Patel v South Tyneside Council & Ors

An appeal notice sent by email is served when it reaches the Employment Appeal Tribunal’s server. It need not appear in an individual inbox or be acknowledged manually.

Where an employment tribunal issues a complete fresh judgment and reasons, rather than correcting the original decision by certificate under rule 37(1), time for appealing runs from the date the fresh judgment is sent. Alternatively, time may be extended in exceptional circumstances where the appellant is not at fault and it was reasonable for legal advisers to assume that electronic service had been completed.

The appellant challenged a Registrar’s refusal to extend time for appealing an Employment Tribunal decision.

The tribunal had issued an initial decision on 9 May 2011 containing an incorrect date for sending the reasons. It then issued a complete second decision on 12 May 2011, followed later by a certificate of correction. The appellant’s representatives emailed the appeal notice on 17 June 2011 and, after being told that it had not been received, resubmitted it on 22 June 2011.

The appeal concerned whether the first email constituted service, whether time ran from the second decision, and, if necessary, whether time should be extended.

1. Appeal allowed. The appeal notice was served in time. Alternatively, time should be extended.

2. An email is served when it reaches the EAT’s server. It is immaterial whether the message was generated or acknowledged by an automated system described as “DAEMON”, or whether it appeared in an EAT inbox. The evidence showed successful delivery to the EAT email address. The approach in Yellow Pages Sales Ltd v Davie UKEATS/0017/11/B1 was applied.

3. Under rule 3(3)(a)(i)(bb) of the Employment Appeal Tribunal Rules 1993, the relevant period runs from the date on which written reasons are sent to the parties. The date recorded in the judgment and reasons is normally the best evidence, but where the parties agree that it contains a clerical error, time runs from the actual date of sending.

4. Decision 2 was not a correction under rule 37(1) of the Employment Tribunals Rules of Procedure 2004. It contained the tribunal’s judgment and reasons in their entirety and was signed and dated afresh. It was therefore an entirely fresh judgment, so time ran from 12 May 2011. The reasoning in Aziz-Mir v Sainsbury’s Supermarket plc UKEAT PA/0537/06 was applied. The later certificate of correction could not retrospectively correct Decision 1.

5. If the notice had been out of time, the circumstances were exceptional. The appellant was not at fault, and the legal advisers were entitled to rely on the successful-delivery notification. The principle in Muschett v Hounslow LBC [2009] ICR 424, including the relevance of a claimant’s lack of fault, supported extending time.

• Employment Appeal Tribunal: Appeal from the Registrar’s order allowed. The notice of appeal was held to be in time, alternatively time was extended.
• Employment Tribunal: Issued Decision 1 on 9 May 2011 and a complete fresh Decision 2 on 12 May 2011.