Majekodunmi v City Facilities Management UK Ltd & Ors (Practice and Procedure: Time for appealing) [2015] UKEAT 0157_15

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Majekodunmi v City Facilities Management UK Ltd & Ors (Practice and Procedure: Time for appealing) [2015] UKEAT 0157_15_2509 (25 September 2015) URL: http://www.bailii.org/uk/cases/UKEAT/2015/0157_15_2509.html Cite as: [2015] UKEAT 0157_15_2509, [2015] UKEAT 157_15_2509, [2016] ICR D5

HER HONOUR JUDGE EADY QC

Introduction

1. I refer to the parties as the Claimant and the Respondents, as below. This is the Claimant’s appeal against the Registrar’s order, seal dated 2 June 2015, declaring his proposed appeal out of time and declining to extend time. The underlying appeal is against a Judgment of the Watford Employment Tribunal (Employment Judge Manley, sitting alone on 19 December 2014; “the ET”), striking out various of the Claimant’s claims of race discrimination and his claims of victimisation, public interest disclosure, failure to pay National Minimum Wage, health and safety, rest periods and annual leave. Claims against individually named Respondents were also struck out, for non-compliance with the ACAS Early Conciliation procedure. Ms Iya-Nya, a law graduate, represented the Claimant before the ET as she does today. Before the ET, the Respondents were separately represented by solicitor and counsel, but today both appear by Mr Stones of counsel, who did not appear below.

The Relevant Factual and Procedural Background

2. The Claimant brought two ET claims relevant to this appeal. There were two corporate Respondents - City Facilities and Asda - and five individually named Respondents (one employee of City Facilities and four employees of Asda). There was a Preliminary Hearing before the ET on 19 December 2014. The ET’s Reserved Judgment subsequent to that Preliminary Hearing was sent to the parties on 13 January 2015. In its formal record of the appearances and representation at the hearing the ET stated that the Claimant was represented by “Ms H E Iya-Nya”. By certificate of correction sent to the parties on 28 January 2015 the Judgment was corrected so that the Claimant’s representative was identified as “Ms H Iya-Nya”. At the bottom of the certificate of correction was included the following statement:

“Important note to parties:

Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing.”

3. On 24 February 2015, the 42-day time limit for appealing against the ET’s Judgment expired. On 23 February 2015, the Claimant’s representative attempted to institute an appeal to the EAT, initially by email sent at 15.52. At that point, she emailed over a copy of the ET’s Judgment, as a PDF attachment, and also attached the EAT form 1 and grounds of appeal. Then by a further email, timed at 16.04 (which would be treated as having been received the following day), the Claimant’s representative submitted a link to the ET1s and ET3s, documents she says were available by clicking on the link contained within her email entitled “OneDrive-2015-02-23.zip”, which stated that: “Helen Iya-Nya shared from Dropbox”.

4. At 17.47 the same day, the EAT responded by email stating that it could not get documents from external drives/shared locations and asking that the documentation be re-sent as attachments to an email. At that stage, there was still time to do so; the time for an appeal did not expire until 16.00 the following day.

5. That response was consistent with the EAT’s guidance to parties as set out in the leaflet T440, which is available on the HMCTS website. On page 2, it states as follows:

“If you use email, the size of any one email, including attachments, should not exceed 10MB. If you attach scanned documents you should check that they do not exceed that size. If they do, you may need to rescan them at lower quality and/or send them in more than one email. Attachments must be in a format which can be read by Word 2003, Adobe Reader 11 or Windows Picture and Fax Viewer (e.g. .doc, .rtf, .pdf or .jpg). The EAT cannot accept files in OpenDocument format (e.g. .odt). Files may be zipped in a format which can be unzipped by Windows Explorer XP (SP3). All documents lodged electronically must be sent to the EAT as attachments to emails. A document is not validly lodged by sending us a link to its location.”

6. There was no response from the Claimant’s representative to this.

7. The sending of the Notice of Appeal itself, which had been submitted by email at 15.52, was treated as having been received on 23 February 2015. It was, however, incomplete; specifically, the ET1s and ET3s in the two ET cases that were the subject of the Judgment against which the Claimant sought to appeal had not been included. The appeal was thus treated as having not been properly instituted, a matter drawn to the Claimant’s attention by letter from the EAT of 3 March 2015. It was the Claimant’s case that the documents in question were contained in the Dropbox zip file, to which there was a link in Ms Iya-Nya’s second email of 23 February 2015. Subsequently, the ET1s and ET3s were validly submitted to the EAT on, respectively, 4 and 6 March 2015.

8. By letter of 31 March 2015, the EAT confirmed that the appeal was treated as validly received on 6 March 2015; as such, it was ten days out of time.

9. In the meantime, on 11 March 2015, the Claimant submitted what his representative describes as a second Notice of Appeal. He says that Notice of Appeal was in time because it was lodged within 42 days from the date the corrected ET Judgment was sent out to the parties. The EAT has not accepted any second Appeal. By letter of 14 April 2015, the Registrar explained that re-sending the Notice of Appeal did not give rise to two appeals; there was only one, that which was validly constituted ten days out of time. She said the EAT would treat the Claimant as having made an application for an extension of time, a course to which the Claimant’s representative voiced strong objection, maintaining no such extension was necessary because the appeal had been lodged in time.

10. By Order seal dated 2 June 2015, the Registrar ruled that no valid appeal had been lodged in time and there were no grounds for an extension of the limit. The Claimant challenges the first part of that ruling and thus the matter comes before me on this appeal.

Submissions

The Claimant’s Case

11. The Claimant’s case is twofold. First, the re-issuing of the Judgment, which occurred under cover of the certificate of correction, generated a new right of appeal and a new date from which that right of appeal started to run; thus, the second Notice of Appeal was in time and the Registrar was wrong to rule otherwise. Second, even if that were not correct, the Claimant’s first appeal was validly served when it hit the EAT server. That had been done by 16.04 on 23 February 2015: the two emails included all the relevant documents, the second including the ET1s and ET3s as the contents of the Dropbox zip file. The appeal was thus lodged in time; any issues the EAT might have had opening those files or documents did not affect that.

12. Addressing me on the second of those arguments first, Ms Iya-Nya contended that the EAT was not being required to go to a separate website by her email sent at 16.04 on 23 February 2015; it simply had to click on the link, and that would reveal the relevant documentation. In truth, this was an attachment to the email; it did not require the EAT to access any external website but attached a zip file that merely needed the EAT to click on the highlighted title. That would open the zip and the EAT could thus access all of the relevant documents. By her second email on 23 February, Ms Iya-Nya says she sent files that could be unzipped by Windows Explorer XP, thus meeting the EAT’s guidance as set out in T440. She did not seek to take issue with the content or requirements of that guidance; she says the Claimant complied with it. She further observes that she uses Dropbox in County Court proceedings and cannot see why there should be any objection to its use in the EAT.

13. An email was merely a carrier. When it hit the server with attachments it mattered not whether those attachments are in the form of Word files or PDFs attached to the email or in the form of links to documents in the cloud; the procedure to access the link was the same. The files were hosted by Dropbox because they were so extensive. That was not the same as going to an external website. It was unduly onerous to expect an Appellant to send in documents under cover of many separate emails because of the restriction on the size of file attachments. Moreover, it had been recognised that sometimes time limits must be overturned in order to respect a party’s right to a fair hearing, see Pomiechowski v Poland [2012] UKSC 20.

14. As for the first ground of challenge, Ms Iya-Nya contends that the caveat at the bottom of the certificate of correction merely related to the certificate itself not to the re-issued Judgment and Reasons. Rule 69 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules 2013”) dealt with the correction of clerical mistakes and accidental slips. It required only that the Employment Judge had to sign the corrected document; she did not have to date it. By choosing to do so the Employment Judge had triggered a new date from when time ran for an appeal.

The Respondent’s Case

15. The Respondents also first addressed me on the Claimant’s initial attempt to lodge the Notice of Appeal. Time expired at 4.00pm on 24 February 2015. The Claimant had sent in two emails. If those had validly attached all the requisite documentation the appeal would have been treated as in time, albeit that the second email would have been treated as received on 24 February 2015. The issue was whether the documents were sent in accordance with the guidance. There was a difference between a document attached to an email and a document accessed via a link. Although the Claimant had used a zip file in some form (and EAT procedures allowed documents to be sent in zipped form), the important question was whether the zip file in question could be accessed as an attachment or could only via a link. The first was permissible, the second not.

16. Ms Iya-Nya was saying this file was within her email, but that was not the complete picture: receiving an email with an attachment allows the attachment to be opened merely by clicking on the icon. In this case the attachment could only be accessed by clicking on a blue hyperlink that would take the recipient to a different location in the cloud. In the case of the first email and the PDF and Word attachments, having downloaded the email, the EAT, using Outlook, could access the attachments when offline; the attachments had hit the EAT’s server - they had been lodged at the EAT. That was not so with the link in the second email. Anyone wishing to access the documents referred to in that email would need online access to the other location, Ms Iya-Nya’s Dropbox. The zip file of documents was not attached to the email; it was merely accessible on the internet: it had not been served. The documents had not “hit” the EAT’s server (Patel v South Tyneside Council & Ors UKEATPA/0917/11).

17. The response from the employee of the EAT on 23 February 2015 made clear the distinction: the zip file was not attached, it was only accessible from another external drive or other location. As the Claimant accepted, the EAT’s guidance (T440) was consistent with the EAT Rules and also with the Civil Procedure Rules in this regard.

18. As for the Claimant’s reliance on Pomiechowski, that did not assist. That held that the absolute time limit in extradition proceedings could give rise to an injustice and a breach of rights under Article 6 of the European Convention, but the EAT had the discretion to extend time and that could be seen as meeting the test of exceptional circumstances (per Lord Mance JSC); as to which see Adesina v Nursing & Midwifery Council [2013] EWCA Civ 818.

19. The Claimant had expressly not sought to pursue an application for an extension of time. In any event there was no unfairness. The EAT had informed the Claimant’s representative of the problem in sufficient time for the requisite documents to be lodged the following day. There had been no explanation for the failure to do so.

20. On the second point of challenge there was only one appeal. The Claimant could not have been under any misapprehension as to the effect of the re-issue of the Judgment; the certificate of correction made that clear. It did not change the position so far as the time for an appeal was concerned. As for the effect of a correction of a Judgment as a matter of law, see the EAT’s Judgment in Aziz-Mir v Sainsbury’s Supermarket plc UKEATPA/0537/06, where Burton J had ruled that in that case time had restarted because there had been a complete deletion and substitution of the Judgment, but he expressly recognised that, “in the ordinary course of a correction, such a correction does not make time run afresh”.

The Approach

21. The 42-day time limit for serving an appeal against a Judgment of an ET is both generous and clear. It is also made abundantly clear by the Employment Appeal Tribunal Rules 1993 (as amended) and the EAT Practice Direction 2013 as to what has to be lodged in order for an appeal to be validly constituted. Where the appeal is from a Judgment of the ET, that must include “a copy of any claim and response in the proceedings before the Tribunal”. A Notice of Appeal will not be validly lodged without that additional documentation, see the EAT Rules 1993 Rule 3(1)(a)-(c) and the Practice Direction, paragraph 3.1, which provides that the accompanying documentation, including the ET1s and ET3s, “must be attached”.

22. It is important to recognise that both the Notice of Appeal and the additional documents must be served on the EAT within the relevant time limit, see Kanapathiar v London Borough of Harrow [2003] IRLR 571, per Burton J and the subsequent Practice Statement of 3 February 2005, in which it was explicitly stated that an appeal including all the requisite documentation that was not lodged within 42 days would be out of time. See also O’Cathail v Transport for London [2012] IRLR 1011, where the failure to lodge the ET’s Judgment and Reasons until one day after the time limit had expired was held to be fatal even though the Notice of Appeal had itself been served in time; the requirement to serve all necessary accompanying documentation within the relevant time limit being “as strictly enforced as the obligation to lodge a notice of appeal form in time” (per Mummery LJ at paragraph 25). More specifically, service of documents upon the EAT by email requires that the email and all requisite documentation must have hit the EAT’s servers by the relevant date and time (per Supperstone J in the EAT in Patel v South Tyneside Council and Ors UKEATPA/0917/11).

23. I have already set out the guidance the EAT provides to parties in this respect in its leaflet T440. In that regard the EAT is regulating its own procedure. It is doing so in conformity with its Rules (which speak of instituting an appeal by “serving” the prescribed documentation, see Rule 3(1)) and the Practice Direction (which again lists the documents that must be “attached” to the Notice of Appeal, see paragraph 3.1); indeed, no one in this case suggests otherwise. Sending a link to where a required document is located is neither serving nor attaching that document: the document has not been served on the EAT; the EAT has - in virtual terms - been directed to where it might be found.

24. Although the Claimant through Ms Iya-Nya, has expressly declined to apply for an extension of time, the Registrar treated such an application to be implicit; I do likewise. Notwithstanding the generous six week period for lodging an appeal in the EAT, there is a discretion to extend time as provided by Rule 37 of the EAT Rules. The approach that will be adopted in deciding whether or not to exercise that discretion is well rehearsed in the case law, as summarised at paragraph 5.7 of the Practice Direction. Indeed, paragraph 5.7 signposts the guidance laid down by Mummery J (as he then was) in Abdelghafar (subsequently approved, for example, by the Court of Appeal in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111). As set out in Abdelghafar, the relevant questions in an application for an extension of time in this context are as follows:

“… (a) what is the explanation for the default? (b) does it provide a good excuse for the default? (3) are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?”

25. An explanation in this regard may not be sufficient unless it explains why the Notice of Appeal was not lodged throughout the entirety of the period (Muschett v London Borough of Hounslow [2009] ICR 424 EAT). As was observed in Abdelghafar, “An extension of time is an indulgence requested from the court by a party in default”. As for when time starts to run, unless so substantive as to effectively replace the original Judgment, in the normal course a correction will not mean that time starts to run afresh (see per Burton J in Aziz-Mir).

Discussion and Conclusions

26. The starting point must be to determine the date from when time began to run. Was it from the date of the initial ET Judgment and Reasons, or the reissued Judgment sent out under cover of the certificate of correction? If the latter, it is common ground that the requisite documents were with the EAT within the extended time limit that would allow.

27. Rule 69 of Schedule 1 of the ET Rules 2013 provides as follows:

“An Employment Judge may at any time correct any clerical mistake or other accidental slip or omission in any order, judgment or other document produced by a Tribunal. If such a correction is made, any published version of the document shall also be corrected. If any document is corrected under this rule, a copy of the corrected version, signed by the Judge, shall be sent to all the parties.”

28. The Claimant says the Employment Judge thus only had to sign the corrected document; she did not have to date it. The Rule did not require her to re-date the reissued Judgment and by choosing to do so, the Employment Judge triggered a new date from when time ran for the appeal. Ms Iya-Nya further contends that the caveat at the bottom of the certificate of correction merely relates to the certificate itself not to the reissued Judgment and Reasons.

29. I disagree. The Judgment and Reasons were in this case reissued solely for the purpose of correcting a typographical error. No substantive change was made. The amendment could thus be made under the certificate of correction and required no other engagement by the ET. By doing that, however, the Employment Judge was obliged to correct the Reserved Judgment and Reasons, which in turn obliged her to send out a copy of the corrected Judgment and Reasons to all the parties. The Employment Judge did what was required of her and properly recorded on the corrected Judgment and Reasons the date those documents were being sent out to the parties. In so doing, however, it was made clear (by the certificate of correction) that this did not change the relevant date for the purpose of any appeal. The Employment Judge’s actions did not thereby gave rise to a new date for the purposes of an appeal, nor, should it be relevant, can I see that the Claimant would have been in any way misled by the course adopted here. The certificate of correction made the position very clear; it did not re-start the clock for the purposes of any appeal. It was clear that time ran from the original sending-out of the Judgment. The Notice of Appeal and all the requisite documentation thus had to be lodged with the EAT by 4.00pm on 24 February 2015.

30. That then takes me to the second question raised by the appeal, which depends on whether I accept the Claimant’s representative’s argument that she complied with the EAT’s guidance in terms of what she sent on 23 February 2015; she does not seek to argue that the guidance itself is incorrect.

31. Ms Iya-Nya says that she complied with the guidance because she sent files zipped in a format that could be unzipped by Windows Explorer XP. There is no dispute that the documents were sent in the form of a zip file; zipped files are just files that are compressed to make the entirety smaller in size, a zip file can thus contain many files. The issue is how that was then sent to the EAT.

32. Ms Iya-Nya sent the zip file using Dropbox, a file-hosting service operated by Dropbox Inc, which offers cloud storage, file synchronization, personal cloud and client software. In order to access the zip file sent by Ms Iya-Nya, there had to be access to the internet. Clicking on the link provided would then take the recipient of Ms Iya-Nya’s email to the cloud location where she had made the relevant documents available.

33. Was that serving those documents on the EAT? Not according to the EAT’s guidance, with which Ms Iya-Nya does not take issue. To access the documentation would require going to a separate location. It had not “hit” the EAT’s server as a standard attachment to an email would; it would not be available to the EAT absent internet access to its location in the cloud. Had the Claimant effectively “attached” the documents for the purposes of paragraph 3.1 of the EAT’s Practice Direction? I do not consider that he had. He (acting through Ms Iya-Nya) had provided a link to another location where the documents could be found; he had not actually attached those documents.

34. The way in which Ms Iya-Nya has argued this appeal means that must be an end of the matter. She expressly does not seek to contend that the EAT’s guidance is wrong in this respect; she says she complied with it. I do not accept that. Whether the EAT’s practice should be changed is not something that falls to me to consider given the way this appeal has been argued. It may be a point taken in the future. At that stage, it might be necessary to consider any security issues that might arise as well as other issues arising from the changing ways in which parties provide documentation given the developments in IT and internet usage. Those are, however, matters that do not properly arise before me today. At this stage, I am satisfied that the Claimant’s appeal was not validly served within the relevant time period.

35. Ms Iya-Nya also expressly does not ask that the potential injustice to her client be considered as an implied application to extend time (albeit that would be the answer to her reliance on Pomiechowski). In any event, in this case the EAT drew the problem to Ms Iya-Nya’s attention in sufficient time for her to serve the documents in question the following day still within the relevant time limit. She did not do so and has provided no explanation for that failure. Applying Abdelghafar, therefore, there is no explanation - let alone any good explanation - that might warrant the exceptional exercise of the EAT’s discretion to extend time.

36. For those reasons, I dismiss the appeal.

United Kingdom Employment Appeal Tribunal