The claimant's solicitors were instructed to present his ET1 to the Tribunal Office. The first attempt was rejected since some information was missing. The second attempt was sent by fax from the solicitor's office to the Tribunal. However, despite a message on the solicitor's fax machine indicating that the submission had been successful, the Tribunal Office did not receive the ET1. The problem was discovered only after the solicitor returned from holiday 2 weeks later, when he realised that no acknowledgment had been received from the Tribunal Office. By then the claim was a week late. The solicitor immediately faxed a further copy of the ET1. The ET ruled that the claim was in time and had been presented within the meaning of rule 1 of the Employment Tribunal Rules of Procedure. The situation was directly analogous with that considered in Tyne and Wear Autistic Society v Smith. The respondent appealed.

The EAT rejected the respondent's argument that the Tribunal did not receive any valid claim in writing (which is stipulated in rule 1); at best, the fax machine may have received data 'packets'. According to the respondent, these data packets could have been converted into a written document but this was not done due to an error in the Tribunal's fax machine, and as such, no claim in writing was received. The EAT ruled that what was faxed to the Tribunal was a written document. The data packets were simply the technological means by which that writing was conveyed and would, if the system had not malfunctioned, have translated into a written document.

__________________

Appeal No. UKEATS/0017/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 22 September 2011

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) (SITTING ALONE)

YELLOW PAGES SALES LTD (APPELLANT)

MR S I DAVIE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR FINLAY MCKAY

Dundas & Wilson CS LLP
Saltire Court
20 Castle Terrace
Edinburgh
EH1 2EN

For the Respondent
MR MARK CARLIN

Friels Solicitors
The Cross
Uddingston
South Lanarkshire
G71 7ES

**SUMMARY**

PRACTICE AND PROCEDURE – Application/claim

JURISDICTIONAL POINTS – Claim in time

Claim form faxed to the Employment Tribunal office – Data received in host system, and successful transmission report received by sender; but due to technical error in host system data lost and no printout made

**Held**: Claim had been properly presented – Reference made to **[**Tyne and Wear Autistic Society v Smith**](http://www.bailii.org/uk/cases/UKEAT/2004/0652_04_1612.html)** [2005] ICR 663**THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)**

1. This is an appeal against a decision of Employment Judge Kearns at a Pre-Hearing Review in Glasgow on 20 January this year that the Claimant's claim of unfair dismissal was presented in time. The Judge reserved her decision, which was sent to the parties on 8 February. I wish to say at this stage that her decision is a model of clarity and thoroughness.

1. The Appellant has been represented before me by Mr Finlay McKay of Dundas & Wilson, and the Respondent by Mr Mark Carlin of Friels, both of whom also appeared below.

1. The material primary facts are found at paragraph 4 of the Reasons as follows:

"4. The following facts were admitted or found to be proved:-

(i) The claimant was formerly employed by the respondent from 6 February 2007 until 25 May 2010. The effective date of termination of his employment was 25 May 2010.

(ii) On 3 August 2010 the claimant's solicitor, Mr M Carlin of Friels Solicitors, The Cross, Uddingston, South Lanarkshire, G71, presented a claim to the Employment Tribunal on behalf of the claimant. That claim was faxed to the Tribunal Office at 16:41 on 3 August 2010. Although the claim was received at the Tribunal Office, it was rejected by letter dated 6 August 2010 on the basis that it was a claim for unfair dismissal and no dates of employment had been provided. The claimant's solicitor was also asked to clarify whether the claimant was employed in Scotland.

(iii) On 13 August 2010 at 15:51, Mr Carlin's secretary at Friels, Ms Yvonne McAllister faxed the claimant's ET1 (which consisted of 7 pages plus a fax front sheet) to the Tribunal Office on 0141 204 0732 which is the correct fax number of the Tribunal Office. She received a transmission report which confirmed that all eight pages of the faxed transmission had been received by the Tribunal Office. The fax front sheet was dated 13 August 2010 and stated as follows:-

*

'Mr Stuart Davie*

Yell Group

Pre-acceptance number PA/GLA/832/10

We refer to the above and enclose a further claim form with the dates of employment and the confirmation that the Applicant was employed at 180 St Vincent Street, Glasgow G2 5SG.

Yours faithfully'

(iv) A fax transmission works in the following way: the transmitting machine takes electronic images of the pages to be faxed and sends these electronic images digitally to the receiving machine. The data is sent in 'packets'. The packets are not necessarily one page at a time. The transmitting machine sends the packets consecutively. After receiving each packet the receiving machine confirms to the transmitting machine that the packet has been received and the next packet is then transmitted. If any of the packets are not received, the receiving machine does not confirm receipt to the transmitting machine and the transmitting machine issues an error report.

(iv) If a receiving machine is out of paper and has an internal memory, it will store the electronic data in its internal memory until the paper is restocked. If the receiving machine has no internal memory then the lack of paper will result in non receipt of the fax. However, the particular fax machine used by Ms McAllister would have reported that that the receiving machine had no memory and it would have sent an 'out of paper' message had this problem occurred in the receiving machine. Thus, in those circumstances, the transmitting machine used by Ms McAllister would not have generated an OK report.

(v) Once Ms McAllister had faxed the claimant's ET1 to the Tribunal Office on 13 August the transmitting machine at Friels issued a communication result report in the following terms:

COMMUNICATION RESULT REPORT (13. AUG 2010 15.53) *

FAX HEADER: FRIELS

TRANSMITTED FILE MODESTORED:

OPTION13. AUG. 2010 ADDRESS15:51 RESULT

PAGE- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 318 MEMORY TX01412040732OK8/8

(vi) This report confirmed that the receiving fax machine at 01412040732 had received the faxed ET1 transmitted by Ms McAllister in electronic form. The result 'OK' means that the document sent in electronic form is now in the receiving machine. The two fax machines had communicated with each other and had effectively 'agreed' on what had been sent/received before the OK message was generated. The fax transmission of the claimant's ET1 sent by Ms McAllister on 13 August was accordingly successfully received by the Tribunal fax machine and therefore delivered.

(vii) 13 August 2010 was a Friday. Mr Carlin confirmed with Ms McAllister that the faxed ET1 had been sent to the Tribunal Office and that the Communication Result Report showed that it had been received. The claim was faxed within the limitation period and the normal and expected result of the sending of a fax transmission followed by a successful communication report was that the fax had been received at the Tribunal Office and that was Mr Carlin's understanding. Mr Carlin then went on holiday and returned to business on 30 August. On the morning of 31 August 2010, Mr Carlin checked the claimant's file and expected to see an acknowledgment from the Tribunal Office for receipt of the application. He noted this was not on the file.

(viii) Mr Carlin immediately 'phoned the Employment Tribunal Office. He spoke to a member of staff and explained that an ET1 had been sent in by fax on 13 August 2010 and that he had received a communication report which stated that the fax had been received. The member of staff went to search for the ET1 and came back and reported that they could not trace having received it.

(ix) Mr Carlin then faxed a further copy of the ET1 to the Tribunal Office at 10.42am on 31 August 2010. He also enclosed a copy of the fax communication report of 13 August.

(x) The effective date of termination of the claimant's employment was 25 May 2010. The last date for submission of the Form ET1 was midnight on 24 August 2010."

As will have appeared from that passage, the Judge was assisted by expert evidence being given by a telecommunications engineer with experience of fax communications.

1. The issues before the Judge were: firstly, whether the claim had been presented in time; and, secondly, if not, whether it was reasonably practicable for the Claimant to have done so, and if not whether the claim was submitted within such further time as was reasonable, by reference to section 111 (2) of the Employment Rights Act 1996, which I need not set out.

1. So far as the first question is concerned, it is necessary to start with to rule 1 of the Employment Tribunal Rules of Procedure. Paragraph (1) of that rule reads:

"A claim shall be brought before an employment tribunal by the claimant presenting to an Employment Tribunal Office the details of the claim in writing..."

1. The Judge noted that the Tribunal Service held itself out as accepting applications by fax. She found that, on the evidence and on the basis of the primary facts which I have already referred to, there had been a successful transmission of all the relevant data in electronic form from the Claimant's solicitor's fax machine to the Tribunal's machine and that the absence of any printout or even record on the latter machine was due to an unexplained technical failure at the Tribunal's end: see paragraph 10 of the Reasons. On the basis of that finding, she held that the claim had been presented within the meaning of rule 1. She held that the situation was directly analogous with that considered in Tyne and Wear Autistic Society v Smith [2005] ICR 603. In that case a claim submitted online had been held up in the server of the Tribunal website host. This Tribunal, HHJ Richardson presiding, held, as summarised in the headnote:

"Held, dismissing the appeal, that a complaint was presented to an employment tribunal, for the purposes of section 111 of the Employment Rights Act 1996, if it was dealt with in some way held out by the employment tribunals as a means whereby they would receive communications; that the Employment Tribunals Service now held out the facility for making online applications as a means whereby it would receive communications, specifically an originating application, and it followed that an application was presented when it was successfully submitted online to, and accepted by, the Employment Tribunals Service website; and that, if it was so submitted within time, it did not matter if it was forwarded by the website host to the tribunal office computer on a later date or there were problems in communication between the host and the tribunal office… ."

In the present case, the Tribunal Service held out to the Claimant that it would receive claims by fax; and the receipt of the relevant electronic data on the Tribunal's machine, like the receipt of data on the Tribunal's website in the Tyne and Wear case, sufficed. The Judge went on to consider whether, if she were wrong about that, the Claimant could rely on subsection (2) (b) of section 111, and she held that she could.

1. I take first the Judge's decision that the claim was presented in time. The Appellant's case is succinctly stated at paragraph 7.1 of the Notice of Appeal as follows:

"In determining that the ET1 had been lodged in time, the Employment Tribunal misapplied or misconstrued the requirements of Rule 1 of the Employment Tribunal Rules of Procedure, which expressly states that

*

'A claim shall be brought before an employment tribunal by the Claimant presenting to an Employment Tribunal Office the details of the claim in writing'*

The findings in fact demonstrate that the Tribunal did not receive any valid claim in writing in respect of this matter. The findings of fact demonstrate that, at best, the fax machine may have received data 'packets'. These data packets could have been converted into a written document, had some undisclosed error not occurred. The findings of fact are however clear that this was not done and, as such, no claim in writing was received. The Tribunal accordingly erred in law in finding that a claim had been presented in accordance with the Rules of Procedure."

Mr McKay developed those submissions orally before me.

1. I cannot accept the Appellant's case on this point. What was faxed to the Tribunal was a written document. The "data packets" that, on the Judge's findings, reached the Tribunal's fax machine were simply the technological means by which that writing was conveyed and would, if the system had not malfunctioned, have translated into a written document - typically by way of printout, though possibly also by presentation on a screen, at the Tribunal office. In my judgment it would be out of touch with reality to say that in those circumstances a document in writing had not been presented. The reference to "writing" in rule 5 (1) plainly excludes oral communications; but there is no reason to suppose that the rule-maker was concerned to distinguish between different ways in which written documents could be transmitted – and of course at the time that the 2004 Rules were made the use of fax was widespread and was accepted by the Tribunal as an acceptable means of presenting a claim. What matters, and what the rule-maker was surely concerned with in specifying that any claim should be in writing, is that there should be a presentation of the complaint in a fixed form, which could be communicated in that form to the other party. That had occurred, notwithstanding the document being, in effect, lost at the Tribunal's end.

1. We would add that if the Appellant's point were right, it would seem logically to mean that the writing contained in an email does not in fact appear until the point at which the recipient clicks on his or her inbox. Yet it would be absurd to say that a document presented by email had not been received until that point, simply because no writing had physically appeared.

1. I should also note for completeness that Mr Carlin referred me to rule 61 of the Employment Tribunal Rules of Procedure, which is headed "Notices, etc". As originally made, paragraph (1) read as follows:

"(1) Any notice given or document sent under these rules shall (unless a chairman or tribunal orders otherwise) be in writing and may be given or sent -

(a) by post;

(b) by fax or other means of electronic communication; or

(c) by personal delivery."

Paragraph (2) goes on to provide that where a notice or document has been given or sent in accordance with paragraph (1) it shall be taken, unless the contrary is proved, to have been received by the party to whom it is addressed,

"(b) … in the case of a notice or document transmitted by fax or other means of electronic communication, on the day on which the notice or document is transmitted."

Mr Carlin submitted that that language supported the position adopted by the Judge. I am cautious about accepting that submission for two reasons. First, I am not satisfied, at least without hearing further argument, that rule 61 applies to the presentation of a claim under rule 1. My first impression is that the provisions relating to the presentation of a claim are distinct from, and not governed, by rule 61. Secondly, since the rule was first made, the words "fax or other" have been repealed, with effect from April 6 2009, by the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008. I do not know the background to that repeal, or whether it is of any significance to the issues before us. I therefore prefer to base my conclusion purely on the natural meaning of rule 1 in its context, and not to place any reliance on rule 61.

1. I would finally also observe that if the Appellant's argument were right it would have been equally applicable in the Tyne and Wear case. There too the host website had only received electronic data. No writing had appeared on any screen or printout in the Tribunal office. The point that the claim for that reason had not yet been presented in writing was not taken by counsel for the employer, and I can see why he did not think it right to do so.

1. I should say that I have not been referred by either party to any judicial decisions on the meaning of "writing" in other contexts. I am sure that there are many such authorities, and not only in connection with the hoary issue of whether a given publication constitutes libel or slander. It is possible that there might be some useful statements of general principle in them, but I dare say that those appearing before me exercised a wise restraint in deciding not to look more widely, because at the end of the day what we must be concerned with is the meaning of the phrase in this particular rule.

1. Having reached that conclusion in relation to the first issue, I need not consider the Appellant's challenge to the Judge's conclusion on the second issue, which does not arise. The appeal is accordingly dismissed.