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Does a corrected judgment ‘reset’ the appeal clock?

Does a corrected judgment ‘reset’ the appeal clock?

In Reverend J G Hargreaves v Evolve Housing + Support [2022 EAT 122], the Employment Appeal Tribunal has clarified when time for instituting an appeal starts to run if the Employment Tribunal has sent out a corrected judgment

By Catherine Urquhart

Employment Tribunals have the power to send out a corrected judgment if the original judgment contains a minor error or typographical mistake. The power, known colloquially as the ‘slip rule’, is found in rule 69 of Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Previously it was found in paragraph 37 of the 2004 version of the regulations.

In Hargreaves, heard in January but only published on 4 August 2022, the Claimant brought a number of discrimination claims and the Tribunal sent out its original judgment, upholding some claims and dismissing others, on 18 May 2020. As the Employment Appeal Tribunal (EAT) gives parties 42 days to lodge an appeal, the deadline for bringing an appeal expired on 30 June 2020.

However, on 11 June 2020, the Tribunal of its own accord sent out a corrected judgment, correcting a mistake in the original judgment.

The Claimant appealed against the judgment on three grounds, lodging his appeal on 21 July 2020. As the appeal was, on the face of it, out of time by 21 days, the EAT Registrar invited submissions from the parties.

Hargreaves argued that the appeal had been brought in time on the basis that the clock had been ‘reset’ by the corrected judgment and thus the 42 days should be counted from 11 June. He relied on the ‘confusing’ correspondence from the Tribunal that had accompanied the corrected judgment. Whenever the Tribunal sends out a judgment, it also sends the parties a covering letter in standard form. This tells the parties that ‘An application to appeal must generally be made within 42 days of the date the decision was sent to you…’.

Such a letter was sent out with the original judgment on 18 May. But it was also sent out with the corrected judgment on 11 June, along with a ‘Certificate of Correction’ which stated, under the heading ‘Important note to parties’, that ‘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...’.

The Registrar accepted that these two documents appeared contradictory, and so this was one of the rare occasions when she would exercise her discretion to extend time to lodge the appeal.

The Respondent appealed against the Registrar’s decision and the matter came before HHJ Auerbach.

The Learned Judge considered the case law regarding time limits for appeal, in circumstances where a corrected judgment had been sent out. Under the 2004 Regulations, the EAT had dealt with this on three occasions: Aziz-Mir v Sainsbury’s Supermarket plc [2006] 12 WLUK 424, Patel v South Tyneside Council and Ors [2011] 11 WLUK 761, and Kennaugh v Lloyd-Jones [2008] 5 WLUK 322. In all three cases, the Tribunal had substituted an entirely fresh judgment, rather than simply correcting the original judgment. In such cases, the EAT held, time started to run from the date of the correction, rather than the date of the original judgment.

In what appears to be the only case on this subject under the 2013 Regulations, Majekodunmi v City Facilities Management Ltd UK (UKEATPA/0157/15/DA), the EAT held that the mere correction of a typographical error under rule 69 does not give rise to a new date from which the time to appeal starts running – it would only do so if there were a substantive change to the judgment (in which case, arguably, the correct procedure would not be to issue a certificate of correction but to reconsider the judgment). 

In Hargreaves, HHJ Auerbach held that the Certificate of Correction had made clear that the clock was not reset. The corrected judgment was not a fresh, substituted judgment (as in Aziz-Mir, for example), but the old version with a correction. In these circumstances, time continues to run from the date of the original judgment, not from the date of the corrected judgment:

… ordinarily, if the rule 69 power is exercised in the correct way, there will be no substitution of the old decision by the new and the date from which time runs for any challenge by way of appeal or application for reconsideration will not be affected” (paragraph 61).

HHJ Auerbach suggested that, to avoid this confusion recurring, the tribunal administration should not provide the standard covering letter with a corrected judgment, as that letter will already have been sent out with the original decision. Any further letter that is sent out with the corrected copy of the decision should make clear that the time for appealing or seeking a reconsideration still runs from the date of sending of the original decision (paragraph 63).  

Given the confusion that had arisen, on the facts of Hargreaves the Judge held that although the corrected judgment had not reset the clock, he would exercise his discretion on this occasion to allow the appeal to proceed. However, this was a somewhat hollow victory for the Claimant as all his grounds of appeal were shortly afterwards rejected at the sift stage as having no reasonable prospects of success.

Catherine Urquhart appeared for Evolve Housing + Support, instructed by Keely Rushmore of Keystone Law.

The judgment can be viewed here.

Catherine Urquhart

Call 2010

Catherine Urquhart

15.08.2022


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