceptions. However, my point does not depend on any knowledge of the procedure of this Tribunal but, as I say, on common sense and common experience. Acting on that assumption will give a simple and certain rule and will not in any significant way prejudice the recipient. At the most, he may 'lose' one or two days after the 28-day period that he has in which to respond."
The President then went on to note that, in the case before him, the question was academic because the Claimant would have been out of time in any event.[25]It was submitted to me by Mr Tariq Sadiq, who appears on behalf of the Respondent, that the President was, in effect, laying down a rule that, in the absence of the envelope showing the date when the letter was date-stamped by the post office, the date that it is asserted in the document it was sent is, in effect, conclusive. I regret to say that I am unable to accept that submission and I do not believe that that is what the President concluded. The President was pointing out that, as a matter of common sense, a person should assume that a document was sent on the date that it was sent and, in the ordinary course of events, the best means of showing this was not so would be by reference to the envelope. However, the President was not saying that the assumption is one that cannot be rebutted by evidence and, in the particular circumstances of this case, the evidence put forward by the Claimant has not been challenged. There has been no application to cross-examine the Claimant, and the Respondent, for reasons no doubt good to the Respondent, has not sought to investigate the matter with the Employment Tribunal in Birmingham.[26]Since I delivered my ex tempore judgement I have considered rule 30(4) of the Employment Tribunal Rules. Unfortunately this was not cited to me. The rule provides "(4) When written reasons are provided, the Secretary shall send a copy of the reasons to all parties to the proceedings and record the date on which the reasons were sent. Written reasons shall be signed by the chairman"[27]I was not addressed as to the effect of this rule but it would seem to raise a very strong presumption that a document was sent on the date endorsed upon it as having been the date upon which it was sent, but I would not consider this inference to be irrebuttable.[28]I, of course, approach this matter on the basis that the burden is on the Claimant to establish that the judgment was not put in the post on the day that it records but, in my opinion, he has done so principally by reference to the evidence of Mr John Edwards. Mr Edwards' evidence is supported by the fact that of virtually all the documents sent where the date of posting and the date of receipt can be verified, on the balance of probabilities, all documents sent by post were received the day after they had been posted.[29]In those circumstances, it seems to me that the Claimant has, on the balance of probabilities, succeeded in showing that, contrary to what is stated at the end of the Decision of the Employment Tribunal, it was not put in the post on 9 March but was most likely put in the post the day before it was received. In those circumstances, the Notice of Appeal was lodged in time, just. I note that the Claimant has not been able to produce the original envelope in which the judgment was posted and I, of course, have had regard to that. In those circumstances, the appeal will be allowed and the Notice of Appeal will be placed in the sift for consideration as to its future conduct.[30]I am concerned about the result of this appeal as I recognise that it may lead to unmeritorious claims that a judgment of the Employment Tribunal was sent after the date it is recorded as having been sent. It seems to me, however, that any provisions starting time running from the date a document is 'sent' are capable of giving rise to similar uncertainty as in the case of provisions that start time running from the date a document is 'served'. These difficulties can be avoided in the case of judgments or orders by making time run from the seal date of the order. Any delays in effecting service can be dealt with by exercise of the discretionary powers to extend time.[31]It must be clearly borne in mind that in this particular case, the evidence of Dr Tasneem has not been challenged and I have not had the benefit of any evidence from the Employment Tribunal in Birmingham. I would expect that all employment tribunals will have procedures in place for giving effect to rule 30(4) of the Employment Tribunals Rules of Procedure , so that it can be clearly shown that a document is delivered to the Post Office on the date recorded on the document. My understanding is that the Employment Tribunals' standard office procedure is designed to ensure that the date of sending, as stamped on the decision, is indeed the day the document is actually handed to the postman or put in the postbox - which of course is why separate dates are frequently given for date of signing and date of sending. Such procedures are in place and must, of course, be strictly followed. In any future case in which the date when the judgment is recorded as having been sent is seriously placed in issue, I would expect that the Employment Tribunal will be able, if requested to do so, to make available to the Employment Appeal Tribunal, evidence as to those procedures.