Consignia plc (formerly The Post Office) v Sealy

For the purpose of section 111(2) of the Employment Rights Act 1996, a complaint sent by post is not presented until it arrives at the tribunal. A claimant may rely on the ordinary course of post. Where a complaint was posted in time for ordinary delivery before the deadline but was unexpectedly delayed, it may be found not reasonably practicable to present it in time.

The ordinary course of post is assessed objectively and on evidence. A claimant's subjective expectation, including supposed special knowledge of postal procedures, cannot establish reasonable practicability. The court gave guidance that first-class post should ordinarily be expected on the second day after posting, subject to non-delivery days, while confirming that actual earlier receipt is effective presentation in employment tribunal proceedings.

The respondent, a postman summarily dismissed for gross misconduct, lodged an unfair-dismissal complaint after the three-month period had expired. He had posted the form by first-class post on the Friday before a Sunday deadline. The Employment Tribunal held that it was not reasonably practicable to present the complaint in time because he reasonably expected Saturday delivery and the post was delayed.

The Employment Appeal Tribunal refused to direct the employer's appeal to a full hearing. The employer appealed to the Court of Appeal, contending, among other matters, that there was no evidential basis for the Employment Tribunal's finding about expected Saturday delivery and that its extended reasons conflicted with its summary reasons.

The central issue was whether the evidence supported the finding that the complaint could reasonably have been expected to arrive within time in the ordinary course of post.

1. Appeal allowed unanimously. Hart J's judgment was agreed by Latham LJ and Brooke LJ. The Employment Tribunal's decision was set aside and the matter was remitted to a differently constituted tribunal.

2. Under section 111(2) of the Employment Rights Act 1996, the established approach permits an extension where a claimant has done an act within time which would ordinarily result in timely presentation, but an unforeseen event prevents that result. If that condition is met, the reason for waiting until late in the limitation period does not itself defeat the claim. Whether the condition is met is a question of fact on the evidence.

3. The Employment Tribunal's summary reasons found that, in the ordinary course, the letter would have arrived on Saturday or Monday. Its view that Monday delivery could be treated as timely was wrong in light of Swainston v Hetton Victory Club Ltd [1983] ICR 341. Its later finding that Saturday delivery was reasonably expected was inconsistent with that finding and unsupported by evidence. The claimant bore the burden of establishing the jurisdictional facts. His former employment with the Post Office did not, without evidence, justify an inference that he had special knowledge which removed the ordinary risks of postal delivery.

4. Brooke LJ gave additional guidance, with which the other members of the court agreed. A complaint is presented when it reaches the tribunal office. For postal delivery, the expected delivery date is assessed objectively by the ordinary course of post. By analogy with the CPR, first-class post may ordinarily be expected on the second day after posting, excluding Sundays, bank holidays, Christmas Day and Good Friday. A claimant who posts only one day before the deadline therefore takes a risk; an unexpectedly delayed letter may nevertheless found an extension.

5. The strict deemed-service rule in Godwin v Swindon BC [2001] EWCA 1478 did not govern tribunal claims. Actual early arrival of a complaint is effective presentation, even if it precedes the objectively expected date. On remittal, the tribunal was also to decide whether it would be just to extend time under section 111(2)(b).

• Court of Appeal: Allowed the employer's appeal in [2002] EWCA Civ 878, set aside the Employment Tribunal's decision and remitted the matter to a differently constituted tribunal.
• Employment Appeal Tribunal: On 11 June 2001, refused to direct that the employer's proposed appeal from the Employment Tribunal should proceed to a full hearing.
• Employment Tribunal: In a decision promulgated on 2 February 2001, with extended reasons dated 21 March 2001, held that the late unfair-dismissal complaint should be considered because timely presentation had not been reasonably practicable.