According to tribunal rules, ACAS has to send an early conciliation certificate to claimants by email if the claimant provides an email address. In Galloway v Wood Group UK Ltd, the Employment Appeal Tribunal (EAT) held that the expression "an email address" means an actual email address and not an address that has never been set up or registered to a user.
Basic facts
After instituting proceedings, Mr Galloway provided ACAS with the email address of his union representative so that they could send him his early conciliation certificate. The address he provided was missing out the full stop between the representative's first name and last name.
The certificate was sent to the address that Mr Galloway supplied but as it did not exist, his representative did not receive it. However, nor did it “bounce" back, which would have alerted ACAS to the fact that it had not been delivered. By the time the error was picked up (when ACAS sent a copy of the certificate to Mr Galloway’s personal email address) the claim was out of time.
Mr Galloway argued that time had actually started to run when ACAS sent a copy of the certificate to his personal email address, not when the abortive email message was sent to the incorrect address that he had provided. Alternatively, he argued that the tribunal should extend the time limit as it had not been “reasonably practicable” for him to present his complaint before the end of the three-month period.
Relevant law
Regulation 9(2) of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 requires ACAS to send an early conciliation certificate to a prospective claimant by email if the prospective claimant "has provided an email address" in the online form.
Section 207B of the Employment Rights Act 1996 states that when claimants contact ACAS before instituting proceedings, that is deemed to be Day A. This stops the clock on whatever time limit applies to the claim. Day B is the day that the complainant receives their early conciliation certificate, which starts the clock running again.
Tribunal decision
Despite the absence of an "undeliverable" message, it was accepted that it was not a "valid" email address and that whatever had become of the email it had not been received by Mr Galloway’s representative.
However, the tribunal rejected both Mr Galloway’s arguments, holding firstly that ACAS had fulfilled its duty by sending an email, albeit to an invalid address; and secondly that it had been “reasonably practicable” for him to present his claim in time.
EAT decision
The EAT held that the expression "an email address" means an actual email address and not, as here, an address that has never been set up or registered to any user or users. Parliament, held the EAT, could not have intended the words "an email address" to include invalid addresses that could not be recognised as an email address by a server.
If a computer sever cannot recognise the data as an address then it cannot constitute one, no matter how closely (or not) it resembles one. Since the object of the form is to enable communication, the intention must have been to solicit an email address that could be used to send the certificate. It follows that, if no email address was supplied and if the ACAS attempt to send the certificate had not been effective, then Step B had not been taken and the claim was not out of time.