What is an email address?

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

Discretion on the Sift

decisionWhen a claimant lodges an employment tribunal claim the case does not always get so far as the Respondent even needing to decide whether they contest the case and need to submit an ET3 (the document setting out a Respondent’s Grounds of Resistance). Sometimes an employment judge reviews the case at the outset and determines the case should not proceed (called ‘the sift’) and strikes out the claim.

Three appeal cases on this practice have been issued in the last two weeks and they offer a timely reminder to take care when lodging tribunal claims.

Cranwell v Cullen is a case in which the Appeal judge evidently had a great deal of sympathy for the claimant. In order to submit an employment tribunal claim it is a mandatory requirement (with very few exceptions) that a claimant must go through ACAS’ Early Conciliation process. This is evidenced by a EC certificate issued by ACAS, the number of which must be added in a claim.

The claimant alleged that the Respondent has subjected the claimant to sexual harassment and it is clear the issues between the two parties were extremely serious since the Respondent was prohibited from contacting the claimant. Understandably, given the gravity the claimant did not consider early conciliation would resolve the issue but evidently was not aware that while conciliation was not mandatory, approaching ACAS and explaining the position was.

In the event the claimant lodged an ET claim but did not approach ACAS before doing so. Despite the very serious complaint of sexual harassment against the Respondent the claim was struck out as no EC certificate had been issued which is a mandatory requirement. This was done without any hearing of the claimant’s explanation why the requirement had not been followed. At the appeal the EAT confirmed that in the application of this Rule an ET judge has no discretion even if, as in this case, a strict application of the law amounts to the denial of justice to an unrepresented claimant. Reading the law at issue it is difficult to conclude that this decision is correct insofar as the interpretation of the Rules goes but it is also difficult to avoid the conclusion that it is the absolute bar on discretion – even if that is just judicial discretion to further extend time limits to allow a claimant to follow the EC process – is an impediment to access to justice. The one sop is the judge’s indication that were the claimant to resubmit, having gone through the appropriate process, then even if out of time which seems to be almost certainly the case, the claimant may have good grounds to argue the case should nevertheless proceed to hearing but even hear there is no certainty.

Sterling v United Learning Trust covers similar terrain to Cranwell in that it also concerns the ACAS EC process as a necessary prerequisite to submitting a tribunal claim. Although the circumstances are less severe the circumstances are equally concerning. Here it appears the EC process had been followed by the claimant. The claimant submitted a claim, with an EC certificate, four days before the time limit expired but the EC number had a mistake on it. The Tribunal returned the form to the claimant to correct the error but addressed the envelope to the wrong address.  The claimant made the claim, with the correct information, as soon as she was able to but by that time the claim was out of time. As a result the claimant’s claims of unfair dismissal was struck out. Again, an analysis of the initial tribunal decision by the EAT did not find the decisions to be unlawful despite the errors of the tribunal itself (worryingly, this seems not to be a isolated incident where the tribunal’s address errors affects a claimant’s ability to have their claim heard – see Carroll v The Mayor’s Office for Policing and Crime).

Unlike the previous two cases Higgins v Home Office does not concern ACAS EC (but again (!) suggests that Tribunal staff made errors in addressing correspondence – see para 11). The claimant resigned her employment in 2007 and evidently had significant health concerns. Six years later the claimant in what was a very muddled ET1 (she was not represented) claimed she had been constructively dismissed, she submitted medical evidence that she had been too unwell to submit a claim. The EJ struck out (semantics notwithstanding) under Rule 12 of the Tribunal Rules which means the case was stopped without any hearing. The initial decision was a harsh one and the EAT allowed the appeal and remitted the case to a different EJ to consider afresh whether the claim can proceed.

So, what is the common thread in these three decisions. Leaving aside the apparent propensity of Tribunal staff to send incorrectly addressed correspondence to claimants (see Higgins, Carroll and Sterling) the issue in Carroll and Sterling is the absence of judicial discretion in the application of Tribunal Rules. While others in the union movement disagree by and large I think the addition of mandatory Early Conciliation process is by and large a positive one. However, it also introduces new requirements that give rise to additional errors claimants can make. The ET system is one which was intended to be “easily accessible, informal, speedy and inexpensive”. I suspect if you were to ask the claimants in Carroll or Sterling whether their experience was one which was ‘easily accessible’ or ‘informal’ you may find the answer is negative.

The Rules imposed by the last Government (which in respect to EC are, I think, positive) allowed no discretion for the exceptional case, such as the claimant in fear of her safety or the claimant whose claim is late because of Tribunal sent a form to the wrong address. The result is claims in such circumstances are legitimately refused lawfully whilst at the same time presenting a barrier to justice. That dichotomy needs to change.

More broadly however for employee representatives the cases above also offer a reminder on the need for care when presenting claims. I, like many reps, too frequently leave submitting claims to the very limits of the limitation period, not necessarily out of design but because of workload. That may often be a mistake – had the claimant in Sterling submitted the claim three week’s before the limitation period ended rather than four days previously there is every chance the error (if there was one) would still have been caught in time even if there was an error in the claimant’s address. Likewise, how often do we cross check the ACAS EC number we provide on the form (or check we’ve submitted one) before submitting? Failing to do so could result in a employee being deprived of the opportunity of presenting their case. And again, do we ensure the claim and tick boxes match and the actual nature of the claim is clearly spelt out (especially if a claim form is written by an employee rather than a rep – which may not be advisable but frequently happens). Failing to do so gives a Tribunal the opportunity – however unfairly – to strike out a claim.

Cases:
Cranwell v Cullen [2015] UKEAT 0046_14_2003

Sterling v United Learning Trust [2015] UKEAT 0439_14_1802

Higgins v Home Office & Anor [2015] UKEAT 0296_14_0605

Carroll v The Mayor’s Office For Policing And Crime [2015] UKEAT 0203_14_0902

A Box Ticking Exercise

tick-box Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.”

In other words, since the since the introduction of employment tribunal fees if a claim is made but that claim is not accompanied by either the relevant fee or an application to HMCTS for a remission of that fee the claim will be rejected meaning the claim will not be heard.

Applications for a fee remission are normally completed on form EX160. Unfortunately, it is not open to an applicant to complete a form online; this means a claimant can submit a claim online but if they wish to make an application for remission they should tick the box stating this and send the EX160 from by post within seven days.

It is a needlessly complicated system, and one employer has recently tried to manipulate to argue a claim should be rejected. In Deangate Ltd v Hatley & Ors [2015] UKEAT 0389_14_2603 three claimants submitted an online ET1 one day before the limitation period for lodging the claim expired. However, the claimants did not pay the fee but stated that they would be making a fee remission application (which they did). However the EX160 was received by the Tribunal after the limitation period. The question, therefore, is whether the ET1 was, on the date of submission online, “accompanied by a  … remission application”.

As Langstaff P noted, ” If “ticking the yes box” did not amount to making an application this would have the unhappy consequence that in practice forms could be submitted online only by those with the funds to pay fees, and would disadvantage those who had internet access but no resources: but this, again, is not a necessary feature of the online submission of claims.”

In conclusion is was found that

Since it is not in dispute that each Claimant ticked the appropriate box, and my conclusion that to do so amounted to an application is one wholly of law, there is no other conclusion she could have reached.  Despite the considerable thought that Mr Pearson has put into his submissions, the appeal fails. It does so because I accept the Intervener’s argument that what happened in the case of each of the Claimants was that an application for remission of fees did actually accompany the claim, being made in the same online submission as the claim even if it was only fleshed out when Form EX160 was later sent in.

The decision is a welcome one but one, I am sure, that was taken with a good helping of pragmatism as it would have required HMCTS to completely rework its system. It is notable that the Secretary of State for the Ministry of Justice was invited to intervene in the case and it was the intervening Counsel’s arguments that was to prove decisive in the judgement.

For my part I cannot see how, given the tick box states whether the applicant ‘intends’ to make an application and the form by which this is done (the EX160) is not part of the application how ticking a box amounts to ‘an application’. That is not a problem with the legislation but with the pretty shambolic implementation of the remission process by HMCTS. Still, HMCTS will be thankful the President of the EAT has saved them some blushes (and,importantly, allowed claimants the opportunity to present their case).

Whistleblowing: not just and equitable

wbA scenario: Sarah, who is an employee, suspects that the company’s finance officer is ‘cooking the books’ by skimming company funds into his personal accounts having come across a printed document left on the printer in the office.  Concerned about this Sarah reports her concerns to the company’s HR director and explains that she thinks the finance officer who assures her she will investigate and handle the situation.

The following week the worker applies for a promotion opportunity in the company and on the 19th September is told her application is unsuccessful, the reason given is she is not a ‘good fit’ for the role and there were other better qualified candidates.

Unknown to Sarah the HR director and finance officer are good friends. Without investigation the HR director decided that there was no substance to allegation of theft because, being a friend, he knew that the finance officer was a person of impeccable character. And upon hearing that Sarah had applied for promotion and was about to be offered the role the HR Director directed the interviewing officer not to give Sarah because she was a troublemaker but to tell her she was simply not the best candidate for the job.

Then on 19 December (exactly 3 months after the unsuccessful application) at a Christmas company do the HR Director having had one too many drinks Michael, the HR Director’s PA, blurted out to Sarah that the reason she was not successful for the job was because she had made the complaint to the HR Director that the finance officer had defrauded the company and that the complaint had been brushed under the carpet and not been investigated.

Distraught, the one week later ater collecting her thoughts Sarah files an Employment Tribunal claim alleging that the rejection of the job was a detriment for whistleblowing.  After discovering her allegation had not been investigated Sarah also reports the alleged theft to the Police. Their investigation reveals the finance officer had been stealing from the company for many years and he is convicted and imprisoned for theft.


Sarah’s complaint to the Employment Tribunal would be a claim under section 47B of the Employment Rights Act 1996 (the ERA) which stipulates that a “worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” On the facts as set out above Sarah would have a strong case that she was subjected to a detriment for having made a protected disclosure. However, section 48 of the of the ERA directs Employment Tribunals that they “shall not” consider a complaint unless the claim is submitted within three months of the “the date of the act or failure to act to which the complaint relates” (section 48(3)(a)). For Sarah that act complained about is the failure to promote her, and that happened on 19 September. Therefore, the three months would expire on 18 December.

There is clearly an unfairness here; soon after Sarah was aware of the claimed unlawful act she initiated proceedings but despite the clear evidence that she has acted quickly and was penalised for blowing the whistle on a serious matter she would appear not to have any legal redress for the wrong done to her.

It was this precise issue that was addressed by the Employment Appeal Tribunal in  McKinney v London Borough of Newham [2014] UKEAT 0501_13_0412. The claimant had submitted that the time limit for making a complaint detriment because of whistleblowing ran from the point he became aware of the detriment (in his case, when he received an outcome through the post), not the day the grievance outcome (the alleged detrimental treatment) was sent. Clearly, without any real enthusiasm, the EAT at paragraphs 6 and 7 found the effective date in which to submit a claim begins on the date the detriment takes place “whether or not he is aware that a detriment has been suffered”:

(6) It seems to me that the current state of the authorities is less than satisfactory.  Nevertheless, a clear thread is now emerging (see Mensah; Virdi; Garry; Warrior Square) which points towards the counter-intuitive position that time begins to run against the Claimant relying on a detriment, both under the Employment Rights Act and the Equality Act whether or not he is aware that a detriment has been suffered.  I agree that the wording of section 48(3) Employment Rights Act is focused on the employer’s action (or omission) and that a detriment may be suffered without the Claimant being aware of it.  For example, a difference in treatment which may be on the grounds of race (see Garry).  Indeed section 48(4)(b) provides that a deliberate failure to act shall be treated as done when it was decided on, not, I would add, when the Claimant learned of the omission.  That is consistent with the Mensah line of authorities in relation to the employer’s act.  Whilst the need for knowledge is reinforced by the Supreme Court in Barratt when considering the effective date of termination I accept that section 97(1)(b) Employment Rights Act raises a different question from section 48(3).  The Claimant is entitled to know that he is dismissed before the dismissal takes place.  He may suffer a detriment without that knowledge.

(7)           In these circumstances, and being unimpressed by Mr O’Dempsey’s public policy argument, I am driven, without enthusiasm, to accept Ms Balmer’s submissions as a matter of construction and authority.  The Employment Judge was right to treat time as running from the date of the Respondent’s grievance decision, 8 October.  By way of analogy, time runs for bringing an appeal to this Tribunal from the date the Employment Tribunal Judgment is sent to the parties, not when it is received by them.  Thus, the section 47B complaint was out of time.  The Employment Judge went on to consider the reasonable practicability escape clause and rejected it (paragraph 32); there is no extant appeal against that ruling.

On the basis of the legislation I think the EAT are right but it is clearly an unpalatable state of affairs that can lead to injustice and gives employers an opportunity to discriminate against whistleblowers and still evade legal scrutiny. I do not know if this decision is being appealed but it seems to me that in a case such as Sarah’s she has been deprived of her right of legal redress that potentially raises Article 6 ECHR issues (along similar lines to that advanced in Williams v Ministry of Defence [2012] UKEAT/0163/12/JOJ.

The clearest change that needs to be effected, it seems to me, is for section of 48 of the ERA to be amended so as to align itself with section 123(1) of the Equality Act 2010. Although the time limit provisions in the ERA are nearly identical to those in the EA 2010 an out of time claim may be allowed where it is just and equitable to do so, a provision the ERA omits. The Court of Appeal has accepted that whisteblowing protections are anti-discrimination laws (see Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). Relying on the House of Lords’ finding that there is a public interest in discrimination cases being heard set out in Anyanwu and Another v. South Bank Student Union [2001] UKHL 14 LJ Kay commented that “in my judgment the same or a similar approach should generally inform whistleblowing cases” (paragraph 32). And so, were an out of time whistleblowing claim allowed to because it was “just and equitable” to do so then there would be a strong public policy reason to allow the claim to proceed. In short, Sarah would have a good chance of getting her day before the Tribunal.

The difficulty is that the construction of the right to lodge a claim in the ERA does not permit an Employment Judge to hear such a claim – that needs to change. If it doesn’t then whistleblowers will be deprived their right to challenge unscrupulous employers.

For reps wanting to understand whistleblowing law I recommend a visit to the Public Concern at Work website.