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19 November 2018

129: Guidance on time limits for appeals where a judgment is sent to the wrong person or address

Under the Employment Appeal Tribunal Rules 1993, the 42 day time limit for appealing an Employment Tribunal judgment starts to run from the date on which it was sent to the parties (Rule 3(3)).

Case law has established that extensions of time will only be granted in very exceptional circumstances. In two joined cases, Rana v Ealing LBC and Bonnie v Department for Work and Pensions, the Court of Appeal considered when the Employment Appeal Tribunal (the EAT) time limit for an appeal starts to run where the Tribunal sent its judgment to the wrong person or address.

In both cases, the Tribunal erroneously sent written reasons to firms of solicitors who were no longer acting for the employee. This resulted in both employees lodging their appeals outside the 42 day time limit. Whilst acknowledging that some of the delay was not the employees’ fault, the EAT refused to grant an extension of time. The employees appealed to the Court of Appeal.

The Court of Appeal held that a judgment was still ‘sent to the parties’ for the purposes of Rule 3(3) if it was wrongly sent to someone other than a party or their representative. However, because of the potential unfair prejudice caused by this interpretation, the EAT should use its general discretion to extend time under Rule 37 of the EAT Rules to allow the affected party the full 42 day period for appealing. The guiding principle had to be that the party affected by the Tribunal’s mistake should not be put in a worse position than if the Tribunal had done its job properly. Time should therefore start to run on the date that the Tribunal correctly re-sent the judgment, or the date the party received it from another source, such as their opponent. Applying these principles, each employee was granted an extension of the time limit to lodge their appeal.

The Court of Appeal also emphasised that if an affected party becomes aware of an error by the Tribunal, it must take reasonable steps to obtain a copy of the judgment as soon as possible. Its decision only relates to cases where the Tribunal has made a mistake. In other circumstances, the 42 day limit will be strictly applied from the date on which the judgment was sent to the parties.

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