Patel v Babcock Airports Ltd

An Employment Judge may summarily reject a review application under rule 35(3) only where that process can fairly resolve the application. A material factual dispute, including whether a party received a notice sent by email, cannot fairly be resolved by making a credibility finding on the papers without further enquiry.

The presumption of receipt for electronic communications under rule 61(2)(b) is rebuttable. An applicant’s direct assertion of non-receipt may, if accepted, discharge the burden of proving the contrary. On a review of a strike-out for procedural default, the Tribunal must make a broad assessment of the interests of justice.

The claimant brought an unfair-dismissal claim. The Employment Tribunal sent him an email warning that his claim might be struck out for non-compliance with a disclosure order. He did not respond and the claim was struck out.

His solicitors promptly sought a review, asserting that he had not received the warning email. The Employment Judge refused the application summarily, finding that he was not telling the truth because the email had been sent to his usual address and earlier Tribunal emails had been received.

The claimant appealed. The central issue was whether that disputed issue of receipt and credibility could properly be determined under rule 35(3) of Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

1. Appeal allowed. The decision refusing a review could not stand. The matter was remitted for a review before a different Employment Judge.

2. Rule 35(3) permits preliminary paper consideration of review applications, and many applications can properly be rejected in that way. It is not, however, an appropriate mechanism for determining an important disputed question of fact. The claimant’s assertion that he had not received the email raised such a question.

3. The Employment Judge did not refuse the application simply because the claimant had supplied insufficient evidence of non-receipt. A signed assertion of non-receipt, if accepted, could itself be evidence capable of discharging the burden imposed by rule 61(2)(b). Instead, the Judge made an adverse finding of truthfulness from the use of the usual email address and receipt of earlier emails.

4. That finding could not fairly be made without further enquiry. Even correct transmission to the correct address, with no error message, did not necessarily establish that the email was received or read. A transmission fault, mail-provider problem, or computer-system problem could explain non-receipt.

5. On remittal, the Tribunal should investigate its email records and the claimant should provide a signed statement and any supporting evidence. If the email was not received, the review application would be very strong. If it was received but not read or acted on, the Tribunal must still make the broad interests-of-justice assessment described in Thind v Salvesen Logistics Limited, [2010] UKEAT/0487/09/DA. Similar considerations applied although this was not a breach of an unless order.

• Employment Appeal Tribunal: allowed the claimant’s appeal against Employment Judge Hill’s refusal, dated 20 July 2011, to review the strike-out judgment of 11 July 2011. The review was remitted to a different Employment Judge.
• Employment Tribunal: struck out the unfair-dismissal claim after the claimant did not respond to a notice concerning non-compliance with a disclosure order.