TIME LIMIT

Initial Electronic Security Systems Ltd v Avdic

EAT: Burton J (President): 8 June 2005

The claimant sent a claim form, making a complaint of unfair dismissal, by e-mail at 4 pm on the day on which the three-month period, prescribed by section 111(2) of the Employment Rights Act 1996 for the presentation of the complaint, expired. There was no reason for the claimant to doubt that the e-mail had been sent. Having received no response, four or five days later the claimant made inquiries and was told that the e-mail had not been received. She then presented the claim by hand to the tribunal office two days later. The tribunal found that it was reasonable in the circumstances for the claimant to have assumed that the claim would have been received within the time limit; that it was not reasonably practicable for the complaint to have been presented in time; and that it had been presented within a reasonable time thereafter. The tribunal accordingly held that it had jurisdiction under section 111(2) to consider the claim.

The employers appealed.

BURTON J (PRESIDENT) held:
Unless a claimant seeking to present a complaint could take the benefit of the ordinary course of the post, or similar, rule, it would be essential for him to show, in order to get the benefit of section 111(2)(b) of the Employment Rights Act 1996, that presentation was not reasonably practicable within the three-month period, but provided the claimant was reasonably entitled to expect that the complaint would arrive in time, and that had been prevented by some unforeseen circumstance, it did not matter why he had waited until the last moment. A tribunal was entitled to find, where there was no indication to the contrary, that the reasonable expectation of the sender of a claim form by electronic mail was that it would arrive within a very short time thereafter, and eight hours before the expiry of the time limit was a sufficient period in which it could reasonably be expected that it would arrive. The issue of whether the claimant had presented her claim within a reasonable period thereafter was almost entirely one of fact and there were no grounds for interfering with the tribunal's conclusion that she had acted promptly once she discovered the e-mail had not been received.

The appeal was dismissed.

Appearances: Neil Downey (Ricksons, Preston) for the employer; the claimant did not appear and was not represented.