In the cases of Rana v Ealing London Borough Council and anor; Bonnie v Department for Work and Pensions, the Court of Appeal has held that even where a judgment is sent to the wrong person, the time limit for appealing a decision to the Employment Appeal Tribunal (EAT) continues to run from the date the Employment Tribunal’s (ET’s) written reasons are sent to the parties.
The Court of Appeal considered two separate cases in the same hearing because they both raised a common point of law concerning the calculation of time limits when appealing a decision to the EAT.
Under rule 3(3) of the Employment Appeal Tribunal Rules 1993, the 42 day time limit for appealing a decision to the EAT starts to run from when the ET’s written reasons are “sent to the parties”.
In the case of Bonnie v Department for Work and Pensions, the Claimant was represented by a firm of solicitors but they came off record during the hearing and the Claimant represented herself. After the hearing, on 28 April 2015, the ET mistakenly sent written reasons following judgment to her former solicitors. The Respondent’s solicitors spotted the error and notified the ET, the Claimant and her former solicitors, giving the ET the Claimant’s email address. The ET did not respond and the Claimant had to make several calls and wrote five times before the ET sent her their written reasons on 4 June.
The Claimant appealed on 15 July but received notification that her appeal was 39 days out of time as the 42 day time limit ran from 28 April instead of 4 June when she actually received the written reasons. She applied for an extension of time but her application was rejected and her appeal dismissed. The EAT accepted that the Claimant received the judgment on 4 June due to no fault of her own, but held that the Claimant had all the information necessary to understand that 42 days ran from 28 April and could have explained the circumstances to the EAT much sooner. The Claimant appealed to the Court of Appeal.
In the case of Rana v Ealing London Borough Council and anor, the Claimant was initially represented by a firm of solicitors but they ceased to act during the course of the proceedings. On 12 September 2014, the ET’s judgment was sent to the Claimant’s former solicitors. The Respondent’s solicitor informed the ET and the Claimant of this error so she wrote to the ET to request reasons to be sent to her. The ET then repeated the error and sent the reasons to her former solicitors yet again. The Claimant contacted the ET once more to request a copy. The ET failed to reply, so she attended at the ET in person on 17 November where she was presented with written reasons.
The Claimant lodged an appeal on 22 December but it was rejected as being out of time which was held to run from 6 November, when the ET originally sent out written reasons. The Claimant appealed but the EAT stated that she had left it to the last moment to file her appeal as she had had the written reasons for a month. The Claimant appealed to the Court of Appeal.
The Court of Appeal considered both cases and held that there is an obvious practical advantage in having a single, contemporaneously recorded date from which time for appealing runs for both parties. Therefore it was concluded that the 42 day time limit starts running from the date the written reasons are sent to the parties even if they are wrongly addressed.
However, the Court of Appeal subsequently went on to allow both Bonnie’s and Rana’s appeals holding that a just outcome in mis-sending cases can be achieved by the appropriate use of the EAT’s discretion to extend time. As the ET had made a fundamental error in both cases, the EAT stated that the Claimant’s should not be put in a worse position than if the ET had done its job properly. The EAT therefore held that in these circumstances the affected party should have 42 days from the date they actually receive a copy of the ET’s written reasons, whether from the ET or from another person, or from any earlier date that the reasons would have been sent had the affected party taken reasonable steps to obtain them.
This case provides some useful guidance when time limits to appeal ought to be extended but also highlights that prompt action must be taken when a party does not receive an ET’s written reasons/judgment if they wish to appeal.
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