Appeal No. UKEAT/0281/05/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 June 2005

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
(SITTING ALONE)

INITIAL ELECTRONIC SECURITY SYSTEMS LTD	APPELLANT

MISS A AVDIC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR NEIL DOWNEY
(of Counsel)
Instructed by:
Messrs Rickinsons
6 Winckley Square
Preston PR1 3JJ	
For the Respondent	Submissions in writing	

SUMMARY

Time Limits

The ‘ordinary course of email’, absent any contra indication that an email message has not been sent, is to expect delivery within a reasonable time thereafter, perhaps half an hour up to an hour. Consignia should be relied upon as establishing the test of objective reasonable expectation (see Coldridge) of a claimant sending his claim form to the ET: it does not impose an obligation to prove an ‘unforeseen circumstance’. Only if the ‘Consignia escape route’ is established however is a claimant free from justifying his or her delay during the 3-month period. 

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the hearing of an appeal by the Respondent Initial Electronic Security Systems Ltd against whom the Applicant Miss Avdic wished to bring a claim in the Employment Tribunal at Southampton. It has not been necessary for me to consider the merits or the substance of that claim at all; the claim was one, it seems, for unfair constructive dismissal. A complaint of unfair dismissal must be brought and presented in accordance with s111 of the Employment Rights Act 1996, and by s111(2):

“… 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.”

2.	This is a case involving the unsuccessful transmission of an originating application to the employment tribunal by e-mail. It is of some interest in that regard. As far as I know it is the first case coming before the Employment Appeal Tribunal concerned with what is the ordinary course of e-mail, by reference to a comparison with ordinary course of post. The Respondent has been represented today by Mr Neil Downey of Counsel, who has put in an extremely full and helpful Skeleton Argument, and has supplemented that with oral submissions. The Applicant, herself, has not attended today but has put in a written submission, although that written submission largely, if not wholly, deals with issues of merit and explanation as to why there was delay earlier than the sending of the e-mail, none of which has been relevant for my consideration today.

3.	The brief facts are that the Claimant attempted to e-mail the claim form at 16.05 on Friday 12 November 2004, that is 4 o’clock in the afternoon on, what was, in fact, the last day on which presentation could have been made in order to comply with the three month period.  The system at the Employment Tribunal is that presentation at any time on a relevant day, i.e. prior to midnight, is regarded as good presentation, and so, in effect, therefore, if the e-mail had gone through, it would have arrived some 8 hours before the last time for presentation within s111.  
4.	The finding of the Employment Tribunal in paragraph 5 is as follows:

“The Claimant tried to e-mail the claim form at 16.05 hours on Friday 12 November 2004 and had the transmission been successful it would have been presented in time. It was reasonable for her to assume that the claim form would be received on that date and she had no reason to suspect or believe that the message and claim form had not been sent. There was no “not sent” message appearing on the screen and the e-mail message appeared in the “sent messages” folder and she printed out a copy. “

5.	The recent decision of Tyne and Wear Autistic Society v Smith [2005] IRLR 336 related to the question of use of the e-mail. In that case it was use of the Employment Tribunal service website, but that is not relevant to the question to be decided by me, because in that case it was found that, by virtue of reception on the exchange forming part of the website, there was presentation in time. In this case, it is accepted that the presentation was out of time because, as is sometimes said amongst those discussing e-mail, the Applicant’s e-mail appears to have ‘disappeared into the ether’ and did not arrive in time or at all, and so the issue before the Employment Tribunal was whether, albeit that it was not in fact presented, an extension should be granted on the basis of s111 (2). 

6.	It has been accepted by Mr Downey before me that the principles in Consignia plc v Sealy [2002] IRLR 624 apply. The lead judgment of the Court of Appeal in that case was given by Hart J, with whom the rest of the court agreed. But in the recent decision by me in this Appeal Tribunal of Coldridge v H.M. Prison Service UKEAT/0728/04 and 0729/04, as yet unreported, I found, with respect, very helpful, the judgment of Brooke LJ in that case, and it has certainly been the judgment of Brooke LJ which has been heavily drawn on in other cases. Brooke LJ was, in effect, addressing very succinctly the issue of ordinary course of post, and he did so by reference to what the reasonable expectation of a poster of mail is; see paragraph 31 (5), and in particular 31 (7): 

“The ‘normal and expected’ result of posting a letter must be objectively, not subjectively, assessed and it is that the letter will arrive at its destination in the ordinary course of post.”

The ordinary course of post was determined to be two working days, excluding non-delivery days.

7.	The headnote in the Industrial Relations Law Report of Consignia is, in my judgment, however, misleading in so far as it refers to the judgment of Hart J. What is extremely  important to emphasise, and I emphasise it again, is that unless the party seeking to present his or her originating application can take the benefit of the ordinary course of post rule, or similar, as discussed in this case, it is essential for an Applicant to show, in order to get the benefit of s111 that presentation of a claim form or an originating application was not reasonably practicable within the three month period; and thus explanations which are dedicated towards showing why, for example, somebody was stuck in a traffic jam, or on a bus on the way to a Tribunal office, will not be sufficient without an explanation as to why he or she left the presentation of a claim form until the last moment. 

8.	The IRLR headnote in Consignia says this:

“In determining whether it was reasonably practicable to present an unfair dismissal application within the prescribed time period, a complainant is entitled to rely on the ordinary course of post and it does not matter why he has waited until the last moment to present his application.” 

That statement was yet further diluted by the way in which the Employment Tribunal in this case set out what it states, in paragraph 9 of the judgment, to have been “the following principles … approved by the Court of Appeal”. That articulation splits up the alleged principles into three separate subparagraphs, the second of which is “(b) It does not matter why the Claimant has waited until the last moment to present the complaint.” 

9.	As I have indicated, that is as a self-standing proposition incorrect: it will always matter why the Claimant has waited until the last moment to present a complaint unless the Consignia defence becomes available. Indeed, it would disregard the binding authority of the Court of Appeal in Schultz v Esso Petroleum Co. Ltd. [1999] ICR 1202, a decision of the Court of Appeal, in which Brooke LJ himself participated, and which emphasised that, although the main concentration will be on the latter end of the three-month period, the whole of the period will be relevant. I note that Schultz was not cited in Consignia. However there is an answer, and that is that both the Tribunal in this case and the headnote in Consignia do not in terms address what were in fact very careful words of Hart J in paragraph 19 in Consignia.  He said as follows (my emphasis):

“This line of authority stands for three propositions:  first, that ‘where a claimant does an act within the period prescribed, which in the ordinary event would result in the complaint being made within the specified period, and that is prevented from having its normal and expected result by some unforeseen circumstance’ the escape clause is available… secondly that, if that condition is satisfied, it does not matter why the Applicant has waited until the last moment.”

10.	In this case the Tribunal was satisfied that the Consignia escape route was available, and only in that event did it not matter why the Claimant had waited till the last moment to present the complaint: but for the availability, as the Tribunal found, of the Consignia escape clause, this Applicant would have been required to explain why she waited until the last day to bring the claim.

11.	I turn then to the issues raised by Mr Downey, which are two-fold. First he submits that the Tribunal erred in law, or was perverse, in concluding that the Consignia escape clause was available to the Applicant in this case and secondly that the Tribunal erred in law, and/or was perverse, in concluding that if assistance was given to the Applicant by the Consignia escape clause within s111 (2) b the Applicant did not act sufficiently promptly after the expiry of the period to obtain that benefit.  

12.	I turn to the first of those two arguments, which is plainly the more significant. Mr Downey submits that the non-delivery of the e-mail was not, in the words of Hart J “an unforeseen circumstance”. As I have indicated, this Tribunal made findings in paragraph 5 of the Tribunal as to the state of mind of the Applicant. There was clearly no counter-indication to her, no reason for her to doubt that the e-mail had been sent. I have already indicated that I find the approach of Brooke LJ easier to apply than the words of Hart J, albeit that Brooke LJ agreed with Hart J. The question might well arise, and, indeed, Mr Downey poses it ‘What is an unforeseen circumstance?’ He submits that it is not unforeseen that some e-mails are not delivered or that some e-mails are delayed, and he would be looking for something much more unforeseen, such as, for example, although this is not one he gave, somebody sitting down at their computer and finding that it had been stolen or that it had irretrievably crashed, and there being no other way of getting the e-mail sent or indeed the claim form communicated within the available time. That would, in my judgment, however, require the kind of further explanation as to why the Applicant had left it that late, which is just what is excluded by the Consignia escape route. In my judgment, the Consignia escape route asks the question: ‘What is the reasonable expectation of the poster or sender of a claim form by mail?  In this case I conclude the right course is to ask ‘What is the reasonable expectation of the sender of a claim form by electronic mail?’, and, in my judgment, this Tribunal was more than entitled to find that, absent any contra-indication, the reasonable expectation of the sender of an electronic mail communication is that it would arrive within a very short time thereafter. There was no expert evidence here in this case, and there is none sought to be put in before me, and so one can only use judicial notice and/or general experience now that we are all, to one extent or another, users of electronic mail. Just as there are occasions, of course, of delays in the post but the reasonable expectation is of arrival in two working days, so there are occasions when e-mails disappear into the ether. There are occasions when e-mails are delayed, although speaking for myself, I do not have any experience, and nor does Mr Downey, of an e-mail being delayed as much as 8 hours. It may be that a sender of a claim form 15 minutes before the expiry time may not have been able to persuade a employment tribunal that it would be reasonably expected that it would arrive in 15 minutes, and there may be a similar question mark over 30 or even 60 minutes, but 8 hours beforehand is, in my judgment, a sufficient period in which a tribunal would be entitled to conclude that the sender would be reasonably entitled to expect that it would arrive, absent, of course, disappearance into the ether; but, as I have already indicated, it seems to me that a tribunal would be entitled to find that the reasonable expectation of a sender would be that an e-mail would be delivered. Albeit that rarely e-mails disappear into the ether, the vast majority of them do not.  

13.	In those circumstances, I would be content to say that this Tribunal was entitled to come to the conclusion it did, but this may be an occasion for me to conclude that the ordinary course of e-mail post is a relatively short period of time after transmission; 30 or 60 minutes might be thought to be the normal maximum by way of reasonable expectation, absent any contrary indications, such as the Tribunal found did not exist in this case. I agree with the Tribunal’s decision in paragraph 5, and can see no ground to challenge it in law.  

14.	The Tribunal turned, as it had to, to consider what happened after the expiry of the period, and it made its findings concisely in paragraphs 6 and 7 of its judgment:

6.       When she received no response, she phoned the Tribunal Office on Wednesday or Thursday of the following week to be told her e-mail had not been received. She therefore decided to deliver it by hand and did so on Friday 19 November 2004. She said that her location in Portsmouth and her work during the day and in the evenings prevented her from hand delivering to Southampton any earlier. “ 
7. 	        The day of presentation of the complaint to the Southampton office was 19 November 2004 when it was hand delivered by the Claimant. The Tribunal office was closed and it was handed to the Security Officer at the reception desk.  

15.	Not surprisingly, Mr Downey criticises paragraph 7 of the Tribunal decision because he submits, not least by reference to the fact that the claim form was in fact stamped as received by the Employment Tribunal office on 22 November, that it is not right without more to say that the date of presentation was 19 November. If the issue really was, ‘was there presentation or not on the 19 November 2004?’-  i.e. if, for example, 19 November was the late date of presentation and presentation or not became the issue, then it seems to me there might need to have been further evidence as to the precise nature of the delivery, its precise time and the identity of the Security Officer, for example, and whether he or she was an employee of the Employment Tribunal or somebody employed by some outside body to patrol the entire building, of which the Employment Tribunal may, or may not, form the entirety. 

16.	But this is not a case in which the issue is whether there was presentation on 19 November or 22. The issue within s111 (2) is whether the complaint was presented to the tribunal within such further period as the tribunal considers reasonable after the expiry of the actual period, which it will have found and did in fact find, in this case, was covered by the reasonable practicability defence. The finding of the Tribunal was that it was reasonable of the Applicant to have raced along on the Friday evening, albeit it was too late to deliver it to the office before it closed. That includes an implicit finding that it was reasonable of the Applicant not to chase up whether the e-mail had been received until the Wednesday or Thursday, and reasonable of her, because she was living in Portsmouth and working during the day, not to deliver it to the office until the Friday evening, which would either be 24 or 48 hours after discovery that the e-mail had not been received. 

17.	It has, as Mr Downey has rightly accepted, been often stated that the issue of reasonable practicability is almost entirely one of fact, and, indeed, one of fact in which it is extremely rare for an appellant tribunal to be in a position to interfere, not least because of the narrow confines of the concept of perversity. I am satisfied that there are no grounds for interfering in a conclusion that a delivery by this Applicant, some time lateish on Friday evening was in compliance with her duty to act promptly after her discovery that the e-mail had, in fact, not been delivered; and Mr Downey has not directed any particular fire, if any at all, at the fact that she did not discover that the e-mail had not been delivered until Wednesday or Thursday, some 4 or 5 days after she had thought that she had sent it. In all those circumstances, this appeal is dismissed.