Appeal No. UKEAT/0421/05/CK & UKEAT/0591/05/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2005

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
(SITTING ALONE)

MR P METCALFE 	APPELLANT

CYGNET HEALTH CARE LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR KEVIN McNERNEY
(Representative)
Harrogate Citizens Advice Bureau
Victoria Park House
18 Victoria Avenue
Harrogate
North Yorkshire HG1 5QY	
For the Respondent	MISS LUCY BONE
(of Counsel)
Instructed by:
Croner Consulting Litigation Department
Wolters Kluwer (UK) Ltd 
Cronor House
Wheatfield Way
Hinckley LE10 1YG

SUMMARY

Practice & Procedure:  Application/Claim; Time Limits: Reasonable Practicability 

Consignia v Sealy makes it clear that the ‘escape route’ for a last minute claimant is available if the claim form is posted on a Thursday when the three months expire on a Saturday: the 2-day period posting rule excludes Sundays but not Saturdays.. 

THE HONOURABLE MR JUSTICE BURTON

1.	This has been the hearing of an appeal by Mr Metcalfe, the Claimant, in the Employment Tribunal at Leeds from a judgment, and a subsequent refusal of a review of that judgment, that his claim for unfair dismissal and damages for breach of contract was out of time. 

2.	No credit redounds to Mr Metcalfe or those advising him for having left the putting of his claim to the Leeds Tribunal so late in the very generous three month period that the issue now before the Employment Tribunal came to arise at all. But the “escape route” to which I referred in Initial Electronic Security Systems v Avdic [2005] IRLR 671 is available to a claimant who is scrambling to get in a claim at the very end of the time limit if, in fact, he or she succeeds in getting it in at the 24th hour. If that 24th hour is missed, then the question as to whether it was reasonably practicable to bring the claim within the three month period will enable and require a Tribunal to look at the entire period and ask itself why it was not possible for the claimant to have got the claim in well before the expiry of that period. If, however, he or she is in time, then that investigation will not be necessary.

3.	In this case, the Claimant alleges that he can avail himself of that escape route and thus was in time. The issue arises in this way. It is common ground that the Originating Application was posted to the Employment Tribunal on the Thursday before the expiry of the three month period at midnight on the Saturday 12 March 2005. In fact, there was a delay in the Post Office and it did not arrive until the Monday. It may possibly have been that it could have arrived on the Saturday – no evidence appears to have been adduced specifically in this regard – but this particular Employment Tribunal office (as, I suspect, many, if not all, such offices) does not have a letter box and has no method of accepting post (no doubt since the introduction of security measures) on a Saturday. If the claim had arrived in fact on the Friday, then the Claimant would have been in time. By arriving on the Monday, on the face of it, the claim was out of time and the Tribunal so found. 

4.	However, at least on the review (and it has not been necessary to distinguish for the purposes of this appeal between the original hearing and the review hearing), the issue was considered of the deemed posting rule, which was raised and formulated, bindingly upon Employment Tribunals and upon this Appeal Tribunal, in Consignia v Sealy [2002] ICR 1193. Notwithstanding that, so far as affects the Civil Procedure Rules (which were being drawn upon by analogy in Consignia), the reasoning in Consignia was concluded to be wrong in the subsequent Court of Appeal decision in Anderton v Clwyd CC [2002] 1 WLR 3174, the decision in Consignia itself related to the construction and application of the Employment Tribunal Rules; and the authority therefore remains binding upon Employment Tribunals as I have subsequently found in Coldridge v HM Prison Service [2005] ICR para 7 Recent Points xxii otherwise unreported (UKEAT/0728/04 & 0729/04).  

5.	It is, therefore, to Consignia to which we must look for the answer in this case. Miss Bone has referred to an earlier decision of this Appeal Tribunal in St Basil Centre v McCrossan [1991] IRLR 455 (a judgment of Wood P) but that decision, although referred to in the judgment of Hart J who gave the lead judgment in Consignia, has plainly been overtaken and, so far as necessary, overruled by the Court of Appeal decision in Consignia. The most important judgment, with respect to the other judges, in Consignia is, as has been subsequently recognised, that of Brooke LJ. 

6.	In order to support her case in opposition to the Claimant’s appeal put forward by Mr McNerney today, Miss Lucy Bone, who has argued the matter valiantly on behalf of the Respondent, Cygnet Health Care Ltd (also Respondent to this appeal), has relied upon the mention by Brooke LJ in paragraph 29 of his judgment of CPR Rule 2.8. In fact, it was Brooke LJ’s reference by analogy to CPR 2.8 which was found to be erroneous by the subsequent Court of Appeal in Anderton, and the basis upon which Anderton parted company from Brooke LJ in its subsequent binding interpretation of the Civil Procedure Rules; but it is plain that the reference by Brooke LJ to CPR 6.7 and 2.8 was part of his block-building in his judgment, in which he laid down guidance for interpretation of the Employment Tribunal Rules. So, as I have indicated, the fact that he may have been wrong in relation to this interpretation of the CPR would not, of itself, endanger his conclusions in relation to the Employment Tribunal Rules, and I have so found in Coldridge.

7.	Nevertheless, Miss Bone submits that the reference to CPR, and in particular CPR 2.8, in paragraph 29 of his judgment, is central to his conclusion. Paragraph 29 reads as follows:
“CPR Part 6 has introduced into the conduct of civil litigation in this country a clear set of principles governing the service of documents by post. Documents may be served by first class post (CPR 6.2(1)(b)). If a document is served by post, it is deemed to be served on the second day after it was posted (CPR 6.7(1)). Saturdays, Sundays, bank holidays, Christmas Day and Good Friday are excluded from this computation (CPR 2.8)”.
He then continues by referring to Godwin v Swindon Borough Council [2002] 1 WLR 997 which is not relevant to this consideration. He then, in paragraph 30, says as follows:
“So far as tribunals are concerned, if we are moving towards a regime in which there is a unified tribunal service along the lines recommended by Sir Andrew Leggatt in his recent report, it would appear desirable that there should be a unified regime for the service of documents of the same simplicity as that which is now available to the courts”
and in paragraph 31, he sets out very helpful guidance, which has been followed by employment tribunals subsequently, and rightly so, as I found in Consignia, which begins:
“Until a simpler regime is introduced, the following guidance may be helpful”. 

8.	Miss Bone points to the inclusion of Saturdays as being excluded from the computation, as it is described by Brooke LJ, in paragraph 29. She submits that paragraph 29 is the governing paragraph in his judgment, and that, consequently, the fact that in his guidance the exclusion of Saturdays disappears must be an error by the learned Lord Justice, and should lead to our concluding that paragraph 31 is subsidiary to paragraph 29. I cannot and do not accept that submission. It is quite clear, as I have indicated, that he was using the CPR as part of his building blocks, and by analogy to his thinking. If, in fact, it is intended to submit that CPR 2.8 should, in some way, be of significance, notwithstanding the fact that it may well be that his interpretation of 2.8 was wrong, then not only is there in 2.8 matter which could assist Miss Bone, namely 2.8(4) which is the clause which plainly, at that stage, Brooke LJ had in mind which provides that:
“where the specified period [for doing any act] is five days or less and includes a Saturday or Sunday or a Bank Holiday, Christmas Day or Good Friday, that day does not count” 
but there is also a subparagraph 2.8(5) which provides, so far as the High Court is concerned, that:
 “when the period specified … for doing any act at the Court Office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the Court Office is open.”
If that latter rule of the CPR were apt, then that would determine the case definitively in favour of the Claimant in this case. 

9.	But it is quite plain that we are not here interpreting or applying the Civil Procedure Rules which operate in the High Court. We are dealing with the ET Rules, under the express guidance of Brooke LJ, and what is quite plain, to my mind, is that paragraph 29 is not the central paragraph of his judgment, but that it is simply a recital of what he saw to be significant aspects of the CPR before he then turned to give the guidance, in the terms to which I have referred, applicable in employment tribunals.

10.	It is perhaps of some significance that in the case in issue, namely Consignia itself, service on Saturday was positively in play and one notes that the question being raised by Hart J in his judgment was as follows:
“22. The question therefore resolves into this: did the tribunal have evidence before it on which it could conclude that the respondent had posted a letter which in the ordinary course of post could reasonably have been expected to arrive on the Saturday?”
It was therefore very much in the mind of all the judges in that case that Saturday was a relevant day on which service could take place. 

11.	Against that background, I turn to his guidance in paragraph 31 and what appears to me to be particularly significant is the verb which he uses in order to explain what it is he is doing by reference to the Civil Procedure Rules, namely the verb “adapt”. What he says in paragraph 31(4) is as follows:
“If the letter is sent by first class post, it is now legitimate to adapt the approach contained in CPR 6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday, being days when post is not normally delivered)”.
Miss Bone has to submit and, under pressure, did, that the word “Saturdays” has in error been omitted by Brooke LJ from that parenthesis in that subparagraph. It is quite plain to me, particularly given the factual context in which their Lordships were operating in Consignia, that that is not the case. In any event, post is normally delivered on a Saturday. The issue that would arise would be if a particular employment tribunal office or, indeed, every employment tribunal office would not accept that delivery, and that would have needed special consideration and was not given it by Brooke LJ. It is quite plain to me that he was adapting what he saw to be the approach in the CPR, but including Saturday, as being a posting day, for the purposes of employment tribunals. If there was any doubt about that, the matter is put wholly beyond doubt by subparagraph 31(6):
“If a form is date-stamped on a Monday by a tribunal office so as to be outside a three-month period which ends on the Saturday or Sunday [and that I interpose is exactly what has happened in this case] it will be open to a tribunal to find as a fact that it was posted by first-class post not later than the Thursday and arrived on the Saturday”.
That is exactly what the Chairman, at any rate on the review hearing, was invited to do in this case and declined to do because he felt he was unable to do so in law. In my judgment, that subparagraph of Brooke LJ’s guidance is determinative of this appeal. Miss Bone is only able to repeat her submission that, in some way, paragraph 29 overrides what is there said, and that it might be “open to the Tribunal to find” such fact, but that it would not in fact lead the Tribunal on to reach the conclusion that the application was nevertheless in time. It is quite clear to me that that is the opposite of what Brooke LJ is saying in 31(6). He is saying that a Tribunal can, if satisfied that a letter was posted by first class post not later than the Thursday, find that it arrived on the Saturday by operation of the deemed posting rule and if so, in such case it would be in time. That is what this Tribunal ought to have found and, in my judgment, that determines this appeal. In those circumstances, this claim was in time and the decision of the Tribunal that it was not must be reversed. In those circumstances, the appeal is allowed.