MR M MCFADYEN AND OTHERS v 1) PB RECOVERY LTD (2) BRIGHTSIDE GROUP PLC (3) SYNERGI PARTNERS LTD (4) DEBTS.CO.UK PLC [2009] UKEAT 0072_08_3107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0072_08_3107Case No Appeal No. UKEATS/0072/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR M MCFADYEN AND OTHERSAPPELLANT1) PB RECOVERY LTD (2) BRIGHTSIDE GROUP PLC (3) SYNERGI PARTNERS LTD (4) DEBTS.CO.UK PLCRESPONDENTS
Before
Lady SmithDate 31 July 2009
[1]APPEARANCES For the Appellants MR C BOURNE (of Counsel) Instructed by: Messrs McGrade & Co Solicitors Standard Buildings 94 Hope Street Glasgow G2 6QB For the First and Second Respondents For the Third and Fourth Respondents MS A STOBART (Advocate) Instructed by: Messrs Newlaw Solicitors LLP Ross House Scott Harbour Cardiff Bay Cardiff CF10 4PJ MR K FORREST (Advocate) Instructed by: Messrs Halliwells LLP 1 Threadneedle Street London EC2R 8AY SUMMARY Online presentation of claims. Claim initially presented to Bristol Tribunal office via the online system. Whether, where intention had actually been to present claims in Scotland and they were received at the Glasgow office after the time bar, they were in fact to be regarded as having been presented there on the same date as the Bristol presentation. The Employment Tribunal held that they were not and the EAT agreed. The Tribunal had not misapplied the principle in Tyne and Wear Autistic Society v Smith [2005] IRLR 336 . THE HONOURABLE LADY SMITH INTRODUCTION This is a claimants' appeal against the judgment of an Employment Tribunal sitting at Glasgow, Employment Judge Lucy Crone, registered on 20 October 2008, holding that their claims had not been presented timeously.[2]I will continue to refer to parties as claimants and respondents.[3]The claimants were represented by Mr Carruthers, Advocate, before the Tribunal and by Mr Bourne of counsel before me. The first and second respondents were represented by Ms Stobart, Advocate before the Tribunal and before me and the third and fourth respondents were represented by Mr Forrest, Advocate, before the Tribunal and before me. BACKGROUND[4]The claimants presented claims of unfair dismissal and seeking a protective award in respect of an alleged failure to inform and consult about a relevant transfer and about redundancy. In the light of the respondents' response, a pre hearing review was fixed to determine whether the claims had been lodged timeously.[5]Parties agreed the following facts:• The claimants' representative, Mr Carruthers, submitted an online claim form on 13 June.• Mr Carruthers completed box2.1 and2.2 of the claim form showing the name of the employer to be that of the first respondents and their address to be "21 St Thomas Street Bristol BS1 6JS".• Mr Carruthers did not complete box2.3 of the claim form which is not a "required field" for the online system. At the side of that box the following words appear in the form:
"If you worked at an address different from the one you have given at 2.2, please give the full address and postcode." • The claimants had all worked in Scotland prior to their dismissals. Mr Carruthers did not complete box 2.3 because he did not know the address in Scotland where they worked and also because it was not required information. • The online claim form was "received" on 13 June 2008 and "acknowledged" electronically by email which stated: "
This is an automatically generated Delivery Status Notification. Your message has been successfully relayed to the following recipients, but the requested delivery status notifications may not be generated by the destination." and there then followed: bristolet@tribunals.gsi.gov.uk. • The online claim form was sent on to the Bristol Employment Tribunal office. • On 16 June 2008, the claimants' solicitor discovered that the claims were being dealt with by the Bristol Employment Tribunal office. • The relevant time bar expired on 17 June 2008. • The claimants' solicitor emailed the Bristol Employment Tribunal office on 17 June 2008 in the following terms:
"Dear Sirs I refer to the above named multiple applications and to my telephone conversation with one of your advisers a few moments ago and write to confirm that Chris Craig wishes to withdraw his application forthwith. As these claims relate to breach of TUPE and he is now employed by a group company of the purchaser, he does not want to be associated with these claims in any way. I should be grateful to receive confirmation that his name will not appear on any papers to be served on the Respondents. I would also advise that all 10 (now 9) claimants were employed at the Glasgow office of PB Recovery Limited and we would therefore request that this case is remitted to the Glasgow Tribunal office to be heard." • The claim forms were put before an Employment Judge in Bristol on 19 June who instructed that they could not be accepted as the Employment Tribunal in England and Wales did not have jurisdiction. By letter dated 19 June 2008, the Bristol Employment Tribunal advised: "
I am returning your claim because it raises a matter which the Employment Tribunal in England and Wales has no jurisdiction to determine. You indicate in your letter dated 16 June 2008 that all claimants were employed in Scotland. The claims therefore come under Scottish law and the claims should be re-submitted to Glasgow. Accordingly Judge Harper has decided that the claims cannot be accepted and must be returned accordingly." • The claimants' solicitor received the letter from the Bristol Employment Tribunal office on 20 June 2008. She took no steps to apply for a review of that decision or to appeal it within 42 days. By letter dated 29 May 2009, an application was presented to the Employment Appeal Tribunal in London for an extension of time in which to enter a Notice of Appeal and that application was refused by order dated 24 July 2009. • The claimants' solicitor made contact with the Glasgow Employment Tribunal office and her email to them dated 20 June included the following: "Dear Sirs I refer to recent telephone conversations with Caroline of your office and note that this application submitted online on behalf of ten claimants on 13 June 2008 has been successfully recovered from your system. I further note that the application had been automatically forwarded to the Bristol Tribunal on submission given the main respondent's registered office address. …" • Employment Judge Crone notes that parties were agreed that the claim forms were retrieved from the IT system which is, presumably, an understanding drawn from what is recorded in the above email. No further agreement was reached (nor findings in fact made) regarding the electronic route or mechanism by means of which the Glasgow Employment Tribunal office obtained the claim forms.[6]It was also not disputed that it was relevant to consider the terms of the online form ET1 and the Employment Tribunal booklet entitled "Making a Claim to an Employment Tribunal", the terms of which also appear on the Employment Tribunal website.[7]Dealing firstly with the online form ET1, the main body of the form is identical to the hard copy form but the first online page contains the following information:
"Please Note: By law, your claim must be submitted using an approved form supplied by the Employment Tribunals Service, and you must provide the information marked with * and, if it is relevant, the information marked with a • (see 'information needed before a claim can be accepted') General Information: Once you have completed your form you can submit it securely on-line to the ETS. On-line forms are processed faster than those sent by post."
[8]Thus, the information marked "*" comes within the category of what, in online forms terms, is known as a "required field" the effect of which is that if it is not completed, the applicant will not be able move to the next stage on the website.[9]Paragraph 2 of the form is headed " Respondent's Details" . Paragraph 2.1 of the form is a required field. It states:
"Give the name of your employer or the organisation you are claiming against."
[10]Paragraph 2.2 is also a required field and indicates that the address, postcode and telephone number of the respondent stated in 2.1 requires to be given. Paragraph 2.3 is not a required field. It states:
"If you worked at an address different from the one you have given at 2.2 please give the full address and postcode."
[11]There then follow spaces for the address, postcode and telephone number relating to any such address.[12]In the booklet and notes to which I have referred, a section "Filling in the Form" begins at page 11. It uses the same symbols for required fields and other relevant information as on the form. In relation to part 2.2, it is shown as "2.2*" and the guidance given is:
"Give the respondent's full address, postcode and telephone number."
[13]So far as part 2.3 is concerned, the guidance given is:
"Give the full address and postcode of the place where you worked, or applied to work if this is different from the respondent's address you gave at 2.2."
[14]Thus, the way the form is structured, if 2.3 is left blank, the claimant is thereby stating that the address and postcode given in 2.2 were his normal workplace. The claimants in these cases left 2.3 blank. They, accordingly, stated in their forms ET1 that their workplaces were at 12, St Thomas Street, Bristol, BS1 6JS.[15]The significance of the place where a claimant worked is explained in a part of the form headed:
" Where to send your claim "
. It states:
"If you are using a paper copy of the form use the postcode for the place where you normally worked or where you applied to work to identify the tribunal office to which you should send your claim…In Scotland, all claims are initially processed by the Glasgow tribunal office and you should send your claim to that office. However, you may take your claim to the Aberdeen, Dundee or Edinburgh office if that is more convenient and they will forward it for you… Sending your claim to the wrong office may cause a delay. If you don't know where to send it, or do not know the postcode for the place where you worked, call our public enquiry line on 0845 795 9775. If you are submitting an online or downloadable pdf version of the form via our website it will be automatically sent to the correct office if you provide us with the correct postcode."
[16]It is plain that the postcode referred to in the part of that statement relating to online applications is the same as in the first section, namely, the postcode for the place where the claimant normally worked. Also, it makes it clear that if a claimant normally worked in Scotland then the form requires to be sent to the Glasgow office but that can be done by handing it in to one of the other Scottish Employment Tribunal offices from where it will be transmitted to Glasgow. So far as online Scottish applications are concerned, claimants are clearly told that, provided a Scottish postcode is given, they will be automatically be sent to the Glasgow office. So far as applications in respect of claimants who normally worked in England or Wales is concerned, claimants are clearly told that they will be directed to the Employment Tribunal office relating to the English or Welsh postcode that is given for the claimant's normal workplace. In the case of these forms ET1, that meant that they would be directed to the Bristol Employment Tribunal office.[17]What is also made clear is that the place of work determines the Employment Tribunal office at which the claim requires to be presented. Thus, in a case where part 2.3 is completed i.e. the place of work was a different address from the respondent's address specified in part 2.2, it is the postcode in 2.3 that will rule where the claim is directed, not the different postcode given in 2.2. THE TRIBUNAL'S JUDGMENT[18]In the light of the facts the Employment Judge concluded that the claim forms had been presented to the Bristol Employment Tribunal office, and that they had been rejected by that office and had not been presented to the Glasgow Employment Tribunal until 20 June. She had regard to the provisions of s.111 of the Employment Rights Act 1996 , rules 1, 2, and 3 in schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 , regulation 19 of the 2004 regulations and the judgment of this Tribunal in the case of Tyne and Wear v Smith [2005] IRLR 336 . The latter did not, she said, assist. Whilst it was authority for the proposition that an application is "presented to an Employment tribunal" for the purposes of s.111 of the 1996 Act when it is successfully submitted online that did not resolve the issue in this case. The problem in Tyne and Wear had been that the online form, for technical reasons, did not reach a Tribunal office at all until after the expiry of the time limit. Here the claims had been successfully presented. Here there was a fundamental jurisdictional issue which could not be sidestepped by having resort to the claim forms having been submitted online. Whilst the claimant did not have control over the operation of the online system a claimant did have control as to where the claim would be directed by it through the provision of information; it was reasonable to assume it would be presented to the Bristol Employment Tribunal office because the information provided by the claimants was that that was the address of the respondents. Further, the claims had been rejected by the Bristol Tribunal office on jurisdictional grounds. They could not then be regarded as having been presented in Glasgow on the Bristol presentation date. The claims ought to have been presented in Scotland.[19]The Tribunal also commented that Mr Carruthers, who completed the claim forms, as a legal representative, must have known that the proceedings did not relate to England and Wales and could be taken to have known that Scottish proceedings required to be presented to an Employment Tribunal office in Scotland. RELEVANT LAW[20]The starting point is s.111(1) of the Employment Rights Act 1996 which provides that a complaint may be presented to "an employment tribunal". Those provisions are reflected in the provisions of rule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which state that claims shall be brought by the claimant presenting "to an Employment Tribunal office" written details of the claim. Complaints are not presented to the Employment Tribunals Service, an executive agency of the Ministry of Justice which provides support to Employment Tribunals. They are presented to "an" Employment Tribunal of which there are a number both north and south of the border, each with its own administrative office.[21]On presentation, claims are considered in the particular Employment Tribunal office to which presentation is made and the relevant Secretary (or someone on his or her behalf) either accepts it or, if it is clear that the Employment Tribunal does not have power to consider it, passes it to an Employment Judge (see rule 3 of the Schedule 1 to the 2004 Regulations). One reason why it might be considered that there is no such power may be that the claim is being presented in the wrong jurisdiction. Jurisdiction is explained in regulation 19 of the 2004 Regulations, as explained below. Rule 3(7) provides that if the Employment Judge decided that a claim should not be accepted then it is treated as if it had not been received by the Secretary on that occasion. That is, its presentation is then regarded as a nullity, as never having taken place at all, which could have serious consequences depending on the application of the relevant time limits.[22]It is important, for the purposes of this case, to note that although for administrative purposes, the Employment Tribunal Service serves the whole of the United Kingdom, the England/Wales and Scotland jurisdictions are separate. The 2004 Regulations, promulgated under the Employment Tribunals Act 1996 clearly confirm that that is the position by(a) providing for there to be a President of the Employment Tribunals for England and Wales and a separate President of the Employment Tribunals for Scotland (Reg. 4),(b) empowering each President to determine, separately, the number of Employment Tribunals to be established in, on the one hand England and Wales and, on the other hand, Scotland and the location of those Tribunal offices (Reg. 5),(c) providing, by Reg 19(1) that an Employment Tribunal in England and Wales shall only have jurisdiction to deal with proceedings where, inter alia :
"(a) the Respondent …….resides or carries on business in England and Wales;" and that an Employment Tribunal in Scotland shall only have jurisdiction to deal with proceedings where inter alia : "(a) The Respondent ... resides or carries on business in Scotland; (b) The proceedings relate to a contract of employment the place of execution or performance of which is in Scotland…", (d) providing, in terms of rule 57 of the rules in Schedule 1 to the 2004 Regulations, for the President of the Employment Tribunals for England and Wales to be empowered to transfer any proceedings (i.e.

(e) providing, in rule 57(4), as follows: "

Where proceedings have been transferred under this rule, they shall be treated as if in all respects they had been presented to the Secretary by the claimant."[23]There being separate Secretaries for Employment Tribunals in England/Wales and Scotland (as is plain from the interpretation section of the Employment Tribunals Act and the interpretation section in the rules), the reference to Secretary in s.57(4) is to the relevant Secretary in the transferee jurisdiction. The need for the provisions of that subparagraph of rule 57 shows that presentation of a claim in England and Wales does not also constitute presentation in Scotland or vice versa .[24]Regarding the matter of online submission of claims, it is common ground that when a claim is submitted electronically, it is first transmitted to a host server. Thereafter, it is transmitted on to an Employment Tribunal office. The service which hosts the Employment Tribunal website serves the whole of the United Kingdom. The online submission of claims was the subject of discussion by this Tribunal in the case of Tyne and Wear Autistic Society v Smith [2005] IRLR 336 where a claim which had been submitted online reached the host server but never reached any particular Employment Tribunal office. Plainly, a significant time bar issue arose. At paragraph 26, having earlier noted that an originating application is validly presented only when it is received by the Employment Tribunal, HHJ Richardson said:
"In our judgment it is plain that the Employment Tribunals Service now holds out the facility for making an online application as a means whereby it will receive communications, specifically an originating application. It follows that an application is presented when it is successfully submitted on-line to the Employment Tribunal website in time, it matters not if it is forwarded by the website host to the Tribunal Office computer on a later date, or date stamped on a later date. Once successful submission has been achieved the complaint will have been presented even if there are subsequent problems within the computer of the website host, or within the computer of the tribunal office, or in communications between the two."
[25]That approach makes sense in the context of asking whether successful submission online is the equivalent of actual submission to the Employment Tribunal office for which the claim form was, according to the postcode specified, destined. What, however, HHJ Richardson did not have to address is the issue that arises in this case, namely whether, in a case where paragraph 2.3 of the ET1 has been left blank, successful submission online constitutes not only presentation via the host server to the Employment Tribunal office relevant to the postcode specified in paragraph 2.2 but constitutes effective and simultaneous presentation throughout the whole of the UK.[26]A separate issue also arose in the light of the particular facts of this case, namely whether the fact that the Glasgow Employment Tribunal "recovered" the forms from "the system" on 20 June showed that they were being held for the Glasgow office by the host server all along and that therefore, although they only reached Glasgow on 20 June, should be regarded as having been presented to that office on 13 June. THE APPEAL[27]For the claimants, Mr Bourne submitted that the Tribunal had erred. The claims should have been regarded as having been successfully submitted on 13 June 2008 because that was when they were received by the host server used by the Employment Tribunal Service. The host ought to have been regarded as thereafter holding the claims for all the Employment Tribunals in the United Kingdom, both England Wales and Scotland. That was a conclusion that a claimant was entitled to draw. The claim form did not provide that part 2.3 was a required field. It did not matter that the forms had not got to the Glasgow Tribunal Office until 20 June. They had accessed it from the system where it had first arrived on 13 June and presentation at Glasgow should then have been regarded as having been as at that date. Presentation online amounted to presentation in both jurisdictions; that was in accordance with the principles set out in the Tyne and Wear case. Mr Bourne also referred to the case of Initial Electronic Security Systems Ltd v Avdic [2005] IRLR 671 and the discussion at paragraph 12-13 to the effect that a claimant is entitled to assume that an email has arrived within a short time; if that was so then he could rely on the assumption that a claim form had been received within a short time.[28]Mr Bourne submitted that the knowledge of the claimant's legal representative was not relevant. It did not matter what he knew or ought to have known, the point was that when presented online, the claims were effectively presented for the whole of the UK and that was an end of matters.[29]For the first and second respondents, Ms Stobart presented the following submissions.[30]To comply with s.111 of the 1996 Act, a claim requires to be presented to "an" Employment Tribunal. That means it has to be presented to a particular Employment Tribunal office. It is evident from the claim form itself and also from the "Making a claim to an Employment Tribunal" booklet (the details of which are also available on the Employment Tribunal website), that presentation requires to be at the Employment Tribunal office relative to the place of work. There could be dual jurisdiction, given the terms of regulation 19 of the 2004 regulations but presentation of a claim required to be to the relevant Employment Tribunal office in the workplace jurisdiction. It was evident from the judgment in the Tyne and Wear case that, for online presentation to amount to effective presentation that onward transmission to a particular Tribunal office was envisaged. That was what had happened in this case. There was no glitch of the sort that occurred in Tyne and Wear. The claims had been the subject of successful onward transmission to the Bristol office. Whilst they would have been transmitted differently, to Glasgow, if part 2.3 had been completed with the respondents' Scottish address, that was not the fault of the Employment Tribunal Service. It was the fault of the claimants' adviser.[31]As regards the rejection of the claims by the Bristol Employment Tribunal, she submitted that the Employment Judge was correct to have taken that into account. The claimants were wrong to suggest that, in principle, the online host server could be regarded as receiving claim forms for all UK Employment Tribunal offices. There was no support for that proposition in the authorities. Receipt by the host server could be regarded as for the purpose of onward transmission to the appropriate office as identified by the specified workplace postcode but nothing more than that. The host could only hold the form for the appropriate office.[32]Regarding the arrival of the forms in Glasgow, Ms Stobart resisted the suggestion that the facts of the case showed that the online server had in fact been holding the forms for Scotland as well as England and Wales. Even if it kept copies it could not be inferred that that was for anything more than administrative convenience. The route whereby the forms had got to Glasgow was not identified. The appeal should be refused.[33]For the third and fourth respondents, Mr Forrest adopted Ms Stobart's submissions and added two of his own. Firstly, the claimants' approach was not consistent with the rules as set out in the 2004 regulations. He referred to rules 2 and 3(2), (3) and (7). Secondly, the claimants were wrong to suggest that the principle in Tyne and Wear had not been applied. There was a crucial difference in that, in that case, the claim form had not been transmitted onwards to any Tribunal office whereas here, there was no doubt that they had in fact been transmitted to Bristol. Discussion and Decision[34]It seems to me that resolution of the issue that arises can be approached in two ways. Both involve recognition of the fact that, for online presentation purposes, the Employment Tribunals utilise a host server. That host can be regarded as, to all intents and purposes, the agent for the various Employment Tribunal offices in the UK.[35]Firstly, matters can be considered by asking what, on the facts, can be concluded as being the instructions given by the Employment Tribunals to their host server agent. It seems to me to be plain from all the facts to which I have referred that they are to accept receipt of forms ET1 which have the required fields completed and to transmit them onwards to the Employment Tribunal office which is nearest to(a) in a case where only part 2.2 has been completed, the postcode stated there unless(b) part 2.3 has been completed, in which case to the postcode stated in that part. That being so, the host server can properly be regarded as holding the form ET1 for and on behalf of the Employment Tribunal office thus identified. Where the form has actually been transmitted onwards to that office, the host server agent's task is completed and nothing in any of the factual background whether drawn from the statute, the regulations, the rules or the guidance notes, suggests that the server will carry on holding the form, as such agent, after having delivered it to the particular office in question.[36]The question that then has to be addressed, looking at matters on this basis, is: can it be concluded that the host server has also been instructed, when it receives an ET1 to hold the form for any Tribunal office other than the one denoted by the declared postcode? I do not see how that can be so, given the indication of the importance that is afforded to the postcode of the place of work as identified in either part 2.2 or part 2.3 of the form and the absence of indication in any of the material to which I have referred, that the form will be so held. Separately, can it be concluded that the host server is generally holding the form for all Employment Tribunals in the UK? I cannot see that there is any basis for so holding. There is no indication of that being the intention of the Employment Tribunals at all.[37]Secondly, matters can be looked at from the point of view of what legitimate expectation a claimant might have as regards the position of the host server vis à vis his claim form. On the basis of the information available via the statutory provisions, the regulations, the rules and the guidance notes, I cannot, again, see that there is any basis for him expecting other than that his form will be delivered to the Employment Tribunal office which relates to the denoted postcode. There is no basis for him expecting that the form will also be held on behalf of any other office and no basis for him expecting that the form will continue to be held by the online server for any office other than the one indicated by the declared postcode, after it has been successfully delivered to that Employment Tribunal office.[38]I have considered whether the fact that the Glasgow Employment Tribunal office were said to have recovered the claimants' claim forms from "the system" on 20 June notwithstanding their earlier successful delivery to and rejection by the Bristol Employment Tribunal office should lead me to conclude differently. I am not persuaded that it should. No information was provided as to the basis on which it was able to do so. It is not even clear that it was a matter of direct recovery by them from the host server.[39]Separately, recognition requires to be given to the fact that presentation of a claim in England does not amount to presentation in Scotland. That is clear from the jurisdiction requirements of Reg.19, from the fact that even where there is dual jurisdiction, there has to be formal transfer between the jurisdictions under rule 57 and the fact that specific provision required to be made for treating a transferred claim as having been presented in the transferee jurisdiction on its original presentation date. The existence of such a system of separation of jurisdiction and recognition thereof points against it being appropriate to make the assumption that the host server holds all claims presented not only for the particular Employment Tribunal office identifiable via the postcode but generally for all Employment Tribunal offices in the other jurisdiction, which is what the claimants' submission seemed to be.[40]Accordingly, I agree with the respondents that, in these cases, the claims were presented to the host server, transmitted to the Bristol Employment Tribunal office, rejected by that office and, accordingly, in terms of rule3(7) then fell to be treated as if they had not been presented on 13 June at all. That is, I recognise, singularly unfortunate since it did appear in fact to have jurisdiction but that could have been addressed by means of a timeous application for review or appeal, neither of which occurred.[41]I am not, as I have indicated, persuaded that notwithstanding the nullification of the presentations by the Bristol office, the host server somehow still held them in abeyance for other Tribunal offices, including the Glasgow one, if subsequently required by them. Disposal[42]I will, accordingly, pronounce an order dismissing the appeals and upholding the judgment of the Employment Tribunal.