Nearly all persons wanting to make an employment tribunal claim must first have received an Earl conciliation certificate from ACAS to enable them to lodge their claim. This applies even if a claimant does not wish to undertake conciliation.

Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 detail when a certificate is ‘received’: 

9. – (1) Where ACAS issues an early conciliation certificate, it must send a copy to the prospective claimant and, if ACAS has had contact with the prospective respondent during the period for early conciliation, to the prospective respondent.

(2)  If the prospective claimant or prospective respondent has provided an email address to ACAS, ACAS must send the early conciliation certificate by email and in any other case must send the early conciliation certificate by post.

(3)  An early conciliation certificate will be deemed received—

(a)  if sent by email, on the day it is sent; or

(b)  if sent by post, on the day on which it would be delivered in the ordinary course of the post.

It follows therefore that if a claimant has provided ACAS an email address then ACAS must send the certificate to that email address and that the certificate will be deemed to be received by the claimant on the day that the email was sent. Certainty as to the date of reception is important because at the suspension of time limits that apply whilst ACAS early conciliation processes are ongoing cease to apply when the certificate is issued meaning that a claimant will have a fixed period of time to make an employment tribunal claim and, if they make a claim outside of that time limit they risk their claim being struck out as being out of time.

So far, so simple? Unfortunately, the recent case at the Employment Appeal Tribunal Galloway v Wood Group UK Ltd  shows that there is scope for confusion.

The relevant facts of the case are simple. The claimant wanted to make an employment tribunal claim (the nature of the claim is explicitly stated) and he submitted the required early notification form and gave the email address of his Unite Union rep. Or so he thought. The claimant actually made a typographical error and missed a “.” from the email address. In due course ACAS issued a certificate but the claimant was none the wiser of this fact, since the email was not delivered to his union rep.

In due course the lack of ACAS response was noted but by then the claim was out of time and the ET refused jurisdiction, it is this decision that was challenged at the EAT.

The issue before the EAT was limited to one issue what does the reference to “an email address” in Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 actually mean?

If, as the employer submitted “the information supplied had the appearance of an email address then it should be treated as an email address for the purpose of regulation 9” was accepted then the claim was certainly out of time. If however, it was a requirement that the email address be valid email address then ACAS had failed to deliver the conciliation certificate which would mean it still needed to do this.

The EAT preferred the latter approach:

I have come to the view that the expression “an email address” means an actual email address and not, as here, an address that has never been set up or registered to any user or users.   Since the object of the Form is to enable communication, the intention must have been to solicit an email address that could be used to send the certificate. If so the phrase must mean an actual email address.  That is what the request on the form sought. I find it difficult to accept that Parliament intended the words “an email address” to include invalid addresses that could not be recognised as an email address by a server and forwarded.  It seems to me in that situation the sequence of characters supplied is no different in principle from a quotation from Shakespeare or a meaningless sequence of characters.  If a computer sever cannot recognise the data as an address then I do not consider that it can be “an email address” no matter how closely (or not) it resembles one. A quite different situation would present itself if a wrong email address was supplied. It could be argued that the hapless claimant would have to rely on the statutory dispensing powers (111(2) of the Employment Rights Act 1996) if that were to occur.

The judgement is a helpful one that means that where there is an incorrect email address provided to ACAS then if that is an email address to which correspondence could not be sent and received then the service of a conciliation certificate is not effective.

Cases Cited:

Galloway v Wood Group UK Ltd [2019] UKEAT 0017_18_1801