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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bost Logistics Ltd & Ors v. Eleode [2008] UKEAT 0013_08_2005 (20 May 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0013_08_2005.html Cite as: [2008] UKEAT 0013_08_2005, [2008] UKEAT 13_8_2005 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
BOST LOGISTICS LIMITED |
APPELLANT |
(2) MR A ROWBERRY (3) MR M SMITH (4) EXEL EUROPE LIMITED |
RESPONDENTS |
SYBERSOLVE SOLUTIONS LIMITED |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEAL FROM REGISTRAR’S ORDER
UKEATPA/0013/08/JOJ
For the Appellant | MR M WEST (Representative) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB |
For the 1st Respondent | MR R BELL (Solicitor) Messrs Kerwoods Solicitors 7 Church Road Redditch B97 4AD |
For the 2nd & 3rd Respondents | MR P EDWARDS (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors No 1 Snow Hill Plaza St Chad's Queensway Birmingham B4 6JG |
For the 4th Respondent | MR T WRAGG (Solicitor) Messrs Eversheds LLP Solicitors Cloth Hall Court Infirmary Street Leeds West Yorkshire LS1 2JB |
UKEATPA/0179/08/LA
For the Appellant | MR S KENDRIDE (Manager of Sybersolve Solutions Ltd) Sybersolve Solutions Ltd 3rd Floor Threshold House of Lords Shepherds Bush Green London W12 8TX |
For the Respondent | written representations |
SUMMARY
PRACTICE AND PROCEDURE: Time for appealing
The law and practice on out of time appeals described in Muschett EAT were accepted to be correct. The application in Consignia v Sealy CA of the two-day postal rule in CPR6.7 to the Employment Tribunal's "not reasonably practicable" jurisdiction does not be extend to the 42-day time limit for a Notice of Appeal in the EAT. CPR6.7 is an irrebuttable deeming provision. Different considerations apply to first instance and appellate jurisdictions where EAT R35(3) applies. After hearing live evidence, a Notice of Appeal posted on day 40, arriving on day 43, and a Notice of Appeal arriving at the Employment Tribunal on day 39 and the EAT on day 54, were out of time and discretion would not be exercised.
HIS HONOUR JUDGE McMULLEN QC
The legislation
The facts relating to Bost
"A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table – "
For first class post, it is the second day after it was posted ie day 3. He also considered that he was entitled to rely on the assumption set out in EAT Rule 35(3):
"Every document served by post shall be assumed, in the absence of evidence to the contrary, to have been delivered in the normal course of the post."
The facts relating to Sybersolve
The legal principles
"31. Until a simpler regime is introduced, the following guidance may be helpful:
(1) Section 111(2) of the Employment Rights Act 1996 speaks of 'presenting' a complaint to a tribunal. It is now well established that a complaint is 'presented' when it arrives at the Central Office of Employment Tribunals or an Office of the Tribunals ('the Office').
(2) If a complainant or his/her agent proves that it was impossible to present a complaint in this way before the end of the time prescribed by section 111(2)(a) – for example because the Office was found to be locked at a weekend and it did not have a letter-box – then it will be possible to argue that it was not reasonably practicable for the complaint to be presented within the prescribed period.
(3) If a complainant chooses to present a complaint by sending it by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post (see, by analogy, section 7 of the Interpretation Act 1978).
(4) If the letter is sent by first class post, it is now legitimate to adapt the approach contained in CPR 6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday, being days when post is not normally delivered).
(5) If the letter does not arrive at the time when it would be expected to arrive in the ordinary course of post, but is unexpectedly delayed, a tribunal may conclude that it was not reasonably practicable for the complaint to be presented within the prescribed period.
(6) If a form is date-stamped on a Monday by a Tribunal Office so as to be outside a three-month period which ends on the Saturday or Sunday, it will be open to a tribunal to find as a fact that it was posted by first-class post not later than the Thursday and arrived on the Saturday, alternatively to extend time as a matter of discretion if satisfied that the letter was posted by first class post not later than the Thursday.
(7) This regime does not allow for any unusual subjective expectation, whether based on inside knowledge of the postal system or on lay experience of what happens in practice, to the effect that a letter posted by first class post may arrive earlier than the second day (excluding Sundays etc: see (4) above) after it is posted. The 'normal and expected' result of posting a letter must be objectively, not subjectively, assessed and it is that the letter will arrive at its destination in the ordinary course of post. As the present case shows, a complainant knows that he/she is taking a risk if the complaint is posted by first class post on the day before the guillotine falls, and it would be absurd to hold that it was not reasonably practicable for it to be presented in time if it arrives in the ordinary course of post on the second day after it was posted. Nothing unexpected will have occurred. The post will have taken its usual course."
Conclusions