United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A TABACHNIK (of Counsel) Harold G Walker & Co Solicitors Office Chambers Lansdowne House Christchurch Road Bournemouth BH1 3JT


 


MR JUSTICE MAURICE KAY: This appeal is listed today for a preliminary hearing. The Employment Tribunal, sitting at London (North) on 18th January 2000, dealt with a preliminary point arising in Mr Skilton's complaint of unfair dismissal. The point was as to whether his complaint had been presented to the Employment Tribunal within three months in accordance with section 111 of the Employment Rights Act 1996.

1. The factual position was slightly unusual. The evidence heard by the Employment Tribunal Chairman, sitting alone, came from the applicant's solicitor. His evidence, which was accepted, was that on 30th September 1998 he had personally faxed to the Employment Tribunal, at Woburn Place, seven pages of documents, including a cover sheet, setting out the applicant's claim and consisting of two pages of from IT1, that is to say the front and back of the form, together with three pages headed "Details of Complaint." He received a telephone call from a female member of the tribunal staff saying that some parts of the transmission were unclear. He immediately re-faxed the documents. Unfortunately, the re-faxing took the documents not to the Employment Tribunal but to the fax machine of a doctor who had nothing to do with the present case, but was involved in some other litigation with which the solicitor was concerned.
2. Three weeks later, by which time the three month period had expired, the solicitor checked with the Employment Tribunal only to be told that the re-faxed documents had not arrived. That being the case, he faxed them again. On that day, 20th October 1998, they arrived in a legible form.
3. The question that the Employment Tribunal had to consider was whether the complaint had been presented on 30th September, in which case it would have been in time, or whether it was only presented on 20th October, in which case it would have been out of time.
4. There was some evidence as to the duration of the fax transmissions. Apparently on 30th September the transmission report indicated that the transmission had taken 47 seconds, whereas on 20th October it took four minutes or slightly more.
5. The findings of the Employment Tribunal are set out in paragraphs 7 and 8 of the decision. They are in the following form:

"7 We have heard the evidence of Mr Immanuel and we find him to be a witness of truth. We accept that what he sent on 30 September did satisfy the Rules of Procedure.

8 We have heard evidence to indicate that it is not possible to transmit seven pages in 47 seconds. We find that the Tribunal's comments, via its clerk, was such as to indicate some lack of clarity but certainly nothing to indicate that or most of the documents were not transmitted or received."

It is probably not accurate to say that there had been evidence to indicate that it is not possible to transmit seven pages in 47 seconds.

6. The statutory provisions on the presentation of complaints require a complaint to be presented before the end of the period of three months beginning with the effective date of termination, that is section 111(1) and (2) of the 1996 Act.
7. The position is dealt with further in the 1993 Regulations in Schedule 1 where it is provided by Regulation 1(1):

"Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out-

(a) the name and address of the applicant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;

(b) the names and addresses of the person or person against whom relief is sought; and

(c) the grounds, with particulars thereof, on which relief is sought."

8. The documents in this case, leaving aside any covering letter and fax top sheet, amount to a two page IT1 to which a three page document headed "Details of Complaint" is attached.
9. The essence of the submission made on behalf of the appellant by Mr Tabachnik is that the Employment Tribunal did not make sufficient findings of fact and, upon the evidence, could not have made sufficient findings of fact to enable to conclude that there had been a proper presentation on 30th September 1998. Apart from the evidence to which we have already referred, he drew our attention to a letter from the solicitor to the Employment Tribunal dated 20th October 1999 which we understand to be the letter which accompanied the successful transmission of that date. It reads in part:

"The IT1 was faxed to the tribunal on 30th September 1999. I received a telephone call that day from a female official of the Tribunal explaining that she had not received a clear copy and asking me to fax it a second time. The IT1 was then re-faxed."

He went on to describe the rest of the history more or less as we have already recited it.

10. In our judgment the decision of the Employment Tribunal amounts to a finding that on a balance of probabilities, the entire IT1, including the two pro forma documents and the grounds, were received on 30th September 1998. We do not think it arguable that that finding was perverse or susceptible to challenge in any way.
11. The evidence and the findings demonstrate to us that the Employment Tribunal was entitled to infer that the documents had arrived in a complete form, but that some parts of it lacked clarity. We consider there to be significance in the fact that what the solicitor was asked to do in the telephone call on 30th September was "to fax it a second time". There was nothing to suggest that he had been told that there were no grounds attached to the IT1 or that any part of what came through suggested that there was something missing. What seems to have occurred was a lack or partial lack of clarity.
12. In those circumstances, we have come to the conclusion that the Employment Tribunal Chairman was entitled to come to the conclusion which he did and to find that the complaint had been presented, containing all the necessary requirements set out in Regulation 1(1) on 30th September, which was in time by a period of some four days.
13. We add that we do not find the observations about the duration of fax transmissions to be particularly helpful. It is the experience of all members of this tribunal that fax transmissions can be quick or slow depending on a number of variable factors even when the transmission is from and to the same machine on different occasions.
14. In all the circumstances, therefore, we find no arguable ground of appeal and this appeal will accordingly be dismissed.