Software Box Ltd v Gannon

Presentation of an employment tribunal claim is a discrete act. A claim is presented when received by the tribunal, whether or not it is later rejected, struck out, amended or determined. There is no separate statutory or procedural concept of acceptance or valid presentation.

Where an earlier claim was rejected for non-payment of a fee, the rejection did not necessarily prevent a tribunal from considering whether a later claim was presented within a reasonable further period because it had not been reasonably practicable to present that claim within three months. The tribunal must focus on the claim before it and apply the reasonable-practicability test to the claimant’s actual understanding, including whether any ignorance or mistaken belief was reasonable and whether reasonable inquiries should have been made.

The claimant was dismissed on 4 October 2013. She presented an unfair-dismissal claim on 24 December 2013 and applied for fee remission. The remission application was not received, and a later notice requiring payment was sent to her former representatives rather than to her.

The fee was not paid by the specified date, and the first claim was rejected. After learning of the rejection on 4 April 2014, the claimant promptly borrowed the fee and presented a second claim. The Employment Judge extended time, finding that it had not been reasonably practicable to present the claim earlier.

The employer appealed, arguing that the first claim had been presented within time and therefore section 111 could not be satisfied in relation to the second claim. The central issues were the meaning of presentation and the proper application of the reasonable-practicability test.

1. Appeal allowed and case remitted. The Employment Judge’s reasoning was flawed because it relied on concepts of a claim being “accepted” and “validly presented”, neither of which was found in the statute or the applicable procedural rules.
2. A claim is presented when the completed claim form is received by the tribunal. Presentation is separate from subsequent rejection or determination. Once presented, a claim may be rejected, struck out, amended, modified, withdrawn or determined, but there is no anterior process of acceptance. This was consistent with Hammond v Haigh Castle & Co Ltd.
3. The focus under section 111 of the Employment Rights Act 1996 is the complaint presented for consideration at the relevant time. The fact that an earlier complaint was presented within three months and later rejected did not, as a matter of principle, preclude consideration of whether a second claim was one which it had not been reasonably practicable to present earlier.
4. The reasonable-practicability inquiry required proper application of Wall’s Meat Co Ltd v Khan. A physical or mental impediment, including ignorance or mistaken belief, may suffice only if it was reasonable. The tribunal had to consider whether the claimant’s belief remained reasonable after the February letter indicating that a fee was payable, and whether she should have made further inquiries.
5. The tribunal also had power under Rule 5 to extend the time for payment of a fee, even after expiry. The fee process was legally a decision of the tribunal, although administered by the Central Processing Unit. An interpretation preserving a judicial route to remedy exceptional unfairness was preferable, with Article 6 of the European Convention on Human Rights and Fundamental Freedoms reinforcing that approach.
6. The matter was remitted to the same Employment Judge for reconsideration in accordance with the judgment. The Judge was not bound by his previous inclination.

• Employment Appeal Tribunal: allowed the appeal against the Employment Judge’s decision and remitted the matter to the same Judge for reconsideration.