An employee wishing to bring an unfair dismissal claim must do so within three months of their effective date of termination. Time limits for presenting claims to the Employment Tribunal (ET) are normally strictly enforced. Rule 1 of the ET Rules of Procedure states that the claim must be made in writing, which includes applications sent by fax and by email.
In Yellow Pages Sales Ltd. v Davie, Mr Davie’s solicitor presented his claim of unfair dismissal to the Employment Tribunal Office (ETO) on his behalf. The effective termination of Mr Davie’s employment was 25 May 2010, so the last date for submission of the Form ET1 was 24 August 2010. The solicitor faxed the claim on 13 August and received a transmission report confirming receipt. He then went on holiday. On his return on 31 August, he noticed that there was no acknowledgement of receipt from the ETO on file and phoned to investigate. A member of staff could find no trace of the ET1 so the solicitor faxed through a further copy together with a copy of the communication report confirming receipt by the fax machine at the ETO.
At a pre-hearing review, the Employment Judge, who was assisted by expert evidence from a telecommunications engineer with experience of fax communications, held that there had been a successful transmission of all the relevant data in electronic form from the solicitor’s fax machine to the machine at the ETO and the absence of any printout or record of this was due to an unexplained technical fault at the ETO’s end. The claim had therefore been presented within the meaning of Rule 1 within the allowed time limit.
Yellow Pages Sales Ltd. appealed against this decision on the ground that the Employment Judge had erred in law because no claim in writing had actually been received.
The Employment Appeal Tribunal disagreed. Mr Justice Underhill held that what was faxed was a written document and would have been conveyed as such were it not for the malfunction of the ETO’s system. The ET1 Form had been communicated in a fixed form notwithstanding that it was, in effect, lost at the ETO’s end. To find otherwise would be equivalent to saying that the contents of an email are not received until the recipient clicks on his or her inbox and the words become visible, which would be ‘absurd’.