Woodward v Abbey National plc; J P Garrett Electrical Ltd v Cotton

EAT: Burton J (President): 26 July 2005

In the first case, the claimant's notice of appeal, from an employment tribunal decision rejecting her claim of sex discrimination, was recorded by the Employment Appeal Tribunal's fax receipt log as having been received before 4 p m on the last day of the 42-day period for lodging an appeal prescribed by rule 3 of the Employment Appeal Tribunal Rules 1993, but transmission of the ancillary documents required, by para 2.1 of the Practice Direction (Employment Appeal Tribunal: Procedure) 2004, to be lodged with the notice of appeal was not completed until after 4 p m.
In the second case, in which employers' appealed from a tribunal decision upholding the claimant's minimum wage claim, receipt of the appeal documents was recorded by the fax log at the appeal tribunal as having commenced at 4.01p m on the last day, although the appellants' solicitors had recorded the start of the transmission time as 3.59 p m.
The Registrar rejected both appeals as being out of time.

The appellants appealed, contending, inter alia, that they had relied on a decision of the Employment Appeal Tribunal that transmission of a notice of appeal which began before 4 p m was in time.

BURTON J (PRESIDENT) held:
The provision in para 1.8.2 of the Practice Direction (Employment Appeal Tribunal: Procedure) 2004 that "the complete document must be received by the EAT . . . by 4.00 p m" meant that, where an appeal was being lodged by fax on the final day of the 42-day period, the notice of appeal and all other documents required by para 2.1 of the Practice Direction had to be recorded by the automatic fax log at the Employment Appeal Tribunal as having been received prior to 4 p m. Although the appeals in both cases were, accordingly, out of time, an extension of time would be granted to the appellants on the exceptional basis that they were prejudiced by the change in interpretation of the relevant provision from a previous decision of the Employment Appeal Tribunal [Clark v Midland Packaging Ltd [2005] 2 All ER 266], on which they were able to rely.

The appeals were allowed.

Appearances: Stuart Ritchie (Russell-Cooke) for the claimant; and Richard Powell (DLA Piper Rudnick Gray Cary, Birmingham) for the employers in the first appeal. Damian Brown (Martin Cray & Co, Brighton) for the employers in the second appeal; the claimant in the second appeal did not appear and was not represented.