Rana v London Borough of Ealing & Anor

For an appeal to the Employment Appeal Tribunal, a judgment or written reasons are “sent to the parties” when the tribunal promulgates them. Time therefore begins to run even if a copy is mistakenly sent to a former representative or an incorrect address.

The Employment Appeal Tribunal should ordinarily exercise its power to extend time so that a party affected by the tribunal’s mistake receives the full appeal period from eventual receipt. This is subject to any earlier date on which reasonable and prompt steps would have secured a copy. The party must provide evidence of the mis-sending, eventual receipt and intervening efforts to obtain the decision.

These conjoined appeals challenged separate decisions of the Employment Appeal Tribunal refusing extensions of time for appeals from Employment Tribunal decisions. In each case, the Employment Tribunal sent its decision or reasons to a former representative despite having been informed that the representative no longer acted.

The principal issues were whether the documents had nevertheless been “sent to the parties” under Rule 3(3) of the Employment Appeal Tribunal Rules 1993, and, if time had begun to run, how the discretion to extend time under Rule 37 should be exercised. A majority held that both appeals required extensions. All three members of the court agreed that the appeals should be allowed.

1. Both appeals allowed. The cases were remitted to the Employment Appeal Tribunal for consideration under its sift process. The court expressed no view on whether the proposed appeals raised arguable points of law.
2. Underhill LJ, with whom Bean LJ agreed, held that “sent to the parties” in Rule 3(3) of the Employment Appeal Tribunal Rules 1993 refers to the tribunal’s act of promulgation. A single, contemporaneously recorded date must govern both parties. Time therefore starts when copies are sent out, even where a copy is mistakenly addressed to a former representative or another unauthorised recipient. Carroll v Mayor’s Office for Policing and Crime [2015] UKEAT 203/14 was correctly decided on that issue, although not all its reasoning was adopted.
3. A tribunal’s mis-sending is fundamentally different from the usual case in which lateness results from the appellant’s own default. Rule 37 should ordinarily be exercised so that the affected party receives the full 42-day period from the date on which a copy is eventually received from the tribunal or another source. The period may instead run from an earlier date on which reasonable and prompt steps would have secured a copy. A party who learns of the error must act reasonably to obtain the decision.
4. The party seeking an extension must establish the mis-sending, explain when and how the decision was eventually received, and describe the steps taken to obtain it. The usual strict guidance associated with Abdelghafar v United Arab Emirates [1994] ICR 6 is not apt where the appeal period has been abbreviated or lost through the tribunal’s own mistake.
5. Each appellant had acted promptly after learning of the error. The delays were attributable to the tribunal. The only proper exercise of discretion was therefore to extend time to the dates on which their appeals were properly filed.
6. McCombe LJ agreed in the result but considered that no extension was needed. In his view, a document is not “sent to the parties” unless it is sent to the correct party at the notified address for service. He would have held that Carroll was wrongly decided.

• Court of Appeal (Civil Division): Both appeals were allowed in [2018] EWCA Civ 2074. Extensions were granted and the cases remitted to the Employment Appeal Tribunal for sift consideration.
• Employment Appeal Tribunal: HH Judge Eady QC upheld the Registrar’s refusal to extend time in each case. No neutral citation is stated in the judgment.
• Employment Tribunal: The respective underlying claims were dismissed. The neutral citations of those decisions are not stated in the judgment.