Labour & European Law Review Weekly Issue 464 06 April 2016
The rules governing the Appeal Tribunal state that a Notice of Appeal will not be validly “served” unless the accompanying documentation is “attached” to it. In Majekodunmi v City Facilities Management UK Ltd and ors, the Employment Appeal Tribunal (EAT) held that, as the accompanying documents were not attached to an e-mail but simply had a link to Dropbox, the Notice of Appeal was not properly served.
Mr Majekodunmi brought various claims against City Facilities and one of their employees, as well as Asda and four of their employees. The tribunal sent its reserved judgment, striking out the claims, on 13 January 2015. It then sent out a certificate of correction because of a typographical error on 28 January, which made clear that the 42-day time limit for lodging an appeal still ran from the date of the original judgment. Mr Majekodunmi therefore had to lodge his appeal by 24 February.
On 23 February, his representative tried to lodge an appeal by email which she sent at 15.52, attaching a copy of the tribunal judgment as well as the EAT form and grounds of appeal. She sent a further email that day at 16.04 which contained a link to the various forms which could only be accessed by clicking on a link entitled “OneDrive-2015-02-23.zip”, which stated that: “Helen Iya-Nya shared from Dropbox”. The EAT responded by email the same day stating that it could not access documents from external drives/shared locations and asked for the documentation to be re-sent as attachments to an email. At that stage, there was still time to do so as the time for an appeal did not expire until 16.00 the following day. However, the documents were not submitted in a valid format until 4 and 6 March. The EAT confirmed by letter dated 31 March that a valid appeal had been received on 6 March 2015, but that it was ten days out of time.
Mr Majekodunmi submitted a second Notice of Appeal on 11 March which he argued was in time because it was sent within 42 days of the date of the corrected judgment. The Registrar replied on 14 April, explaining that re-sending the Notice of Appeal did not mean that two appeals had been lodged. There was only one and that was ten days out of time.
However, the registrar said she would treat Mr Majekodunmi as having made an application to extend the time to lodge an appeal. On 2 June 2015 she ruled that no valid appeal had been lodged and there were no grounds to extend the time limit.
Mr Majekodunmi appealed on two grounds. First that the time limit for lodging the appeal ran from the date the judgment was reissued under cover of the certificate of correction. His second argument was that the Notice of Appeal had been validly lodged at 16.04. The further documents had been sent in zipped files which was allowed by the EAT guidance and so hit the EAT server in time.
Dismissing the appeal, the EAT held that the certificate of correction made clear that it did not change the date for lodging an appeal, the fact that the judge sent out a copy of the corrected Judgment and Reasons to all the parties did not alter that. The Notice of Appeal and all the requisite documentation therefore had to be lodged with the EAT by 4.00pm on 24 February 2015.
The EAT also rejected the argument that the documentation had been served properly in accordance with the EAT guidance. Although there was no dispute that the documents were sent in zipped files, access to the internet was necessary to locate the documents on the cloud. This involved going to a separate location which meant they had not hit the EAT’s server in time.
In giving judgment the EAT judge indicated that whilst it was not a matter she was to consider as part of this appeal, it may that the EAT’s guidance is reconsidered in the future given the developments in IT and internet use.