Patel v South Tyneside Council and others
Mr Patel brought an employment tribunal claim against South Tyneside Council. The tribunal decision was signed and sent to the parties on 9 May 2011 (decision 1) but, because of a clerical error, was wrongly dated as sent to the parties on 9 April. A second decision (decision 2) was sent to the parties on 12 May 2011, with the correct date of 9 May 2011.
On 17 June 2011, Mr Patel’s representatives emailed the appeal notice to the Employment Appeal Tribunal (EAT) and received a successful delivery notification. On 22 June, the representatives contacted the EAT and were informed that no appeal notice had been received.
They resubmitted the appeal notice after hours on 22 June, so that it was recorded as having been lodged on 23 June. On 5 July, the employment tribunal signed and dated a certificate of correction to decision 1, amending the date. The EAT refused to accept the appeal notice as being out of time, as it was lodged more than 42 days after the date the decision was sent to the parties. Mr Patel appealed.
The EAT held that the appeal notice of 17 June was in time. It had been emailed to an email address of the EAT and had been successfully delivered, even if it did not appear in the EAT inbox. What mattered was that it had “hit” the EAT server, which was evidenced by the successful delivery notification. In this respect, the EAT followed the recent decision in Yellow Pages Sales Ltd v Davie EATS/0017/11, which concerned a malfunctioning fax machine. The EAT in that case held that a document had been served on the tribunal where it was successfully transmitted to the tribunal fax machine, even if it did not print out.
Decision 2 was not a correction of decision 1 but an entirely fresh judgment and the time to appeal the new decision ran from the date on which it was sent to the parties. There was in fact no need to amend the date on decision 1 but, if it did need to be corrected, this should have been done by certificate of correction. Accordingly, the appeal notice lodged on 23 June was also in time, as time ran from the date decision 2 was sent to the parties.
In any event, if either appeal notice was out of time, time should be extended in the exceptional circumstances of this case. Mr Patel’s advisers were entitled to assume that the appeal notice had been properly served, having received notification of successful delivery.
The main implication of this case is that, even if the deadline for an appeal has passed, it is not safe for the other party to assume that no appeal has been lodged, even if the EAT confirms that it has not received one.
Equally, when communicating with the tribunal or EAT by electronic means, it is not safe to assume that notification of successful delivery necessarily means that the tribunal has actually “received” the communication.
This places parties and representatives in a difficult position, as they are discouraged by the tribunals from routinely telephoning to confirm receipt. It is vital that copies are kept of successful delivery notifications in anticipation of a subsequent challenge. In addition, parties should make efforts not to leave the submission of documents until the last minute so that there is a window for resubmission if there are difficulties with transmission.
Helen Hall, employment partner, DLA Piper
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