Yellow Pages Sales Ltd v Davie

A claim is presented in writing when a fixed-form written complaint is successfully transmitted through a channel held out by an employment tribunal for receiving claims. The requirement for writing does not require the document to be physically printed or displayed at the tribunal office. Electronic data packets are the means by which the written document is conveyed. A technical failure at the tribunal’s end, occurring after successful transmission, does not prevent presentation. The same approach applies whether the accepted channel is fax or online submission.

The claimant’s solicitor faxed an unfair-dismissal claim to the Employment Tribunal within the limitation period. The tribunal’s fax machine received the electronic data and issued a successful transmission report, but a technical failure meant that no printout or tribunal record was made. A further copy was sent after the limitation period had expired.

The Employment Judge held that the original claim had been presented in time under rule 1 of the Employment Tribunal Rules of Procedure. The employer appealed, contending that no claim in writing had been received. The central issue was whether successful transmission of the data comprising a written claim was sufficient presentation despite the document being lost before printing.

1. Appeal dismissed. The claim had been presented within the limitation period.
2. Rule 1 required the details of the claim to be presented in writing. The fax transmitted a written document. The data packets received by the tribunal’s fax machine were the technological means by which that writing was conveyed.
3. The requirement for writing excluded oral communications, but did not distinguish between different methods of transmitting a written document. What mattered was presentation of the complaint in a fixed form capable of being communicated to the other party.
4. The successful transmission report established that the relevant electronic data had reached the tribunal’s machine. The subsequent technical failure, which caused the document to be lost before printing or display, did not prevent presentation.
5. The reasoning was directly analogous to Tyne and Wear Autistic Society v Smith [2005] ICR 603, where successful online submission was sufficient notwithstanding later communication problems between the website host and tribunal office.
6. The Tribunal declined to rely on rule 61. It was unnecessary to decide whether that rule applied to presentation under rule 1, particularly given the subsequent repeal of the reference to fax. The decision rested on the natural meaning of rule 1 in context. The alternative limitation issue under section 111(2) of the Employment Rights Act 1996 therefore did not arise.

• Employment Appeal Tribunal: dismissed the employer’s appeal from the Employment Judge’s decision at a Pre-Hearing Review on 20 January 2011 that the unfair-dismissal claim had been presented in time.