The claimant lost his case in the ET and appealed against the decision. Unfortunately the EJ made a mistake with the first decision (Decision 1), writing that the reasons had been sent to the parties on 9 April when in fact the correct date was 9 May. He was informed of the error and signed a second decision (Decision 2) dated 9 May. The parties received Decision 2 on 12 May. The claimant's representative emailed the Appeal Notice on 17 June but when they checked on 22 June, the EAT informed then that no notice had been received, despite the representative having received a 'successful delivery' notice. They re-submitted the Appeal Notice which was lodged by the EAT on 23 June. The EJ signed and dated a Certificate of Correction on 5 July. The EAT rejected the Appeal Notice on the basis that it was out of time and time should not be extended. The claimant appealed.

The EAT accepted the submissions of the claimant. First, the Notice of Appeal which was served on 17 June, was in time to challenge Decision 1. Second, the claimant was entitled to appeal against Decision 2, sent to parties on 12 May, and did so by serving a Notice of Appeal in time of 23 June. Third, if the Notice of Appeal was out of time, there were exceptional reasons for extending time. The EAT agreed that Decision2 was an entirely fresh judgment and time for appeal ran from the date on which Decision 2 was sent to the parties. A Certificate of Correction sent subsequently did not have the effect of correcting Decision 1.
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Appeal No. UKEATPA/0917/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 November 2011

Judgment handed down on 28 November 2011

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE (SITTING ALONE)

MR SURESH PATEL (APPELLANT)

(1) SOUTH TYNESIDE COUNCIL; (2) MS A GODFREY; (3) GOVERNING BODY OF MARGARET SUTTON SCHOOL (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR J COHEN (of Counsel)

Instructed by:
Messrs Kingstons Solicitors
141-143 Benwell Lane
Newcastle Upon Tyne
NE15 6RT

For the Respondents
MR H MENON (of Counsel )

Instructed by:
South Tyneside M B C (Legal Services)
Town Hall & Civic Offices
Westoe Road
South Shields
Tyne & Wear
NE33 2RL

Whether Notice of Appeal out of time

Extension of time

Notice of Appeal sent by Appellant's representatives to an e-mail address of the EAT and that e-mail address had "successful delivery" of the e-mail from the Appellant's representatives. It matters not whether the e-mail from the Appellant's representatives appeared in any "In-box" in the EAT's system; what matters is whether the e-mail "hit" the EAT's server. [Yellow Pages Sales Ltd v Davie]() **UKEATS/0017/11/BI applied. Accordingly Notice of Appeal in respect of Decision 1 of the Employment Tribunal in time.

Decision 1 of ET contained a clerical error as to date on which the Reasons were sent to the parties. ET issued Decision 2 which contained the judgment and reasons of the Tribunal in their entirety; signed and dated afresh by the Employment Judge and the clerk. Decision 2 is not a correction to Decision 1 in the form required by rule 37(1) of the Employment Appeal Tribunal Rules 1993. It is an entirely fresh judgment. Time for appeal runs from the date on which Decision 2 sent to the parties. Aziz-Mir v Sainsbury's Supermarket plc UKEAT PA/0537/06 applied. A Certificate of Correction sent subsequently cannot have the effect of correcting Decision 1.

If Notice of Appeal out of time, time should be extended in the exceptional circumstances of the case. Muschett v Hounslow LBC [2009] ICR 424 applied. Appellant not at fault. Whether or not the receipt was from the EAT, the Appellant's legal advisers were entitled to assume that the Notice of Appeal had been properly served on the EAT.

1. The Appellant, Mr Patel, appeals from the decision of the Registrar dated 11 August 2011 that the Notice of Appeal seeking to appeal against the judgment of an Employment Tribunal sitting at Newcastle was out of time and time should not be extended.

1. Mr Jonathan Cohen of counsel appears for the Appellant and Mr Hari Menon of counsel for the Respondents.

1. The factual background can be summarised shortly:

i) It is agreed between the parties that the Employment Tribunal decision was signed by Employment Judge Holmes and sent to the parties on 9 May 2011 ("Decision 1").

ii) As a result of a clerical error the last page of Decision 1 recorded that the reasons were sent to the parties on 9 April 2011. The Employment Judge wrote the date as "9/V/11" when he signed the Reasons. It is probable that the clerk who inserted the date "9.4.11" as the date on which the Reasons were sent to the parties and entered in the Register misread or misinterpreted the Roman numeral "V".

iii) The Employment Judge was informed of the error and on 12 May 2011 he signed a second decision which he dated "9/V/11" as before ("Decision 2"). The same clerk signed that the Reasons were sent to the parties and entered in the Register, this time stating the date as 9 May 2011. It is agreed between the parties that Decision 2 was sent to them on 12 May 2011.

iv) The Appellant's representatives e-mailed the Appeal Notice to the Employment Appeal Tribunal ("EAT") on 17 June 2011.

v) On 22 June 2011 the Appellant's representatives contacted the EAT to check the progress of the appeal. They were informed that no appeal notice had been submitted. They re-submitted the Appeal Notice which was received by the EAT after hours on 22 June 2011 and recorded as having been lodged on 23 June 2011.

vi) On 5 July 2011 the Employment Judge signed and dated a Certificate of Correction which stated:

"Under the provisions of Rule 37(1), I hereby correct the clerical mistake or error in the Reserved Judgment re-sent to the parties on 12 May 2011, by deleting the 9 April 2011 and substituting therefore the 9 May 2011 attached, as per the amended judgment."

The Certificate further contained the following words:

"Important note to parties:

[Any dates for the filing of appeals or reviews are not changed by this Certificate of Correction and amended judgment or order dated 12/5/11. These time limits still run from the date of the original judgment or order, or original judgment with reasons, when appealing]."

1. Mr Cohen makes three submissions. First, that the Notice of Appeal was served on 17 June 2011 which was in time to challenge Decision 1 sent to the parties on 9 May 2011. Second, the Appellant was entitled to seek to appeal against Decision 2 sent to the parties on 12 May 2011 and did so by serving a Notice of Appeal in time on 23 June 2011. Third, if the Notice of Appeal was out of time, there are exceptional reasons for extending time.

1. Mr Cohen submits that it is clear from the documents at pages 51-55 in the Appellant's bundle that the Notice of Appeal was sent by the Appellant's representatives to the EAT on 17 June 2011. Mr Menon accepts that the e-mail address to which it was sent ([email protected]) is an e-mail address of the EAT and that e-mail address had "successful delivery" of the e-mail from the Appellant's representatives.

1. However Mr Menon contends that the documents at pages 51-55 are not evidence of receipt by the EAT because the notification is from "DAEMON", described by Mr Menon as being a third party, and not from the EAT. Referring to these print-outs at pages 51-55, the Registrar said that the printouts are:

"…inadequate and only indicate that a successful delivery notification was sent but this is not proof of receipt. It does not preclude a mail failure notification at a later stage. In any event, it is not prudent to rely on anything other than an acknowledgement from the EAT. The EAT log (attached) shows that no e-mail was received from the Appellant on that day. The EAT computer system was functioning properly."

1. Mr Cohen relies upon the recent decision of this Tribunal in Yellow Pages Sales Ltd v Davie UKEATS/0017/11/B1 in support of his submission that it matters not whether the e-mail from the Appellant's representatives appeared in any "In-box" in the EAT system; what matters is whether the e-mail "hit" the EAT's server. The evidence is that it did. In Davie **Underhill J (P) said:

"[8] I cannot accept the Appellant's case on this point. What was faxed to the tribunal was a written document. The 'data packets' that, on the Judge's findings, reached the tribunal's fax machine were simply the technological means by which that writing was conveyed and would, if the system had not malfunctioned, have translated into a written document – typically by way of printout, though possibly also by presentation on a screen, at the tribunal office. In my judgment it would be out of touch with reality to say that in those circumstances a document in writing had not been presented. The reference to 'writing' in R5(1) plainly excludes oral communications; but there is no reason to suppose that the rule-maker was concerned to distinguish between different ways in which written documents could be transmitted – and of course at the time that the 2004 Rules were made the use of fax was widespread and was accepted by the tribunal as an acceptable means of presenting a claim. What matters, and what the rule-maker was surely concerned with in specifying that any claim should be in writing, is that there should be a presentation to the complaint in a fixed form, which could be communicated in that form to the other party. That had occurred, notwithstanding the document being, in effect, lost at the tribunal's end.

[9] We would add that if the Appellant's point were right, it would seem logically to mean that the writing contained in an e-mail does not in fact appear until the point at which the recipient clicks on his or her inbox. Yet it would be absurd to say that a document presented by e-mail had not been received until that point, simply because no writing had physically appeared."

In my view the fact that the notification was sent by "DAEMON" is not material. I accept Mr Cohen's submissions that even if the mail delivery system is not, contrary to his understanding, the EAT's internal system, the automated system has been triggered because the EAT's system has notified that there has been a successful delivery to the "londoneat" e-mail address.

1. In my judgment the Appellant's Notice of Appeal was served on 17 June 2011 in time.

1. The period within which an appeal to the EAT may be instituted is, where the written reasons for the judgment subject to appeal were reserved and given in writing by the Employment Tribunal, 42 days from the date on which the written reasons were sent to the parties (Employment Appeal Tribunal Rules 1993, r.3(3)(a)(i)(bb)). The EAT Practice Direction 2008 states at paragraph 3.3 that "the date of the written record and of the written reasons is the date when they are sent to the parties, which is normally recorded on or in the written record and the written reasons".

1. It is clear from the Rules that what is critical is the date on which the Reasons were sent to the parties. The date which is recorded on or in the written record and the written reasons is evidence, and normally the best evidence, of the date on which they were sent to the parties. However where as in the present case in relation to Decision 1 the parties are agreed there was a clerical error in the date recorded, time ran from the correct date, 9 May 2011, irrespective of the date recorded.

1. Accordingly there was no need to amend the date that was recorded from 9 April 2011 to 9 May 2011.

1. However if the date was to be corrected the Employment Tribunals Rules of Procedure 2004 require the correction to be made in accordance with r.37 which provides:

"(1) Clerical mistakes in any order, judgment, decision or reason, or errors arising in those documents from an accidental slip or omission, may at any time be corrected by a certificate by the Employment Judge…"

1. Employment Judge Holmes did not on 12 May 2011 correct the error by a certificate. Instead he chose to send to the parties Decision 2, which, as Mr Cohen submits, was a new decision. Decision 2 contains the judgment and reasons of the Tribunal in their entirety; signed and dated afresh by the Employment Judge and the clerk. In support of his submission Mr Cohen relies on the decision of this tribunal in Aziz-Mir v Sainsbury's Supermarket plc **UKEAT PA/0537/06. In that case Burton J said:

"[9] I have no doubt at all that, in the ordinary course of a correction, such a correction does not make time run afresh, and that the Registrar's decision would ordinarily be correct. There may be circumstances, depending on their own facts, in which a correction is so substantial that it might justify delay, in the sense of a need for further consideration by the proposed Appellant. But, in my judgment, although the Appellant says here that he was bewildered, as I have no doubt he was, by the fact that, on the face of it, a claim had been dismissed which he had not thought was being dealt with, that bewilderment would have been easily alleviated by reading the Judgment, in which there is no mention whatever of the other claim being considered, never mind dismissed. As it happens, he received an unsatisfactory response on the telephone. But once he wrote in, and a Chairman looked at it and appreciated that there was, as was clearly the case, simply an erroneous reference to the second case number, the obvious course would have been for the Tribunal to have made the necessary correction, simply sending a further copy of the first page with the incorrect case number deleted, under cover of a certificate of correction.

[10] However that is not what occurred in this case. What occurred in this case was that the certificate of correction was in the terms which I have quoted, which positively deleted the entirety of the reasons, and substituted an entirely fresh judgment. In those circumstances, the consequence, in my judgment, is that that meant that there was a complete substitution of a fresh Judgment, and that time ran from the promulgation of the new Reasons, i.e. the date of the certificate of correction substituting those new Reasons; alternatively, in any event, that there was sufficient doubt as to that, caused by the way in which the Employment Tribunal chose to issue its certificate or correction, that such would be a ground for an extension of time by the Appellant in this case."

1. In the present circumstances it matters not that the only difference between Decision 1 and Decision 2 is the change of date from 9 April 2011 to 9 May 2011 as the date on which the Reasons were sent to the parties. Decision 2 is not a correction to Decision 1 in the form required by rule 37(1). It is an entirely fresh judgment. Decision 2 which was sent to the parties on 12 May 2011 contains the entirety of the judgment of the Employment Tribunal. In these circumstances the certificate of correction dated 5 July 2011 cannot have the effect of correcting Decision 1. It follows, in my view, that time began to run for service of the Notice of Appeal from the date Decision 2 was sent to the parties. Accordingly the Notice of Appeal which the EAT accepted on 23 June 2011 was in time.

1. If contrary, to my view, the Notice of Appeal was out of time, in my judgment time should be extended in what I consider to be the exceptional circumstances of the present case.

1. Mr Menon referred me to the well-known principles set out in United Arab Emirates v Abdelghafar [1995] IRLR 243 in support of his contention that time should not be extended. He submitted that the Appellant, through his solicitors, had left it to the last minute (day 39 of 42) to attempt to lodge the Notice of Appeal and had then taken insufficient steps to ensure it was properly served.

1. Mr Cohen, for his part, referred me to the passage in the judgment of Judge McMullen QC in Muschett v Hounslow LBC [2009] ICR 424 where at paragraph 5(viii) he said:

"In tribunals at first instance the fault of a legal adviser to enter proceedings in time should not be visited on the claimants, for otherwise they would be a windfall: see Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419. While this rule does not apply directly in the Employment Appeal Tribunal, it is a factor which, when combined with others, might contribute to the exercise of discretion."

1. I accept Mr Cohen's submission that in the present case what makes the circumstances exceptional is not just that the Appellant was not at fault, but, having received the notification of successful delivery to the EAT of the Notice of Appeal, it is difficult to see that the Appellant's legal advisers were at fault. Whether or not the receipt was from the EAT, the Appellant's legal advisers were, in my view, entitled to assume that the Notice of Appeal had been properly served on the EAT.

1. In my judgment for the reasons that I have given the Notice of Appeal was served in time, alternatively time should be extended. Accordingly this appeal is allowed.