Gdynia American Shipping Lines (London) Ltd v Chelminski

Where the time for an employment appeal runs from the date extended reasons were sent, the date is the date on which the tribunal posts them. It is not the date of deemed postal delivery. Section 7 of the Interpretation Act 1978 determines when service is deemed effective. It does not alter the ordinary meaning of “sent” where the rule selects dispatch as the trigger for time. The issue is one of statutory construction, not administrative convenience.

The employer sought to appeal an Employment Tribunal decision which had struck out its notice of appearance, implied an equality clause into the respondent’s contract, and awarded pay arrears.

The Employment Appeal Tribunal upheld the Registrar’s ruling that the employer’s appeal was out of time and refused an extension. The tribunal had posted its extended reasons on 19 June 2003. Although a notice was filed on 30 July, a valid notice, with the required accompanying documents, was filed only on 1 August.

The central issue was whether the 42-day period under rule 3(3)(a) ran from posting or from deemed delivery under section 7 of the Interpretation Act 1978.

Disposition

1. The Court of Appeal unanimously dismissed the employer’s appeal. Pill LJ gave the judgment, with which Longmore and Scott Baker LJJ agreed.

2. Under rule 3(3)(a) of the Employment Appeal Tribunal Rules 1993, “sent” bears its ordinary meaning. The extended reasons were sent when the Employment Tribunal put them into the post on 19 June 2003. The 42-day period therefore expired on 31 July. The appeal was instituted only when a valid notice was filed on 1 August and was out of time.

3. Section 7 of the Interpretation Act 1978 applies where post is authorised, but only to deem when service is effected. It does not deem a document to have been sent on its delivery date. It would have been material only if the appeal rule had made time run from the date service was effected.

4. The court approved the conclusion in [1999] ICR 673 and [2004] ICR 55 that time starts on the date of sending. It held that [1997] ICR 683 and [2002] ICR 264, which treated “sent” as the date of deemed delivery, were wrongly decided on that point. The observation in [1987] ICR 696 concerned receipt of a notice and did not govern this issue.

5. The construction did not depend on convenience, although the court noted that the adopted construction was also administratively sensible.

• Court of Appeal (Civil Division) — dismissed the employer’s appeal: [2004] EWCA Civ 871.

• Employment Appeal Tribunal — on 16 December 2003, upheld the Registrar’s decision that the appeal was out of time and refused an extension.

• Employment Tribunal, London Central — its decision was promulgated on 19 June 2003. It struck out the employer’s notice of appearance, declared that an equality clause was implied into the respondent’s contract, and awarded arrears of pay with interest.