The time limits for lodging appeals in the Employment Appeal Tribunal (EAT) are usually strictly enforced. Where an appeal is from a judgment of an Employment Tribunal (ET), the Notice of Appeal and supporting documentation must be lodged within 42 days of the date on which the judgment was sent to the parties concerned. Rule 30(4) of the Employment Tribunal Rules states that ‘when written reasons are provided, the Secretary shall send a copy of the reasons to all the parties to the proceedings and record the date on which the reasons were sent. Written reasons shall be signed by the Chairman’.
In Tasneem v Dudley Group of Hospitals NHS Trust, the EAT held that whilst the effect of this rule is to create a strong presumption that a document was sent on the date recorded, such an inference can, in certain circumstances, be rebutted.
Mr Tasneem, a consultant surgeon, had claims he brought against the Dudley Group of Hospitals NHS Trust dismissed by the Birmingham ET. The ET’s judgment recorded that this was sent to the parties on 9 March 2009. It is common ground that ‘sending’ means delivery to the Post Office. This would mean that the latest time by which the Notice of Appeal could be filed would be 4.00pm on 20 April. Mr Tasneem did appeal against the ET’s decision, but the Notice of Appeal was rejected by the Registrar because it was received by the EAT on 22 April 2009.
Mr Tasneem claimed that he had received the ET’s judgment on 12 March 2009. He was not able to produce the original envelope but sought a finding from the EAT that, on the balance of probabilities, the judgment had been sent on 11 March and so his appeal was lodged within the time limit allowed. He lives within ten miles of the ET and the EAT offices in Birmingham and claimed that post within that distance usually arrives on the day after it is sent. He produced in evidence test letters that he had sent to himself, from the Post Office near the ET, showing the time they were stamped by the Post Office and when they were delivered. He had also spoken with the ET and was told there was no system in place that could confirm precisely when the judgment was sent.
The EAT found that although Mr Tasneem had adopted what it described as a ‘high-risk strategy’ by leaving it until the very end of the 42-day time limit before lodging his appeal, he had, on the balance of probabilities, succeeded in showing that the ET’s judgment was most likely posted the day before it was received. The evidence he produced in support of his contention had not been challenged, nor was any evidence provided by the Birmingham ET.
The EAT recognised that its ruling could lead to false claims that ET decisions were not sent on the date recorded and called on all ETs to have procedures in place to demonstrate that the date recorded on a document as the date on which it was sent is the date it was delivered to the Post Office, and to be able to provide evidence to this effect if requested to do so.