ET1 form submitted to the wrong address given to me by the ET people. now it is late

[Jonni730]

Hello, I have had considerable trouble submitting my ET1 form for unfair dissmissal.

Initially I try to complete the PDF online form as advised by the Citizens Advice Bureau. I use a apple computer and could not fill in the fields. I was told by the 0845 help line that this was an issue with apple and the browser. I then went to an internet cafe to use a PC. I filled the form and pressed the submit button. I received no confirmation on screen. The next day I tried to call the East London Employment Tribunal office but could not get an answer and I tried several times. I then tried calling the central london et and spoke to a man there. They had no record of my ET1 form. He advised me that I should fill out the PDF and save it to my computer and then email it to east london as an attachment. He then dictated the email address londoneastet[at]hmcts.gsi.gov.uk he then changed it to eastlondonet[at]hmcts.gsi.gov.uk, I went through the address with him twice as he seemed unsure the first time.

Some time elapsed befoer I submitted my ET1 as I had the chance to see a lawyer and refine it. I then sent my completed ET1 form attached to an email on the 19th May 2013 11:23am. However I did not receive confirmation again and it turns out that I was given an incorrect address for the East london ET which is actually eastlondon[at]hmcts.gsi.gov.uk so there is no 'et' at all in the address which is the only office on the contact list I have found that does not use the 'et'. I called the east london office on the 3rd June 2013 and spoke to a lady who informed me they had not received my form. she said send it again , so I forwarded it to them so as they would see the original date that it was sent and immediately got a confirmation back that they had at least received the email, this was on the 3rd and my last day of the 3 month and 1 day period was the 27 may 2013, which I was well aware of.

I phoned the central office and asked for the east london office email and sure enough they gave me the wrong one again. They have set me a tribunal date and given me a case number. I am still very anxious that the company I am claiming against can say that I was out of time even know I initially sent the form on the 19th May 2013.

Should I be worried about this? I feel I have been let down a bit by the ET people and the anxiety comes from not really knowing how this specific situation plays out especially as I have spent a considerable effort getting my case together. Any advice would be most appreciated as I am having to fight this case myself.

Please note I have had to change the @ symbol for [at] as the email addresses are purely to outline what went wrong and not for use.

[becky2585]

Yes, I think you do need to be worried! It sounds as though the form was only received after the three month deadline? Your best bet is to hope the respondent doesn't pick up on that, but if they receive legal advice they will certainly challenge the point.

[Jonni730]

Thanks for the reply Becky2585,

That situation is totally unsatisfactory as you would expect. I sent my ET1 form on the 19th may 2013, which I have a record of, in good faith to the east london et. I have the name of the man I spoke to. This is a clerical error on their part. The address I was told came from the ET people directly. They misinformed me. not only that but they are still misinforming people. It is not myself that is at fault here. I know that the judge has discretion to allow the hearing. It seems to me that this is good grounds for allowing my ET to go forward. Government departments are accountable for their mistakes. I have been left without employment due to unfair dismissal by a man who has failed to follow any part of the ACAS code. This means I am entitled to a fair hearing. It is simply unfair for me to be denied this due to a clerical error on the part of the ET office. I will not be accepting that I submitted my form late as it is not the case. As you can probably tell I am not at all happy with how this scenario has come about. The ET offices don't seem to work in a joined up way even though they are dealing with the same issues and come under the same banner of government office which is appalling. If anyone has any constructive advice as how to go about making sure my submission is understood to have been submitted on the correct date then I would appreciate the advice. Maybe as the wrong address is being given out someone else has had this experience. Any idea's are appreciated. Maybe there is a higher power I can talk to about this, an MP or something. I'm not at all satisfied with the "lets see how it plays out" situation. I am sure the respondents lawyer will be aware of the late submission issue. As I said I have proof that I sent an email on the 19th May 2013 with my ET1 form. As I didn't receive a post failure notification has this email found it's way to an inbox somewhere? I will be asking if east london's email has ever been eastlondonet. Thanks for anybodies advice.

Jonni

[Emmzzi]

Can you prove any misinformation was given? Real solid proof? Also addresses are easy to check on the web.

[becky2585]

Can you prove any misinformation was given? Real solid proof? Also addresses are easy to check on the web.

 

Yes, and I think the Tribunal will certainly ask why you didn't check online. They will also look at whether it was practicable to either post it, or hand deliver it. They will also consider whether it was reasonable for you to have waited at least two months before submitting the form, ie could you have started the process sooner. It's a very difficult test to satisfy, so be prepared! Finally, if they do find that it wasn't practicable to submit within three months, they will go on to consider whether you then submitted it within a reasonable further time frame.

 

I do have every sympathy for you - the staff acted very poorly in providing the wrong email address. But the Tribunal will very much place the burden on you to find the correct information - and if you have Internet access, that will be difficult for you I'm afraid.

 

Hopefully if that situation does arise you will have a sympathetic judge, but you will need to be able to produce a robust case as to why it couldn't have been submitted sooner!

[steampowered]

The Employment Rights Act 1996 sets out when you are allowed an extension. You are only allowed an extension if it was not "reasonably practicable" to file the ET1 in time. There is no higher power who is able to change the law for you. The legislation does not permit judges to extend the time limit in their discretion and there is no extension on general grounds of fairness. This is test is generally applied very strictly. The vast majority of people asking for extensions fail.

 

However, there is some case law which might help you. Souls (London Ltd) v Matthews UKEAT/0395/10. Mr Matthews searched for the "Industrial Tribunal" on the internet and consequently submitted his unfair dismissal claim online to the Office of the Industrial Tribunals and Fair Employment Tribunal in Northern Ireland. It should have been presented to the Bedford employment tribunal. Once the Northern Ireland tribunal told him of his error, Mr Matthews sought advice and correctly presented his claim ten days later. An employment judge permitted the claim to proceed and Solus appealed.

The EAT held that, while the mistake in presenting his claim to the wrong tribunal was not necessarily fatal to his claim, Mr Matthews first had to show that the mistake had been a reasonable one for him to have made. In this respect the EAT had regard to the observations of Brandon LJ in Wall's Meat Co Ltd v Khan [1979] ICR:

 

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a compliant within [time], if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made ..."

 

There is not much you can do about it now. You will have to see whether the employer says your claim is out of time in his Defence. If so, he will likely ask for your case to be struck out at the CMC. You will need to have a read of the case law and come prepared with arguments, based on the case law, why it was not reasonably practicable for you to present the claim in time. The judge will start from the position that your claim should be struck it out, it will be YOUR job to research the case law and convince the judge that he has a legal basis for allowing the claim to go ahead - the judge will not do the work of checking case law for you.

[Jonni730]

Thank you for your replies, Thanks steampower I shall read those cases to see what details were important as there does seem to be a parallel and thank you for setting out the Employment rights act etc.

The situation with checking online is obviously an issue. I originally tried the online PDF ET1 application process and when I lost confidence in it as it failed to work, I sought to speak directly to the ET offices. I found the numbers for the east and central ET's by searching online. Do you not think it is reasonable to believe the correct email was given out by the actual ET people? I thought that as a government office they would be a reliable source of information especially when that information is about themselves. I have also just discovered by sending an email again from a non microsoft mail account that a postmaster message send failure is generated. I'm not sure if any of you use the recently changed hotmail that is now called outlook but it is receiving many many complaints about it not working correctly. I am quite sure that this is also why I seem to no longer receive a bounce back message when I always did before. I am currently trying to get some evidence to prove this. So it seems a couple of things have occurred that have conspired against me to bring about this scenario as I would of quickly known that the email address I was given was incorrect had I had a notification of failure.

I will also try to get some evidence that I was given the incorrect email address although there is no guarantee that I can get this especially as I have flagged it as an issue.

In terms of the length of time it has taken me to build my ET1 form it has been a steep learning curve for myself as I had no idea of my legal position at the beginning of the process and so have had to do a lot of reading of case law and visiting the CAB. Initially I was dismissed on the 26th February, this I did not find out until 2nd March in a text with the words "that has wrapped things up" I didn't receive my letter of dismissal until the 6th March due to it being sent to the wrong address firstly. I then went to the CAB where an appointment to see someone who deals with employment law was made for Friday 22nd March. Here I was made aware of my right to appeal. I sent my letter of appeal on the 26th March recorded delivery giving the respondent a fair time to reply.

I when I received no reply so I decided to take action to file my ET1 form. Now I read the advice notes but for me it was not clear how detailed the information should be to enter on the form, should I outline all of my grievances or just set out the basic issues. So i took a little bit of time building my case history and refining it for the form and trying to make it succinct. During this time I might add I was working hard applying for jobs filling in lengthy applications which again was quite a learning process. I was also working part time in a temporary job to try to make ends meet. At the end of April I tried to submit my ET1 form using the online form as I had been advised to by the CAB, this was to no avail so I made the call to central london ET where I was given the incorrect email address for east london. At this point I found out that a friend of mines partner was an employment lawyer. She agreed to look over my ET1 form so I sent all the info about my case to her, after not being able to get hold of her for a while and difficulty setting a meet I finally saw her which was a revelation and so I refined my ET1 form and sent it on the 19th May2013 as an email attachment as advised by the chap at central london ET to the email eastlondonet[AT]hmcts.gsi.gov.uk. As you are aware the email was not bounced back. During this time I had some important job interviews to focus on. On 3rd I rang East london ET to make sure they had my ET1 form as I had had no confirmation. The rest you know.

Again filling in this form may be easy for some people but for me this was a baptism of fire into employment law as I have always worked for reasonable people who are up front and honest and have always been a hard and conscientious worker and as such been valued in the work place and never been faced with these issues. But I sure understand now and am ready to fight for my rights except for this stumbling block.

Edited June 9, 2013 by Jonni730

[steampowered]

Yes, I think it is reasonable to use the address given by ET representatives. If you did not receive a bounce back I think that is fair enough. Fingers crossed for getting the extension.

 

For the purposes of the 3-month limit, the effective date of dismissal is the expiry of your notice period. For example, if you were dismissed on 26 February and had two years' service, your notice entitlement is two weeks and the effective date of dismissal would be 12 March... thus until 11 June to file a claim. You do not get a notice period if you were dismissed for gross misconduct. Does this help?

[becky2585]

Yes, I think it is reasonable to use the address given by ET representatives. If you did not receive a bounce back I think that is fair enough. Fingers crossed for getting the extension.

 

For the purposes of the 3-month limit, the effective date of dismissal is the expiry of your notice period. For example, if you were dismissed on 26 February and had two years' service, your notice entitlement is two weeks and the effective date of dismissal would be 12 March... thus until 11 June to file a claim. You do not get a notice period if you were dismissed for gross misconduct. Does this help?

 

...unless the OP was paid in lieu, just to cap it off - in which case it would be the earlier date!

[Emmzzi]

when you are discussing with the court leave out all the "I was busy and this was new to me" stuff. It's not going to help. Everyone is busy.

[Jonni730]

Hi All,

 

Yes steampower the notice period situation is very helpful and Becky I was not paid in lieu, in fact I was not paid what I was owed in wages or through a suspension period or for notice, the only pay I had was a random amount and another random amount that he said was holiday pay, I have asked for a breakdown of the pay 3 times to no avail.

 

I have calculated what I am owed but as I didn't have a written contract I believe that I only should have a 1 week notice period, is that right? I served for 4 1/2 years but I did change my job role on the 17th may 2011 but continued working ad hoc for the company. I resumed my previous role in july 2011 so I was back in my main role for 1 year and 8 months before I was dismissed.

 

I should say that the business was taken over in January 2013 with the staff under the TUPE scheme. I also wondered that as my employer didn't send the letter of dismissal to the correct address to start with, which I have proof of, (a phone recording)which delayed my receipt of it, is this a valid reason for the extension? I received the letter of dismissal on the 6th March.

 

However even if the notice period is a week, 7 days after the 26th February is still Tuesday the 5th March making my submission date the 6th June, is that right? I do hope so as the date they actually received my ET1 was the 3rd June within the submission period. My employer may try to say it was gross misconduct due to the way he behaved I think eg no notice period etc but my behaviour does not warrant this so I should be safe there.

 

Emmzzi, I will leave out the busy and new to me stuff, although it must be relevant that I was also working hard to find myself new employment surly?

 

Again thanks for all your replies it is a great help. I shall be trying to get the evidence I require today so I can back up my claims if still need to make them, I shall let you know how I get on with this.

Edited June 10, 2013 by honeybee13
Formatting.

[becky2585]

Just one question which may assist you - why were you dismissed?

[steampowered]

4 years continuous service = 4 weeks notice period. See http://www.legislation.gov.uk/ukpga/1996/18/section/86. However no notice is required if it is a gross misconduct dismissal.

 

Please give further details about what you mean by "continued working ad hoc" between May and July 2011. If you ceased to be an employee of the company during that time I guess that would be a break in continuous service. To claim unfair dismissal you need to have been continuously employed for at least two years before the effective date of dismissal (with some exceptions such as age/gender/race discrimination).

 

Unfortunately the only ground the Tribunal is allowed to grant an extension for unfair dismissal claims, is if it was not reasonably practicable for you to file the form in time. The Tribunal does not have jurisdiction to grant an extension in any other circumstances; if the Tribunal did so it would be overturned on appeal. I do not think the fact you were searching for a new job or the fact there was a short delay in receiving the dismissal letter help you with an extension... being given the wrong details by the Tribunal might.

[Jonni730]

Its quite a long story.

 

As I said the business was taken over. I worked 27 hours a week plus over time. The over time has always been important as the core hours were not a living wage. In the first month the new owner decided he would do all the overtime work leaving me short, I mentioned this to him and started to get more of the outside core hours deliveries, he then decided to cut my over time wages.(breach of contract)

 

in the second month my shortness of money was catching up with me so I tried to find a second job that would fit in with my first job. I managed to find a job that would fit with my core hours and was flexible so I could do the over time when I was needed. This job, I might add, I found so I could remain loyal to my main employment.

 

I needed to get time to do training so I asked for annual leave and was upfront about what it was for. He said he would try to find someone. He didn't so I arranged a regular contractor to come and take my deliveries. I also came in early in the morning and organised the day including doing all the morning deliveries and putting together the later deliveries for the contractor so he just had to pick them up I worked very hard which my boss was a party to.

 

I discussed the schedule with the owner and how the logistics should work. He wasn't particularly happy with my leaving at 9:45am but let me do all of the work and organising and gave me no words to the effect that I would lose my job.

 

I rearranged day 2 of my training so I could work but my boss had found someone to cover this. I kept in touch with my boss offering to come in after my first day training to organise what I could for the next day. He then called me the evening of the second day to tell me I was suspended pending a disciplinary midweek.

 

I sent him an email on the Tuesday to which I had no response. I was advised to wait for him to contact me regarding the hearing time and contents. when I hadn't heard from him by midweek/wednesday I sent a text message at 8:30 in the morning asking when I should come for the hearing. I received no reply.

 

The first thing I received was money in my account which I discovered on the following Saturday which had been put in on the Friday as wages and holiday pay with no understanding of how the amount worked out.

 

I texted my boss to ask when the disciplinary would be and I was texted back saying that he had sent a letter out Tuesday a day before the hearing was initially spoken of with words to the effect of "that was it and that he had employed someone else.

 

I did have a long conversation with my ex boss on the phone that I recorded where he is saying that on the conversation where he originally suspended me pending this disciplinary he said that he had offered me a disciplinary beginning to midweek and I was to call him. This is not what happened he also tried to say that I had just walked out which is also not a fair representation as I did a lot of work to keep things running smoothly which I discussed with him and he allowed me to do.

 

I said to him that this was not a fair representation to which he answered he was not there to be fair he's running a business.

 

So I had no formal warnings, no written warnings, no disciplinary hearing, no notice period, My wages were decreased during my employment, my final pay was not correct, He filled my position before the last date my disciplinary was to have taken place, I was not advised of my right to appeal, I can't be sure about my holiday pay being correct either.

 

I sent a letter of appeal and received no reply. This is why I have started proceedings which as you know have been somewhat made difficult.

 

Thats the situation

Edited June 10, 2013 by honeybee13
Formatting.

[steampowered]

What does the dismissal letter say is the reason for your dismissal?

[Jonni730]

Hi steampower, I saw a friend solicitor who said that as I was still doing work for the company then it can be construed as continued employment however even if it is not I was working for them before the cut of point of where the law changed to 2 years continuos employment where only 1 year was the qualifying period if this is proven to be the case I was woking for 1 year and 8 months. continued working ad hoc means that I was still doing deliveries and working at events for the company but as a contractor.

Yes I just read that it is important to establish the dismissal date regarding notice and I now know that the late receipt of the dismissal letter is not grounds thanks for the advice. I will still be attempting to get some evidence on the incorrect email address issue.

[Jonni730]

The reason is that I didn't reply to the offer of a disciplinary between Thursday the 21st and lunch time Tuesday the 26th. I can post the whole letter but I'm not sure if that is advisable on a public forum. As I said above what he said was that I was suspended pending a disciplinary midweek.

[Emmzzi]

do you mean you didn't turn up to a disciplinary? and they held it in your absence? or something else?

 

Could you please give us the exact wording (without names!)

[Jonni730]

There was never a disciplinary held. He is trying to say that he offered me one and I did not take him up on it. This is not what he said. he said on the telephone on the Thursday 21st february " I am suspending you pending a disciplinary midweek, do you want to think about it" He also admits in a later recorded conversation that the last time of disciplinary was midweek yet he sacked my on the Tuesday.

 

I was given no date or time apart from midweek. He also tried to say that because he said "did you want to think about it" that any reasonable person would understand that that meant think about whether i wanted a disciplinary or not. Where as I simply thought "of course i want to think about it". So it appears that I should have known what the 'it' represented in that sentence. being whether I actually wanted a disciplinary or not. This in my book is not at all clear from the sentence.

 

The Letter.

 

Dear xxxxx

 

With regards to your employment with xxxxx, this letter is to inform you that we are no longer in a position to hold your job open. On Thurday the 21st of February I called and offered you a disciplinary interview to review the issues I have with you and the way you left the whole team in a very bad position on Wednesday 20th and Thursday 21st last week I have had no reply to that from Thursday the 21st February till lunch time Tuesday26th February 2013 where you have still not taken me up on the offer. I had to employ someone else as the deliveries had to be made to the clients.

 

I am sorry it has come to this and wish you well in your next endeavour.

 

Yours sincerely

Edited June 10, 2013 by Jonni730

[Emmzzi]

you don't really get "offered" a disciplinary, it isn't a choice...!

[Jonni730]

Yes I know it's all very unorthodox.

[becky2585]

Just a thought, but were you self employed or on a zero hours contract?

[Jonni730]

no I was a paye employee. Why?

[becky2585]

no I was a paye employee. Why?

 

Because it may go some way to explaining your employers bizarre behaviour!

 

Have you thought about getting legal advice on this one? It's a fairly complex and muddled situation!

[Jonni730]

I have seen an employment lawyer who said my case was very strong. I will try and contact her again about this wrong email address situation although with all your advice from here I am pretty sure I have to get some evidence. I tried today bug was unable to. I will try tomorrow.