Employment Appeal Tribunal Time Limits
Is a document delivered over a period of time ‘delivered’ when the delivery starts or when it is complete? The Employment Appeal Tribunal (EAT) recently had to consider this question.
An appeal to the EAT against a decision made by an Employment Tribunal must be lodged within 42 days after the decision is sent to the parties involved. The cut-off point, after which an appeal is judged to be out of time, is 4.00 p.m. on the 42nd day.
The 42-day time-limit is strictly applied, being regarded as a generous period as it is three times as long as that permitted for appeals to the Court of Appeal.
A recent case before the EAT dealt with the situation where the Notice of Appeal and other required documentation (21 pages in all) were sent by fax at the last minute on the 42nd day. One or two pages were faxed through before the 4.00 p.m. deadline but the sending fax machine recorded a time of 4.09 p.m. for successful completion of the entire transmission. It was clear, therefore, that not all of the documents – and possibly no more than the first one or two pages of the Notice of Appeal itself – could have been received by the EAT before 4.00 p.m. The EAT fax machine started to print the documents at 4.06 p.m., but it was accepted that the machine could have been busy at the time with the result that the documents would have been stored in its memory until the machine were free.
The judge sought to find parallels with the physical, as opposed to the electronic, delivery of such documents. He considered the situation where a courier hands over the first two or three pages of documentation at the EAT counter, at ten seconds before the deadline, only to discover that he has dropped some pages in the road and has to run back to get them. Common sense would suggest that if the document had started to be produced at the expiry of the deadline, then that should count as acceptable service of the document. He therefore concluded that when a Notice of Appeal is lodged by fax, the trigger point is when the transmission begins, not when it is completed or printed out at the receiving end. The appeal was therefore judged not to be out of time.
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