Sally Logan, associate at Addleshaw Goddard, brings you a comprehensive update on the latest decisions that could affect your organisation, and provides advice on what to do about them
Initial Electronic Security Systems Limited v Avdic
Akhavan-Moossavi v Association of London Government
Electronic presentation of claims
The Employment Appeal Tribunal (EAT) has clarified the rules regarding the submission of claim forms via e-mail and online via the Employment Tribunal Service (ETS) website.
In Initial Electronic Security Systems Limited v Avdic, Ms Avdic e-mailed her claim form to the tribunal at 4.05pm on the last day of the three-month time limit in which she could bring her claim for unfair dismissal. She did not receive a message notifying her that her message was undeliverable. Avdic telephoned the tribunal the following week, concerned that there had been no acknowledgment of receipt, and was told that her e-mail had not been received.
Avdic argued that the three-month time limit should be extended on the grounds that it was not reasonably practicable for her to submit her claim within that time limit. The EAT agreed, holding that the ‘Consignia escape route’ applied to claim forms sent by e-mail. The Consignia escape route entitles a claimant to rely on a claim form arriving at the tribunal (for postal applications) within the ‘ordinary course of post’ (two working days).
For e-mail applications, the EAT decided that the appropriate period was the period within which the claimant could reasonably expect the e-mail to arrive, and decided that, in the absence of any indication to the contrary (e.g. a delivery failure), this would be 30-60 minutes after the e-mail was sent. Avdic was well within this timeframe.
In the Akhavan-Moossavi case, Akhavan-Moossavi submitted his claim form via the ETS website at 4.30pm on 24 July 2003 (the date on which the three-month time limit expired). He received this automated message: “Thank you. Receipt of your application will be confirmed by the tribunal office dealing with your case. If you do not receive an acknowledgment of your submit-ted application within one working day, please telephone the relevant office”. On telephoning the tribunal the following day, Akhavan-Moossavi was advised to resubmit his claim form as it had not been received. He did so at 4.20pm on 25 July 2003.
The tribunal said it had not been reasonable for Akhavan-Moossavi to expect that his claim form would be presented in time and said he should have telephoned the tribunal before 5pm on 24 July 2003 to confirm safe receipt.
However, the EAT disagreed and decided that because of the ambiguous nature of the automated message, it had not been reasonably practicable for Akhaven-Moosavi to submit his claim in time.
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Key points
The fact that the claim form in Avdic was submitted around eight hours before the deadline was significant. If it had been submitted an hour or less before the deadline, she may not have been able to rely on the Consignia escape route.
The guidance notes on the claim form itself expressly state that there is no guarantee that a form submitted via the ETS website will be delivered the same day.
What you should do
- Try not to wait until the last minute to submit ET3s
- If submitting an ET3 by e-mail, the ETS website or fax, always telephone the tribunal before 5pm that day to confirm safe reciept and make a note of the name of the clerk you spoke to. If it has not been received, resubmit it immediately and ring again to check safe receipt
- Print copies of all forms/documents submitted by e-mail/the ETS website and any automated messages received. Make a note of the time that the form was sent
- If you receive an ET3, always check whether the claimant has complied with the relevant time limit. If they have not, consider the circumstances of the delay and whether it would be appropriate to apply for a pre-hearing review for the claim to be dismissed.
