Claimants whose judgments were sent to the wrong address have been allowed to appeal after the court ruled they should not be punished for someone else’s mistake.
Lord Justice Underhill, sitting in the Court of Appeal in Rana v London Borough of Ealing & Anor, said the two appellants should have the chance to appeal decisions of the Employment Tribunal – despite missing the 42-day deadline to respond from the date on which written reasons were sent.
In both cases, the tribunal had sent written reasons to the address of solicitors who no longer represented the claimants, with subsequent delays in the copies finding their way to the right recipient.
The separate claimants had appealed the decision of Her Honour Judge Eady QC who had refused to extend the 42-day deadline, concluding that a judgment and written reasons were still sent to a party even if sent to an incorrect address.
Underhill LJ agreed the appeals against the tribunal decisions were not made in time, but ruled the court could use its discretion to extend time. He said: ‘The tribunal has made a mistake, as regards a matter of fundamental importance, and the guiding principle should be that the party affected by that mistake should not be put in a worse position than if it had done its job properly.’
In one case, the claimant had lost her claim for unfair dismissal and disability discrimination and was, in theory, sent the written judgment on 28 April 2015. She had to write on five occasions to the tribunal and make numerous phone calls before finally receiving a copy of the judgment by email on 4 June. She filed her appeal on 15 July – 39 days out of time assuming the judgment had been sent to the correct address originally.
In the second case, the 42-day deadline was met by the appellant, but key documents were missing from the notice of appeal and only supplied four days out of time.
The judge stressed that appellants still had to show the judgment had been mis-sent and explain the circumstances in which it was eventually received. But the judge disagreed with the implication of HHJ Eady that the two appellants should have acted quicker once they realised the mistakes that had been made.
Although all three sitting judges agreed to allow the appeals and grant the extensions necessary, Lord Justice McCombe argued that both applications to appeal should be considered as made in time because the documents were not properly sent.
‘One does not "send" something to "John Doe" by sending it to "Richard Roe". One does not "send" a document to a party to litigation by sending it to the representative of another party,’ said the judge. ‘It seems to me to be wrong to say one sends something to someone by sending it to someone else.’