Gdynia American Shipping Lines (London) Ltd v Chelminski

This is an appeal from a decision of the Employment Appeal Tribunal (“EAT”), given on 16 December 2003 by His Honour Judge Peter Clark, in which he upheld a decision of the Registrar of the EAT made on 29 October 2003. The Registrar held that a purported appeal to the EAT was out of time. He also refused an extension of the time within which the appeal could be brought. The effect of the decision was that Gdynia American Shipping Lines (London) Ltd (“the Appellants”) could not pursue an appeal against a decision of an Employment Tribunal held at London Central, and promulgated on 19 June 2003, striking out the Appellants’ notice of appearance to a claim by Mrs A Chelminski (“the Respondent”). Having struck out the notice of appearance, the Employment Tribunal made a declaration that an equality clause was to be implied in the Respondent’s contract of employment with the Appellants. The Employment Tribunal also ordered the Appellants to pay the Respondent arrears of pay of £45,425 plus interest.

The one point now pursued in this appeal is whether the appeal to the EAT was instituted outside the time limit provided by rule 3(3)(a) of the EAT Rules 1993 (“the 1993 Rules”), which governs the present case. That depends on the construction of paragraph 3(3)(a) which provides that “the period within which an appeal to the Appeal Tribunal may be instituted” is:

“42 days from the date on which extended written reasons for the decision or order of the Employment Tribunal were sent to the Appellant.”

The extended written reasons for the decision of the Employment Tribunal were put into the post on 19 June 2003. It is conceded on behalf of the Appellants that, on that date, staff at the Employment Tribunal complied with rule 12(5) and rule 23(4) of the Employment Tribunal Rules 2001 (“the 2001 Rules”). Rule 12(5) provides what shall be sent to the parties and rule 23(4) provides that, subject to paragraph (6), which has no application in the present case, all notices and documents required by the rules to be sent or given to a party “may be sent by post”. (Power to “deliver” to or at specified addresses is also conferred.) The rules plainly authorise the Employment Tribunal to send the relevant documents by post.

While a notice of appeal was filed on 30 July 2003, it is accepted that it was not valid because it was not accompanied by the decision and extended reasons of the Employment Tribunal, as required by rule 3(1) of the 1993 Rules. A valid notice of appeal was filed, and an appeal thereby instituted, on 1 August 2003. If the expression “date sent” in rule 3(3) of the 1993 Rules means the date when the decision was put into the post by the Employment Tribunal, time expired on 31 July 2003. If it means the date of deemed delivery by post, time did not expire until 2 August 2003.

On behalf of the Appellants, Mr McGrath submits that “date sent” means the date of deemed delivery by post. It is submitted that since the sending of the relevant documents by post is authorised, section 7 of the Interpretation Act 1978 is engaged. Section 7 provides:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

The word “Act” in section 7, by virtue of section 23 of the 1978 Act, includes subordinate legislation such as the 1993 Rules.

Mr McGrath submits that Section 7 makes it clear that delivery is bound up with the process of sending a document. A document sent is deemed to be sent on the date that it is deemed to be delivered. The meaning of the word “sent” in rule 3(3)(a) of the 1993 Rules is determined by Section 7 of the 1978 Act. The effect of the section is that the “date sent” is the date when the documents would have been delivered in the ordinary course of post, that is 21 June 2003. If time runs from that date, an appeal validly lodged on 1 August 2003 was in time.

There are conflicting decisions on the point in the EAT. Mr McGrath relies on the statement of the EAT, Popplewell J presdiding, in T&D Transport (Portsmouth) Limited v Limburn [1987] ICR 696 at 699, that the words in Section 7 indicate that the receipt of the document is inevitably bound up with the sending of it. That was, however, a case in which it was the date of receipt of a notice which was under consideration.

Counsel also relies on the decision of the EAT, Keene J presiding, in Immigration Advisory Service v Oommen [1997] ICR 683 at 691 A-F. The case was decided on different Rules but the same point arose and the submission now made by Mr McGrath was accepted. In Scotford v Smith Kline Beecham [2002] ICR 264, the EAT, Mr Recorder Langstaff QC presiding, reached the same conclusion.

For the Respondent, Ms Cunningham submits that Section 7 of the 1978 Act does not operate in the manner advocated by Mr McGrath. The section begins with two subordinate clauses which merely set out when the later operative clauses are to operate. The operative clauses merely set out the circumstances in which and the time at which “service is deemed to be effected”. That does not affect the meaning of the word “sent” and “sent” cannot be read as “received”.

In my judgment, the word “sent” in rule 3(3) of the 1993 Rules is to be given its ordinary meaning and that is unaffected by section 7 of the 1978 Act. That section is concerned with the circumstances in which service is deemed to be effected and when, in such circumstances, it is effected. Section 7 is engaged to the extent that it is relevant if a decision were to be required as to when service is effected. That raises a different question from the question when the document was sent and the rules provide that it is the date of sending from which time begins to run. The deeming provisions of section 7 operate when service, or sending, by post is authorised but they operate to determine the date on which service is deemed to be effected and have no bearing on the issue in this case, which is when the documents were sent. The section does not bear upon the date of sending, which is the date provided by the Rules as the date from which time is calculated. It would have been relevant in the present case if rule 3(3)(a) had provided that time ran from the date when service was effected.

Morison J was in my judgment correct when he stated in Hammersmith & Fulham LBC v Ladejobi [1999] ICR 673 at 678 that “there is no room for the application of Section 7 to the interpretation of rule 3(2). Rule 3(2) is clear. It is the date when the document was sent to the Appellant that time starts to run”. Burton J was also correct in reaching the same conclusion in Sian v Abbey National plc [2004] ICR 55.

Mr McGrath fairly comments that Morison J made an inappropriate reference to an immaterial rule and that he placed reliance in his reasoning on the words “unless the contrary intention appears” in section 7 of the 1978 Act.

Having stated the words cited above, Morison J went on to say that “if section 7 were capable of applying to rule 3(2), its seems to be plain that a contrary intention does appear from the structure of the rules”. In my judgment, the expression “unless the contrary intention appears” does not assist the argument. The “contrary intention” contemplated in the section is an intention in relation to whether and when “service is deemed to be effected”. The present issue is not as to whether and when service is deemed to be effected but the different issue as to when documents were “sent”. The purpose of Section 7 is such that it is not necessary to look for a contrary intention in present circumstances and that further stage in the reasoning of the Morison J was in my view unnecessary, as was his reference to a different rule. The fact he embarked on further reasoning does not affect the soundness of his conclusion cited above.

The EAT Practice Direction on this point, that of 2002, not surprisingly reflects the view of a former and the present Presidents of the EAT, Morison J and Burton J.

I agree with Counsel for both parties that the issue is to be determined as one of statutory construction and is not affected by considerations of convenience. Burton J has, however, in Sian, at paragraph 15, stated reasons why the conclusion which he rightly preferred is administratively the more sensible and convenient.

Immigration Advisory Service v Oommen and Scotford v Smith Kline Beecham were in my view wrongly decided on this point. I would dismiss this appeal.

I agree.

I also agree.