Galloway v Wood Group UK Ltd

For the purposes of paragraph 9(2) of Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254, an email address means an actual address capable of being used to send the early-conciliation certificate. A sequence of characters which a server cannot recognise and forward is not an email address merely because it resembles one.

Accordingly, where no actual address has been provided and an attempted email transmission is ineffective, the certificate is not deemed served by email. The period suspended by early conciliation does not resume under section 207B(2)(b) of the Employment Rights Act 1996 until the statutory step is effectively taken.

The claimant was dismissed on 7 June 2017 and began ACAS early conciliation before the ordinary time limit expired. His representative's email address was entered on the ACAS form without a full stop. ACAS sent the early-conciliation certificate to that non-existent address, and it was not received.

The Employment Tribunal held that ACAS had complied with its duty by sending the email to the address supplied. It therefore treated the early-conciliation suspension as having ended and found the unfair-dismissal claim out of time. It also rejected an extension under section 111(2) of the Employment Rights Act 1996; that ruling was not appealed.

The appeal concerned whether the words an email address in paragraph 9(2) of Schedule 1 to the Regulations included an address which had never been set up or registered to a user.

1. Appeal allowed. Paragraph 9(2) of Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 requires ACAS to send the certificate by email only where the prospective party has supplied an actual email address.

2. The statutory form seeks an address in order to enable communication. Parliament therefore intended an address capable of being used to send the certificate. A purported address which has never been created or registered, and which a server cannot recognise and forward, is not an email address for this purpose. It is no different in principle from data which cannot operate as an address.

3. The fact that the erroneous entry resembled an email address did not satisfy the requirement. Nor did responsibility for the error, or the potential loss of an important right, bear upon the construction of the provision. Those matters may be relevant to other statutory mechanisms, but not to the meaning of paragraph 9(2).

4. The parties agreed that, if no email address had been supplied and ACAS's attempted transmission was ineffective, the statutory step fixing Day B under section 207B(2)(b) of the Employment Rights Act 1996 had not occurred. On the court's construction, that was the position here. The time limit had therefore not resumed when ACAS sent the certificate to the non-existent address.

5. The court did not decide the position where an actual but incorrect email address is supplied. It observed that statutory time-extension provisions might then be material.

• Employment Appeal Tribunal: Allowed the claimant's appeal and rejected the Employment Tribunal's conclusion that transmission to a non-existent email address satisfied paragraph 9(2) of Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254.
• Employment Tribunal: Held that ACAS had fulfilled its duty by sending the certificate to the address supplied, and held the unfair-dismissal claim out of time. Its refusal of an extension under section 111(2) of the Employment Rights Act 1996 was not appealed.