Appeal No.UKEAT/0652/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 December 2004

Before
HIS HONOUR JUDGE RICHARDSON
MS P TATLOW
MR S YEBOAH

TYNE AND WEAR AUSTIC SOCIETY	APPELLANT

MR JOHN SMITH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR S GOLDBERG
(of Counsel)
Instructed by:
Messrs Eversheds LLP Solicitors
Central Square South
Orchard Street
Newcastle upon Tyne
NE1 3XX	
For the Respondent	MR J K SMITH
(the Respondent in Person)	

SUMMARY

Practice and Procedure / Time Limits

Where an applicant uses the Employment Tribunal’s website to initiate a claim, his application is “presented” on the date when he successfully submits it to the website.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by the Tyne & Wear Autistic Society (hereafter “the Society”) against a Decision of the Employment Tribunal sitting in Newcastle, entered into the Register on 18 June 2004.  The Tribunal was considering whether an application by Mr Smith against the Society was presented in time.  The Tribunal unanimously concluded that it was. 

2.	Mr Smith presented his application to the Tribunal electronically, using the facilities provided on the Employment Tribunals Service’s website.  The principal issue raised by this appeal is whether the Tribunal was correct to conclude that Mr Smith’s application was presented when it successfully reached the service which hosted the website, or whether, as the Society contends, an application is presented only when the service which hosts the website forwards the application to the Employment Tribunal Office.  

3.	The Tribunal determined this issue in Mr Smith’s favour and therefore held that his application was received in time.  There is a subsidiary issue, for the Tribunal found that if (contrary to its main conclusion) the application was not received in time, it would not have had jurisdiction to entertain the claim.  Against this finding Mr Smith cross-appeals. 

The facts 

4.	Mr Smith was dismissed by the Society on 24 November 2003.  It is common ground that all his complaints were subject to a three month time limit beginning on that day, so that the limit expired on Monday 23 February 2004.

5.	Mr Smith was well aware of the time limit.  He left it until Friday 20 February to submit a claim.  This, the Tribunal found, was for two reasons.  Firstly, he was pursuing an internal appeal against his dismissal, which in the event was not resolved within the three month period.  Secondly, he was receiving treatment for stress, though not such serious stress as to prevent him working and taking steps to present a complaint to the Tribunal.

6.	On Friday 20 February Mr Smith went home to prepare and submit his application.  He had chosen to use the on-line facility for submitting an application because it appeared to him to be almost immediate.  He prepared the form.  He saved it.  He pressed the “submit” button.  The website would not allow him to submit because he had not completed all the mandatory fields.  He rectified the error.  He saved the form again.  He pressed the submit button again.

7.	In February 2004, at the end of the on-line form, close to the “submit” button, was the following wording:

“You should receive a written acknowledgment that your application has been received by the Tribunal within 5 working days.  If you have not received an acknowledgment within this time, you should contact the office dealing with your application for confirmation.”

When a form was submitted successfully to the host of the Tribunal’s website, the following message was transmitted back to the sender:

“Thank you.  Receipt if your application will be confirmed by the Tribunal Office dealing with your case.  If you do not receive an acknowledgment of your submitted application within one working day, please telephone the relevant office.”

8.	The Tribunal accepted that Mr Smith had not only pressed the submit button but also received that message.  Hence the Tribunal accepted that his electronically submitted form reached the host of the Employment Tribunals website on 20 February 2004.  The Tribunal also found that Mr Smith honestly and reasonably thought that he was dealing directly with the Employment Tribunals and that his application must have reached them.  There is no appeal against these findings, and there was ample justification for them.  Files and cookies kept within Mr Smith’s own computer, and telephone records which Mr Smith produced, certainly showed that he accessed the website on that day for a substantial period of time.

9.	The Tribunal also found, however, that the form he submitted never reached any particular office of the Employment Tribunal.  We shall return to explain how this happened. But it is convenient first to complete the story.

10.	Mr Smith did not receive any acknowledgment of his application, either within one working day (as the last message might suggest he should have) or within five working days (as the form itself might suggest).  He first made enquiry on Monday 8 March – the eleventh working day after he submitted the application.  It was discovered that there was no trace of the application.  He immediately dispatched another.  It was received at the Tribunal Office on 10 March 2004.  If that is the relevant date, it is 16 days out of time.

The Employment Tribunals website

11.	Prior to the hearing before the Tribunal, the Tribunal had sought information from the Employment Tribunals Service.  The Employment Tribunal Service has its own website and also is responsible for the Employment Tribunals website.  The Tribunal found as follows:

“…the Employment Tribunal Service has been prepared to accept originating applications presented via the Internet and has advertised that fact in the booklets which it produces.  This service is offered through its own website.  However, it is not readily apparent that this is effected through an e-mail service.  Also undeclared to the individual user is the fact that this service is not operated directly by the Tribunals but is hosted by Hyperlink Interactive (a part of the Cable & Wireless group), almost certainly as a result of a commercial agreement between that company and the Agency.  Having received on-line submissions, Hyperlink Interactive should transfer them to the Employment Tribunals Service where they are received both centrally in a mailbox within the Directorate and in the mailbox of the relevant regional office (determined automatically by the postcode provided by the sender for his or her workplace or at least former employer).  At the date with which this case was primarily concerned, Hyperlink Interactive was under instruction to purge its system of copies of website submissions after one day.”

12.	The Employment Tribunal Service could not explain with certainty why, if the application reached Hyperlink Interactive, it was not passed on to the Employment Tribunal Service.  But it pointed to two possibilities.  It might have been because Mr Smith’s e-mail address was not correctly formatted (though we observe that an e-mail address is not one of the fields which an applicant required to complete in the on-line form).  It might, however, have been because of an internet failure outside the control of Hyperlink Interactive or ETS.  At that time the Hyperlink Interactive website retained its copies of applications for only a day.  It was not possible to say for certain whether the application had been received or not. 

13.	We record that the Employment Tribunal Service said that by May 2004 the system had changed.  Additional checks had been put in place to monitor and validate on-line submissions so that it would be possible to say for certain whether an application had been received by the host.

The Tribunal’s Decision

14.	The Tribunal, after reciting the facts, considered the two principal cases which were cited to it: Sealy v Consignia plc [2002] 3 All ER 801 and Lang v Devon General Ltd [1987] ICR 4.  After considering these cases, on the principal issue before it, the Tribunal concluded:

“We came to the conclusion that, by virtue of the fact and nature of the agreement between them, receipt by Hyperlink Interactive amounted to presentation to the Employment Tribunal and thus that this originating application had been presented in time on Friday 20 February 2004.”

The Tribunal also went on to consider the position if, contrary to its primary finding, the application was not submitted until 10 March.  It said:

“We would have held, contrary to Mr Goldberg’s submissions, that it had not been reasonably practicable for the complaint to have been presented in time.  That would have been on the basis that the applicant genuinely and reasonably believed that he had presented his application on Friday 20 February 2004 and, give the on-screen message which he would have received, that it would not have been reasonably practicable for him to have been expected to contact the Tribunal in the absence of an acknowledgement until at least Tuesday 24 February 2004.  However, we would not have found that the application had then been presented within a reasonable period thereafter… The problem was the fact that he waited not one, 3 or 5 working days (as the on-screen messages advised him or at least as he believed they advised him) but until the 11th working day.  Notwithstanding the stress from which the applicant was suffering, there was no adequate explanation for the additional week.  On that basis, we would have held that we did not have jurisdiction to entertain a complaint.”

Submissions before us

15.	The Society founds its submissions on Sealy v Consignia plc [2002] 3 All ER 801.  In that case the last day of the three month period was a Sunday.  The Applicant sent his application by first class post on the Friday.  It was not received until the Tuesday.  The Tribunal, in its written Decision, expressed a finding that the employee had a reasonable expectation that the application would arrive on the Saturday.  It held that it was not reasonably practicable for the employee to have delivered it by the Sunday.  The Court of Appeal allowed the appeal, holding that there had been no evidence on which the Tribunal could find that there had been a reasonable expectation that the application would definitely arrive on the Saturday.  In his judgment, Brooke LJ contrasted the regime governing service of documents in the civil courts with that applicable to tribunals.  He set out guidance in seven principles.  Principle 1 reads:

“Section 111(2) of the Employment Rights Act 1996 speaks of “presenting” a complaint to a tribunal.  It is now well established that a complaint is “presented” when it arrives at the Central Office of Employment Tribunals or an Office of the Tribunals (“the Office”).”

Principle 2 covers the position where it is impossible to present an application, for example, because a tribunal office is locked at the weekend and has no letterbox.  Principles 3-7 deal with the position where an application is posted.  The principles are all directed to question whether an employee, whose application is received late, can legitimately argue that it was not reasonably practicable to present it in time.

16.	Mr Goldberg, on behalf of the Society, places emphasis on the first principle which we have quoted.  That principle, he submits, correctly states the effect of authorities in this area of practice.  Behind those authorities, he submits, lie two considerations.  Firstly, there should be certainty in the date of presentation.  Secondly, risk of failure in transmission of an application should lie on the person sending it; after all that person will be able to produce evidence of what took place.  He therefore submits that it was only when an application was actually received by an individual office, or perhaps the Central Office of Employment Tribunals, that it was “presented”.  Receipt by the Employment Tribunals website, hosted by a commercial organisation, was not sufficient.  

17.	We asked Mr Goldberg what the position would be if the application had been submitted on the Saturday and had been duly forwarded on at the tribunal office at a time when it was closed.  He submitted that it would be sufficient if it reached the tribunal’s mailbox.  We pointed out to him that often mailboxes are held by internet service providers at a location remote from the user of the mailbox, and only downloaded during office hours.  He submitted that as long as it was the tribunal’s e-mail box, as opposed to the website, it would suffice.  

18.	As regards the cross-appeal, he submitted that the Tribunal’s Decision contained no error of law and its conclusion was well within the range of options permissible to a tribunal considering a point such as this.

19.	Mr Smith today represented himself, but a Skeleton Argument had been prepared on his behalf by his solicitors and we have had regard to that Skeleton Argument, as well as hearing submissions by Mr Smith, which we invited him to make only in respect of the cross-appeal.  

20.	The argument on behalf of Mr Smith supports the Tribunal’s Decision.  The Tribunal relied in particular on the case of Lang v Devon General Ltd [1987] ICR 4.  In that case the employee’s time limit expired on a Sunday.  On Friday her application for compensation for unfair dismissal was sent to the Central Office of Industrial Tribunals.  Under an agreement between the Central Office and the Post Office, post received for delivery on Saturday, when the Central Office was closed, was held until Monday when the Office reopened.  The employee’s application was delivered on the Monday.  It is important to note that there was an express finding that, without the special arrangement, the application would have been delivered on the Saturday morning and would have been in time.  It was held that as a result of the special arrangement between the Central Office and the Post Office, the employee’s Originating Application was presented on Saturday 15 December.  

21.	The Employment Appeal Tribunal referred to Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179 but derived particular assistance from Hodgson v Armstrong [1967] 2QB 299.  A county court had a standing arrangement with the Post Office that all mail should be held and not delivered until Monday.  Without that general arrangement, a particular application would have been delivered on the Saturday, which would have been in time.  The majority of the Court of Appeal held that the application had been delivered in time.  Davies LJ said:

“…the county court were constituting the Post Office their bailees of the mail and accordingly it could rightly be said that the tenant’s application was made at the latest on the Saturday.”

The legislation

22.	It is not necessary to cite all the legislation applicable to Mr Smith’s different claims. It will suffice to cite the following.  Section 111(1) and (2) of the Employment Rights Act 1996 provides:

“111	(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.
	(2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal- 
(a)	before the end of the period of three months beginning with the effective date of termination, or 
(b)	within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

Section 7 of the Employment Tribunals Act 1996 provides:

“7	(1)  The Secretary of State may by regulations (“employment tribunal procedure regulations”) make such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals.
(2)  Proceedings before employment tribunals shall be instituted in accordance with employment tribunal procedure regulations.”

Turning to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, regulation 11(1) provides:

“Proceedings of tribunals
11	(1)  Subject to paragraphs (2) to (6), the rules in Schedule 1 shall apply in relation to all proceedings before a tribunal except where separate rules of procedure made under the provisions of any enactment are applicable.”

Schedule 1, paragraphs 1(1) and 2 (1) (2) and (4) of the Regulations provide:

“Originating application
1	(1)  Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out - 
(a)	the name and address of the applicant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;
(b)	the names and addresses of the person or persons against whom relief is sought; and
(c)	the grounds, with particulars thereof, on which relief is sought.

Action upon receipt of originating application
2	(1)  Upon receiving an originating application the Secretary shall - 
   (a)	send a copy of it to the respondent;
   (b)	give every party notice in writing of the case number of the application (which shall constitute the title of the proceedings) and of the address to which notices and other communications to the Secretary shall be sent; and
(c)	send to the respondent a notice in writing which includes information, as appropriate to the case, about the means and time for entering an appearance, the consequences of failure to do so, and the right to receive a copy of the decision.
(2)  The Secretary shall enter such of the details of an originating application as are referred to in paragraph (4) in the Register either within 28 days of receiving it or, if that is not practicable, as soon as reasonably practicable thereafter.
(4) The details of an originating application to be entered in the Register are - 
   (a)	the case number;
   (b)	the date the Secretary received the application;
   (c)	the name and address of the applicant;
   (d)	the name and address of the respondent;
   (e)	the Regional Office of the Employment Tribunals dealing with the application; 
and
   (f)	the type of claim brought in general terms without reference to its particulars.”

Our conclusions

23.	It follows from the statutory provisions to which we have referred that the critical question is when the claim was “presented”.  In Hammond v Haigh Castle & Co Ltd [1973] ICR 148, Sir John Donaldson said:

“In my judgment, a claim is presented to a tribunal when it is received by the tribunal, whether or not it is dealt with immediately upon receipt.  Thus a claim delivered to the tribunal office by post on a Saturday is presented on that day, even if not registered before the following Monday. A claim is not, however, presented by the act of posting it addressed to the tribunal”

24.	An originating application is, therefore, validly presented when, and only when, it is received by the tribunal.  Registration is not a necessary pre-condition for an effective presentation.  Actual delivery to the tribunal will suffice.  Once it is delivered, it is presented.  Moreover it may be delivered at any time up to midnight on the last day of the limitation period; it does not have to be delivered during office hours, and it does not have to be put into the hands of a member of the tribunal staff (Post Office v Moore [1981] ICR 623). 

25.	In Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179, the Court of Appeal considered whether an application could be “presented” on a non-working day, when a letter box was available but no-one would actually receive and process the application.  Waller LJ, with whose judgment Watkins and Fox LJJ agreed, said:

“In my opinion, it is difficult to say that presentation requires any action on the part of the body to which presentation is made.  Delivery of a document to the proper quarter does not require action on the part of anybody at the proper quarter...  The Employment Appeal Tribunal in the present case, with whose judgment I entirely agree, concluded by saying: “An application is presented if it is placed through a letterbox or dealt with in some other way held out by the regional office as a means whereby it will receive communications”.  I agree with this”

26.	In our judgment it is plain that the Employment Tribunal 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.  If it is successfully submitted to the 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. 

27.	We stress that the application must be successfully submitted.  That is to say, for the complaint to be presented it must reach the website and be accepted there.  Mr Smith found that the facility would not accept his application first time because he had not filled in some of the relevant compulsory fields.  So it was not submitted successfully.  But the second time his application was successfully submitted, and he received the acknowledgment which was sent when an application was successfully submitted.  The Tribunal so found. 

28.	We are grateful to reach this conclusion for two reasons. Firstly it accords with what we, like the Tribunal, believe to be the general public expectation of the way in which a website will work.  We appreciate that applicants are advised to contact the Tribunal Service if they do not receive confirmation.  This is a wise precaution.  But nothing on the website, in our judgment, is sufficient to deflect the general expectation the public will have that an application can be submitted via the website.  Secondly, we believe it to be a just outcome; there is no good reason why an applicant who successfully submits his application to the website in time should be adversely affected by any difficulties which may lie behind the surface of the website.  It is the Employment Tribunals’ website.

29.	We do not think that our conclusion will open the way to bogus assertions that a claim has been brought in time: we are told on all sides that this is an unusual case.  Anyone making a bogus assertion would be unable to produce the kind of evidence which Mr Smith was able to produce.  Moreover, there are now additional checks to monitor and validate on-line submissions as the Employment Tribunal Service told the Tribunal in this case.
30.	In our judgment Sealy v Consignia plc was directed to a different issue.  In that case the actual date of presentation (that is, receipt at a tribunal office) was known.  It was beyond the three month period.  The Court of Appeal was concerned with the oft-litigated question of the extent to which an applicant could rely on his expectation that the post would deliver the application in time.  The issue was whether it was “reasonably practicable” for him to have presented the application in time.  The guidance of Brooke LJ is, in our judgment, not intended to have any application to the use of the internet facility.  The Court of Appeal was not concerned with the use of the internet to present an application. 

31.	We primarily rest our judgment on our conclusion that the Employment Tribunal Service holds out the website as a means by which it will received communication.  Lang v Devon General Ltd dealt with a somewhat different issue to the present, but there is, in our judgment, one important lesson to be learned from it.  In Lang it was just to hold that presentation had taken place on the Saturday because the tribunal had authorised the Post Office to receive and hold mail.  Therefore the Post Office became bailee of the mail in the special sense that it became the authorised recipient of the mail, as opposed to merely a carrier.  These considerations do not apply in the same way to the web host, which is expected to forward communications, but the fundamental point is that the tribunal could, by its arrangements, authorised applications to be received at some location other than its own office.  

32.	Lang was decided before the days of e-mail accounts and websites.  These are usually held on computers remote from an office.  We see no reason, in principle, why a tribunal should not be able to authorise receipt of documents at such a remote location.  The Tribunal found that that was what occurred here.  We agree with them.

33.	It remains, finally and briefly, to deal with the cross-appeal.  In our judgment the Tribunal did not fall into error in its conclusion that the application had not been presented within a reasonable period after the date when it was reasonably practicable to present it if, contrary to the Tribunal’s primary conclusion, it was not presented in time.  The Tribunal applied the correct test.  It reached a permissible conclusion.  

34.	It was submitted on behalf of Mr Smith that the Tribunal had not had adequate regard to all the considerations in questions, but had fettered itself in regard to a particular period of time: see Marley UK Ltd and another v Anderson [1994] IRLR 152.

35.	We do not agree.  This Tribunal, unlike the tribunal whose decision was the subject of Marley v Anderson, did not regard itself as in any way obliged to hold that a particular length of time was or was not reasonable.  It applied the law, it reached a permissible conclusion on the facts, and the cross-appeal is therefore also dismissed.

36.	In the result, therefore, both appeal and cross-appeal are dismissed.  The Decision of the Tribunal stands.