MR L J MOSSMAN v BRAY MANAGEMENT LTD [2004] UKEAT 0477_04_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0477_04_2012Case No Appeal No. UKEAT/0477/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L J MOSSMANAPPELLANTBRAY MANAGEMENT LTDRESPONDENT
Before
His Honour Judge McMullenDate 20 December 2004
[1]APPEARANCES For the Appellant No Appearance or Representation By or on Behalf of the Appellant For the Respondent No Appearance or Representation By or on Behalf of the Respondent SUMMARY Time Limits An electronic submission of an Originating Application on the last day of the 3 month period, which was never received by the ET, was out of time. It was reasonably practicable for it to have been presented within time. Suggestion given to ETS that the form should be amended, since it gave general assurance to the Claimant. HIS HONOUR JUDGE MCMULLEN QC The interesting point in this case is how a claim to an Employment Tribunal is presented, when it is done electronically. The judgment represents the view of all three members. We will refer to the parties as Applicant and Respondent. The Applicant had been represented by Ms T Trevett at the Employment Tribunal and she has submitted a Skeleton Argument to us and is content to rely on the papers.[2]The appeal arises from a decision of an Employment Tribunal sitting at Reading on 24 March registered with Extended Reasons on 1 April 2004. The essential issue before the Employment Tribunal where the Applicant did not attend was to decide whether his claim was presented on time. Section 111 of the Employment Rights Act 1996 requires a claim to be submitted within 3 months. It is common ground that the Applicant's employment was terminated on 30 th September 2003 and thus, a claim should have been presented to the Employment Tribunal by the end of 29 th December 2003.[3]That was a Monday and was an ordinary working day. The Applicant had seen Ms Trevett and shortly before Christmas it was decided by him that he would pursue a claim of unfair dismissal against the Respondent. Both agreed that the claim could be made electronically and both agreed that because of the Christmas period electronic communication would be the safer. The Applicant and Ms Trevett spoke on a number of occasions before and after Christmas and on 29 December finalisation was given to the claim. The claim was filled out and at 2.33 pm Ms Trevett pressed the send button. The Tribunal found that she had submitted this electronically at that time. It was not until 26 January 2004 that she telephoned and was told there was no record of it. The claim was put in short in thereafter.[4]The essential issue before the Employment Tribunal was to decide whether or not the claim had been presented. The Tribunal said this: 8. The Tribunal are entirely satisfied that the application was not presented to the Tribunal on or before 29 December 2003. The word "presented" must be given its commonsense and logical meaning, namely that the application is physically, in whatever format whether paper or electronic in readable format, before the Tribunal on or before the relevant date Whilst the Tribunal do not doubt Ms Trevett's evidence that she completed an application from electronically and submitted it to the Tribunal website for whatever reason it was not received." It then went on to decide that it would not be right to extend time. Thus, the Tribunal had no jurisdiction to deal with it.[5]The Applicant contends that the word presented must include what occurred in this case which was that the Applicant used the method of sending which was offered to her. She should not be responsible for the fact that it does not seem to have reached the relevant part of the Employment Tribunal website. It is suggested that the Tribunal does not warn parties that if the matter goes awry it will be the Applicant's responsibility. There is a strong sense of unfairness in Ms Trevett's argument, for it is contended that this young man was without doubt unfairly dismissed and the case should be heard.[6]The rules did not specifically deal at the time with electronic communication. A new point has been raised in the Skeleton Argument which relies upon wording in the form which says when you click on the submit button below, your completed form will be sent automatically to the appropriate Employment Tribunal office. We are disinclined to allow this point to be raised: see Kumchyk v Derby City Council 1978 ICR 1116 and the EAT's own jurisprudence following that, for it would require a view of the Employment Tribunal as to what was reasonable to be believed.[7]However, we can take a less technical approach because this paragraph should be read in conjunction with the following (which is at the very front of the form):
"Before completing this form on-line you should click here to read the accompanying guidance notes. Once you have read the notes you may find it useful to print a copy and have them to hand when completing the form. You are reminded that strict time limits apply to the date by which the Tribunal must receive your application and it is your responsibility to ensure the receipt within the appropriate time limit. It is not guaranteed that the Tribunal will receive your form on the same day as you submit it and you may wish to consider an alternative method of delivery if your application is time critical."
It appears that warning has been given to those who are engaged in last minute brinkmanship, that they must be sure that the claim has reached the Tribunal on time.[8]It seems to us that the Tribunal cannot be faulted when it says that the word presented means that something actually has to be delivered to the Employment Tribunal whether physically or in electronic form. If it does not arrive for whatever reason, the claim has not been presented. We would have sympathy with the Applicant if all that had appeared on the electronically generated form was the passage which he now relies upon, since the Tribunal seems to accept administratively that the clicking of the submit button constitutes an automatic sending to the Tribunal.[9]However, read in conjunction with the paragraph at the front of the form, that cannot give the security which is needed to such a person. Those who leave their applications to the very last minute run the risk that something will wrong. The sole issue for the Employment Tribunal was whether it was reasonably practicable for the claim to be submitted before 30 December 2003. A decision having been made near to Christmas, the claim could have been made a week or so before and it could have been made on 29 December itself by delivery of the form in person.[10]Our conclusion is that there is no error of law in the Tribunal's approach. However, the wording of the form could be made more explicit. It seems to us that there is some force in the suggestion that, since the Tribunal encouraged electronic communication and no other form should be submitted at the same time, and since it indicates to the Claimant that the pressing of the button will ensure that the matter is transmitted to the appropriate office, a receipt could be generated or some other method could be indicated, so that the Claimant would know what had happened.[11]In this case, the form indicated that there is no guarantee that pressing the submit button will mean that the form reaches the Tribunal on the same date and for that reason we have dismissed this appeal. But, thought could be given to the way in which the Tribunal responds to claims submitted electronically. The appeal is dismissed.