Gdynia American Shipping Lines (London) Ltd v Chelminski

The Court of Appeal decided that the expression "date sent" in rule 3(3)(a) of the Employment Appeal Tribunal Rules 1993 bears its ordinary meaning and denotes the date on which the Employment Tribunal put the extended written reasons into the post. The court held that section 7 of the Interpretation Act 1978, which provides for deemed service by post, addresses when service is "deemed to be effected" and does not convert the date of sending into the date of deemed delivery for the purposes of calculating the time for instituting an appeal under rule 3(3)(a).

The court therefore concluded that time began to run from the date the reasons were posted and not from the date on which delivery would be deemed to occur; consequently the appellant’s valid notice of appeal was out of time. The court rejected the decisions in Immigration Advisory Service v Oommen and Scotford v Smith Kline Beecham as wrongly decided on this point, and approved the approach in Hammersmith & Fulham LBC v Ladejobi and Sian v Abbey National plc.

This is an appeal from the Employment Appeal Tribunal (EAT) decision of 16 December 2003 upholding the Registrar’s decision of 29 October 2003 that an appeal to the EAT was out of time and refusing an extension. The Employment Tribunal, on 19 June 2003, had struck out the appellant’s notice of appearance to the respondent’s claim, declared that an equality clause was to be implied into the respondent’s contract of employment and ordered arrears of pay of £45,425 plus interest.

The appellant sought to challenge the EAT’s conclusion that the appeal was late. The sole issue before the Court of Appeal was the construction of paragraph 3(3)(a) of the EAT Rules 1993: whether the "date sent" from which the 42-day appeal period runs is the date the decision and extended reasons were posted by the Employment Tribunal or the date on which service is deemed to be effected under section 7 of the Interpretation Act 1978.

• Nature of the application: an appeal against the EAT’s refusal to extend time and the finding that the appeal was out of time.
• Issues framed: (i) the meaning of "date sent" in rule 3(3)(a) of the 1993 Rules; (ii) whether section 7 of the Interpretation Act 1978 changes the running of time to the date of deemed delivery where post is authorised.
• Court’s reasoning: the Court gave "sent" its ordinary meaning — the date the Employment Tribunal put the papers into the post. Section 7 concerns when service is "deemed to be effected" and is relevant to questions of service, not to the computation of time which the rules expressly fix from the date of sending. If rule 3(3)(a) had referred to the date on which service was effected, section 7 would bear upon that question, but the rule does not. The court considered prior EAT authorities and held two of them wrongly decided on this point while endorsing others that reached the contrary conclusion.

The Court of Appeal therefore dismissed the appeal; the valid notice of appeal filed on 1 August 2003 was out of time if time ran from the date the reasons were posted on 19 June 2003.

Appeal dismissed. The Court held that the phrase "date sent" in rule 3(3)(a) of the Employment Appeal Tribunal Rules 1993 means the date on which the Employment Tribunal put the extended written reasons into the post. Section 7 of the Interpretation Act 1978 governs when service is "deemed to be effected" and does not alter the date of sending for the purpose of calculating the appeal period under rule 3(3)(a). Decisions holding otherwise were rejected as wrongly decided on this point.

Appeal from the Employment Appeal Tribunal decision of 16 December 2003 (His Honour Judge Peter Clark) which upheld the Registrar's decision of 29 October 2003 that the appeal was out of time. Underlying Employment Tribunal decision promulgated 19 June 2003 (London Central) struck out the appellant's notice of appearance and implied an equality clause, awarding arrears of pay. This Court of Appeal judgment delivered 6 July 2004 dismissed the appellant's appeal.