When the time for an appeal begins after a corrected tribunal judgment (Hargreaves v Evolve Housing + Support)

If an employment tribunal judgment is corrected under rule 69 of the ET Rules 2013, the date that the 42-day time period begins to run for an appeal remains the date stated in the original judgment unless the corrected decision is by way of substitution or replacement of the original judgment in its entirety, according to the Employment Appeal Tribunal (EAT).

Hargreaves v Evolve Housing + Support [2022] EAT 122

What are the practical implications of this judgment?

This judgment by His Honour Judge (HHJ) Auerbach is useful to parties considering an appeal against a judgment that has been corrected under the slip rule of rule 69 of the ET Rules 2013. It confirms that the time limit for an appeal to be lodged remains 42 days from the date of the original judgment, unless the corrected decision entirely substitutes and/or replaces the original judgment (in which case the 42 days will run from the date of the new substituted judgment).

Parties should also note the following guidance to tribunals and parties given by HHJ Auerbach in this judgment in relation to rule 69 (which may or may not be implemented by tribunals):

• issuing a new decision by way of substitution for, and replacement of, the old decision would not ordinarily be an appropriate course to take when the rule 69 power is exercised; and indeed ordinarily it would be the wrong course to take
• accordingly, 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
• whatever mechanism is used, the re-issued copy of the decision should make clear on its face that it has been issued because the correction power under rule 69 has been exercised; and the issuing of a certificate to that effect may also assist to spell out and make clear that that is what has happened
• the continued use of a warning alerting parties to the fact that the date from which time begins to run for appeal and reconsideration purposes is not affected by the exercise of the rule 69 power is desirable
• it is not appropriate, when the rule 69 power is exercised, for the tribunal to issue a further standard letter giving guidance on the judgment and referring to the judgment booklet for a second time. The tribunal should send out that letter accompanying the sending out of the original decision. In all events, any further letter that is sent out with the corrected copy of the decision, making any reference to the possibility of appealing or seeking a reconsideration, should make clear that time for doing so still runs from the date of sending of the original decision.

Case details

• Court: Employment Appeal Tribunal
• Judge: His Honour Judge Auerbach
• Date of judgment: 4 August 2022

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