Nearly all claims to employment tribunals have to be "presented" within three months (less a day) of the event leading to the complaint.

The employment appeal tribunal (EAT) has now decided in Tyne and Wear Autistic Society v Smith (2005, IRLR 336) that an application submitted electronically has been "presented" when the sender has received acknowledgement of it.

 

What were the facts?

Following his dismissal on 24 November 2003, Mr Smith was aware that the deadline for lodging his tribunal complaint was Monday 23 February 2004. He finally submitted his application on 20 February.

Having sent his form electronically, he received a message that receipt of his application would be confirmed within one working day by the tribunal office dealing with his case.

Mr Smith assumed - quite reasonably - that he was dealing directly with the employment tribunals' office and that his application must therefore have reached them. He did not know, however, that the website was operated through an email service, and that that service was hosted by a third party and not the ETS itself.

On receipt of on-line submissions, the host was supposed to transfer them to the central mailbox of the ETS and the regional mailbox of the relevant office. For some reason Mr Smith's application was not received at any of the offices.

As a result, he did not receive any acknowledgement and when he enquired on 8 March about what had happened to it, he was told there was no trace of his application. He then sent another form which was received on 10 March 2004, 16 days out of time.
The tribunal concluded that if the host received the application, then that amounted to presentation to the employment tribunal. As Mr Smith's application had reached the host on 20 February, it had, therefore, been presented in time.

What did the parties argue on appeal?

The Society argued that an application could only be deemed to be "presented" to a tribunal when it arrived at the actual office. Or, in this case, their email box. It was not enough for it to be received by the ETS website, hosted by a commercial organisation.

It said that the risk of failure in transmitting the application rested with the person sending it.

Mr Smith, not surprisingly, agreed with the tribunal's decision. It had relied on the case of Lang v Devon General Ltd (1987, ICR 4) in which there was a special agreement that all mail received on Saturday (when the tribunal office was closed) should be held over by the post office until Monday. Had there not been this special arrangement, the application would have been received on Saturday and therefore been on time.

 

What did the EAT decide?

The EAT said that the critical question was when the claim was "presented".

It decided that, because the ETS now offered the facility for making an online application, it should be deemed as "presented" when it was successfully submitted to its website.

To be successfully submitted, however, the EAT stressed that it had to reach the website and be accepted there. In Mr Smith's case, this happened when he received the message acknowledging it.

As long as the application reached the website on time, it said that it did not matter "if it was forwarded by the website host to the Tribunal Office computer on a later date, or date stamped on a later date."

Although the acknowledgement advised claimants to contact the tribunal service if they did not receive confirmation, there was nothing on the website to make people think that they could not submit their application successfully in that way.

 

Comment

Following a series of similar decisions, the EAT and the Court of Appeal seem to be taking a tolerant approach to this area of law (see Midland Packaging v Clark; Blake Envelopes v Cromie; and Marks & Spencer v Williams-Ryan).