The decision of the London Employment Appeal Tribunal (EAT), given on 8 June 2005, in the case Initial Electronic Security Systems v Advic is thought to be the first time that the EAT has been required to apply existing procedures for determining whether an application to an employment tribunal sent by post has arrived within the statutory deadline to a situation where one was sent by e-mail.

In many cases, the statutory deadline for making a complaint to an employment tribunal is three months from the event complained of, e.g. the date of termination in an unfair dismissal case. If the application is made after the deadline, the employment tribunal may extend the three-month period if it is satisfied that it was not reasonably practicable to present the complaint in time. In such a situation, the tribunal would look in detail at the reasons for the late presentation and take all of the circumstances into consideration.

Miss Advic had sent her originating application to the Employment Tribunal website by e-mail on the last day of the three-month period. As long as the document is received by midnight on the deadline date, it is treated as having been received in time. She sent the e-mail about 8 hours before midnight. Her computer told her that the document was sent successfully but she discovered a week later that it had not been received; that it had "disappeared into the ether". She delivered a paper copy of the application by hand a few days later.

The employment tribunal accepted that Miss Advic had presented the application in time because it was reasonable for her to assume that it would be received on the same day.

The employer appealed that decision and the EAT considered how the guidance to tribunals in deciding when an application sent by post is treated has having been received should be applied to e-mails. In so doing, the EAT clarified the existing rules for application sent by post.

• Where an application is sent by post before the deadline but arrives late due to some unforeseen circumstance, it is treated as having been presented on time if, in the "ordinary course of post", it would have been expected to arrive at its destination in time. The "ordinary course of post" is taken to be two working days, excluding non-delivery days. This provision is called the "Consignia escape clause" after the 2002 Court of Appeal decision in the case <>Consignia plc v Sealy where it was originally propounded.
  
  
• Where an application does not arrive in time and the employee is able to rely on the "escape clause", the tribunal does not need to give any consideration, in determining whether the complaint can be heard, to the reasons why the employee left it to the last minute to send the application.
  
  
• Where an application does not arrive in time and the employee is unable to rely on the "escape clause", the tribunal must consider all of the circumstances that caused the deadline to be missed and decide whether or not it was not reasonably practicable for the application to arrive in time.

In applying the Consignia escape route to applications sent by e-mail, the EAT decided that the original tribunal was entitled to find that an e-mail communication would arrive within a "very short time". Miss Advic had sent her e-mail 8 hours beforehand and she was reasonably entitled to expect that it would arrive in time. The EAT concluded 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".

...back to 14 July 2005

Sources:
Employment Appeal Tribunal

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