D Carabott v London Borough of Newham

An Employment Tribunal may determine the provenance and receipt of a dismissal email from circumstantial documentary evidence. Oral testimony is not invariably required to establish that a document was sent or received.

Where the Tribunal’s factual inferences were open to it on the evidence, an appeal based on absence of evidence or perversity will fail. A perversity appeal succeeds only where the decision is irrational, outrageous, illogical, or plainly wrong, rather than merely a conclusion which the appellate court might not itself have reached.

The appellant, an HGV driver, was summarily dismissed for conduct in July 2020. He began ACAS early conciliation on 12 October 2020 and presented Employment Tribunal claims, including unfair dismissal, on 10 December 2020.

At a preliminary hearing, the Tribunal found that the dismissal outcome email and attached letter had been sent and received on 10 July 2020. It further found that the appellant had read the letter, or had a reasonable opportunity to do so, by 11 July 2020. The claims were therefore out of time because early conciliation had not begun within the primary limitation period under section 207B of the Employment Rights Act 1996.

The appeal challenged those factual findings on the grounds that there was no supporting evidence and that they were perverse.

1. Appeal refused. The Tribunal was entitled to find that the dismissal email and attached letter were sent and received on 10 July 2020. Three documents provided a sufficient circumstantial evidential basis: the printed email, the union representative’s email of 31 July 2020 recording receipt on 10 July, and the appellant’s ET1, which gave 10 July as the termination date.

2. There is no rule requiring oral testimony in an Employment Tribunal to prove a document’s provenance. The absence of sworn evidence from the sender did not prevent the Tribunal from making its finding from the documentary material.

3. Applying Gisda Cyf v Barratt, the relevant date was when the appellant read the dismissal letter or had a reasonable opportunity to discover its contents. The Tribunal was entitled to infer from the appellant’s expectation of an outcome, his anxiety about the disciplinary process, the clear email subject and attachments, and the evidence about his and his wife’s use of the inbox, that the letter was read by 11 July 2020 at the latest. Alternatively, he had a reasonable opportunity to read it by then.

4. Early conciliation began after the primary period had expired. Section 207B of the Employment Rights Act 1996 did not therefore extend time for presenting the claims.

5. The findings were permissible evidential inferences. They were neither irrational nor illogical, and did not meet the stringent test for perversity. The Tribunal’s conclusion that it lacked jurisdiction stood.

• Employment Appeal Tribunal: Appeal dismissed; the Tribunal’s finding that the claims were time-barred was upheld.
• Employment Tribunal, London East: Judgment dated 2 October 2023. Following a preliminary hearing on time limits, it held that it lacked jurisdiction because the claims had been presented out of time.