Tasneem v Dudley Group of Hospitals NHS Trust

For the purpose of calculating time for an appeal to the Employment Appeal Tribunal, a judgment is “sent” when it is handed to the Post Office, rather than when it is received. The date recorded on the judgment as the date of sending gives rise to a strong presumption that it was posted on that date, but the presumption is rebuttable. A litigant may challenge the recorded date by evidence establishing, on the balance of probabilities, that posting occurred later. Employment Tribunals should maintain procedures enabling the actual date of posting to be demonstrated and should provide evidence of those procedures when the date of sending is seriously disputed.

The appellant had brought extensive employment claims before the Employment Tribunal, including claims for breach of contract, fixed-term status discrimination, race and age discrimination, and unfair dismissal. The tribunal’s judgment recorded that it had been sent on 9 March 2009.

The Registrar refused to extend time for appealing, holding that the Notice of Appeal received on 22 April 2009 was two days late. The appellant argued that the judgment had not been posted until 11 March. The central issue was whether he could challenge the date recorded on the judgment and, if so, whether the Notice of Appeal was in time.

1. Appeal allowed. The Notice of Appeal was lodged in time and was to be placed in the sift for consideration of its future conduct.
2. Under rule 3 of the Employment Appeal Tribunal Rules, time runs from the date on which written reasons are sent to the parties. In accordance with Gdynia America Shipping Lines (London) v Chelminski [2004] EWCA Civ 871 and Sian v Abbey National plc [2004] ICR 55, “sent” means despatched, namely handed to the Post Office.
3. The date stamped on a judgment as the date of sending creates a strong presumption that the document was posted on that date. The presumption is not irrebuttable. The approach in Echendu v William Morrison Supermarkets, concerning common sense and ordinary experience, did not make the recorded date conclusive.
4. The appellant bore the burden of proving, on the balance of probabilities, that posting occurred later. His unchallenged evidence, supported by evidence about normal postal delivery times and the absence of reliable tribunal posting records, established that the judgment was probably posted on 11 March rather than 9 March.
5. The strict approach to extensions of time remains applicable, as reflected in United Arab Emirates v Abdelghafar [1995] IRLR 243 and its approval in Jurkowska v Hlmad [2008] EWCA Civ 231. The Tribunal nevertheless did not need to determine the extension application because the appeal was in time.
6. Employment Tribunals should comply with rule 30(4) of the Employment Tribunals Rules of Procedure through procedures ensuring that documents are posted on the recorded date. Where that date is seriously challenged, evidence of the relevant procedures should be made available to the Employment Appeal Tribunal.

• Employment Tribunal, Birmingham: dismissed the appellant’s employment claims. The judgment recorded that it was sent on 9 March 2009.
• Employment Appeal Tribunal Registrar: on 1 July 2009 refused to extend time, treating the Notice of Appeal as two days late.
• Employment Appeal Tribunal: allowed the appeal, held that the Notice of Appeal was lodged in time, and directed that it be placed in the sift.