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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/878.html Cite as: [2002] IRLR 624, [2002] ICR 1193, [2005] ICR 1598, [2002] 3 All ER 801, [2002] EWCA Civ 878, [2002] Emp LR 983

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		Neutral Citation Number: [2002] EWCA Civ 878
		Case No: A1/2001/1896

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th June 2002

B e f o r e :

LORD JUSTICE BROOKE
LORD JUSTICE LATHAM
and
MR JUSTICE HART
____________________

Between:


	CONSIGNIA plc	Respondents/Appellants
	and –
	RUSSELL SEALY	Applicant/ Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Lydia Seymour (instructed by Consignia Legal Services) for the appellants
Marc Jones (pro bono solicitor advocate) for the respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Mr Justice Hart :

1. This is an appeal by the respondents Consignia plc (formerly the Post Office) from a decision of the Employment Appeal Tribunal (“EAT”) on 11th June 2001 whereby it refused to direct that the respondents’ proposed appeal from a decision of an Employment Tribunal (“ET”) promulgated on 2nd February 2001 should proceed to a full hearing. The EAT was not satisfied that the proposed appeal raised sufficiently arguable points of law.
2. Mr Sealy was employed as a postman for nearly four years. He was summarily dismissed from his employment on the basis of gross misconduct, following a disciplinary hearing, on 9th July 2000. An internal appeal was due to be heard on 16th November 2000. The earlier date, however, was the effective date of termination for the purposes of employment legislation, if he wished to make a complaint that he had been unfairly dismissed. Section 111(2) of the Employment Rights Act 1996 provides in this context that:

“an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal –

before the end of the period of three months beginning with the effective date of termination, or

within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period.”

3. In their summary reasons (given pursuant to para 10(3) of Schedule 1 to the Employment Tribunals (Constitution etc) Regulations 1993), dated 2nd February 2001, the ET found that the complaint on form IT1 ought to have been presented on Sunday 8th October in order to be presented within the requisite three-month period, but that it was not in fact received by the tribunal office until Tuesday 10th October 2000. They concluded therefore that “the claim is nearly two days out of time.” The summary reasons then proceed as follows:

“5. The next issue (applying Section 111) was whether it was reasonably practicable for the Applicant to have presented this within time. We find that it was not reasonably practicable for him to have presented it within time because although he posted it with [sic] time on Friday 6^th October 2000 (which we find as a fact), once he posted it, it was beyond his control when it was delivered. In the event it was not delivered in course of first class mail and did not arrive until Tuesday 10. The fact that it did not arrive within time therefore was something which the Applicant could not control. The delay in its arrival was caused by delay in the post. He was not unreasonable in relying on the post.

6. There is no requirement on a party to present a claim earlier in the three month period rather than later i.e. He is simply given a three month period in which to present the claim.

In this case, because of the way the dates fall, the last day in the three month period was a Sunday. The IT1 could not of course have been presented on the Sunday because there were no deliveries on a Sunday. Nevertheless if it had at least been delivered first thing on the Monday morning in view of the absence of deliveries on a Sunday it would then have been proper to treat it as in time. Otherwise Applicant is effectively denied the full three month’s time period and given instead 3 months less one day in any case where the final day of the period falls on a Sunday. In circumstances where it makes no substantive difference (as here because nothing would have happened to it on a Sunday) this would amount to denying access to the hearing of a substantive right for purely procedural reasons.

In this case therefore, we accept that the IT1 was posted within time and that if the post had run its normal course it would have arrived if not within the time period, immediately after the end of the time period, and that end being a Sunday would have been reasonable and proper to process it first thing Monday morning.

The fact that it did not arrive until the Tuesday was quite beyond the Applicant’s control and not within his reasonable expectation.

10. For that reason the claim should be considered and the matter should be listed for a substantive hearing.”

4. In extended reasons, dated 21st March 2001, which were not very much longer than their summary reasons, the tribunal made an express finding that when Mr Sealy posted the ITI, properly addressed and pre-paid by first class post, on Friday 6th October, he had a reasonable expectation that it would be delivered next day in the course of post. The ET justified this finding in the following terms:

“6. We accept on the facts of this case that he had expected it to be delivered the next day, the 7th October, The applicant worked himself in the post office and knew the procedures. The respondents did not give evidence in this case of the performance of the postal delivery service in the area at the time, nor of any factor or circumstance that should have alerted the applicant to any different view. This expectation was therefore reasonable. It was suggested to him in cross-examination that he should not have left his application so late, but again his evidence as to his expectation was calm and clear, and we accepted that evidence.”

5. The tribunal continued:

“7. The reason why the application was not received within the time limits was the postal delay. This of course was something beyond the Applicant’s control. Once he had posted the item he could do no more than rely on the postal service to perform in accordance with his reasonable expectation.

8. There is no requirement on an applicant to present his claim any earlier than by the end of the statutory limit. To leave it towards the end may be ‘an extremely dangerous practice’ (Beanstalk Shelving Ltd v Horn 1980 ICR 273), but whether that means that it was not reasonably practicable to present in time must depend upon the facts of the case (Birmingham Midshires Building Society v Horton EAT 401/90). On the above facts found in this case it was not reasonably practical for the applicant to have presented his claim in time.

9. In this case, even if we had accepted that the applicant could not reasonably have relied upon next day delivery of the application (in spite of evidence before us), there would still have been the possibility of Monday delivery. Though that would strictly have been out of time by one day, the practical reality would have been that nothing would have been lost by that and no party disadvantaged. Not to accept the claim might then be considered to prevent him from having access to the hearing of his claim as to his substantive rights for a purely procedural reason. In the event, in this case the delivery was beyond that and was late, in terms of the applicant's expectations, by two days.”

6. The grounds of appeal advanced before us were (i) that the tribunal had erred in finding that the applicant had a reasonable expectation of his letter posted on the Friday arriving on the Saturday, (ii) that it erred in making that finding without any finding as to the time or place at which the application was posted, (iii) that it erred in promulgating extended reasons which were in conflict with its summary reasons, (iv) that it had applied the wrong test in paragraph 9 of its extended reasons in considering the issue of prejudice to the respondent, and (v) that it erred in considering the date of postage and expected date of receipt in isolation when they ought to have considered these matters as only part of the wider test of reasonable practicability.
7. In support of the third of those grounds it was submitted by Miss Seymour on behalf of the appellant that the extended reasons wholly changed the basis of the tribunal’s decision by adding a finding that the respondent reasonably expected the application to arrive on the following day. While the appellant accepted that a tribunal is entitled to review its own decision where it realises that an error has been made, it was submitted that it can only do so effectively by making it clear that this is what has been done. In the absence of evidence that the tribunal ever met again to reconsider its decision it was (submitted the appellant) impossible to say which set of reasons governed the Tribunal’s, and the decision should therefore be set aside.
8. It was further submitted on behalf of the appellant that the EAT was wrong in this case to hold that it should have regard only to the extended reasons for the purposes of the appeal.
9. These submissions proceed on the basis that the extended reasons did represent a significantly different process of reasoning from the summary reasons. I was in the end persuaded by Miss Seymour on behalf of the appellant that this was the case. The summary reasons state, as a finding, that if the post had run its normal course, the IT1 would have arrived “if not within the time period, immediately after the end of the time period” (see para 8). The Tribunal was also then clearly proceeding on the erroneous assumption that delivery first thing on the Monday could properly have been treated as within time (see para 7). That assumption was plainly wrong having regard to the decision of this Court in Swainston v. Hetton Victory Club Ltd [1983] ICR 341 that the principle in Pritam Kaur v. S.Russell & Sons Ltd [1973] QB 336 had no application to section 67(2) of the Employment Protection (Consolidation) Act 1978 (the statutory predecessor of section 111). In holding in paragraph 5 of the summary reasons that the respondent was “not unreasonable in relying on the post” the tribunal cannot be read as having decided that he was reasonably relying on the post to achieve delivery on the Saturday.
10. In the final analysis the question before this court appears to me to be whether the tribunal had evidence before it which justified the further finding made in the extended reasons as to what the respondent’s reasonable expectations had been. Before examining that issue, it is necessary to address the question why those expectations are relevant in the first place when applying section 111. The answer lies in the construction which has been placed by a consistent stream of authority on section 111 and its statutory predecessors (section 67(2) of the Employment Protection (Consolidation) Act 1978, paragraph 21(4) of Schedule 1 to the Trade Union and Labour Relations Act 1974, and rule 2(1) of the Schedule to the Industrial Tribunals (Industrial Relations etc) Regulations 1972 made under Schedule 6 of the Industrial Relations Act 1971).
11. The relevant authorities can be summarised by referring to the reviews contained in the judgments of the EAT in Burton v. Field Sons & Co Ltd [1977] ICR 106, in Birmingham Midshires Building Society v. Horton [1991] ICR 648, and in St Basil’s Centre v. McCrossan [1992] ICR 140.
12. In Burton the applicant had posted his application by first class recorded post the very day before the period expired and it arrived late. The tribunal held that since the applicant had deliberately delayed posting his complaint it had been “reasonably practicable” for him to have presented the application in time and they therefore held that they had no jurisdiction. The EAT allowed an appeal and remitted the case for rehearing. It held that, provided that the applicant had posted the application within the period so that in the normal course of post and except for unforeseen circumstances it would have been received in time, a tribunal ought to find that it was "not reasonably practicable” for the complaint to have been presented within the 3 month period. Giving judgment, Phillips J said (at p. 108):

“The words ‘reasonably practicable’ have received a wide interpretation in the decision of the Court of Appeal in Dedman v. British Building & Engineering Appliances Ltd [1974] ICR 53. The Court of Appeal by a majority, Stamp LJ dissenting, gave to those words a meaning which they would not ordinarily hold; and, as Lord Denning M.R. pointed out, it is difficult to give a dictionary definition to the meaning which the Court of Appeal has ascribed to the words and it is easier to go by way of example. Amongst the examples which he gives is this, at p. 60:

“Strictly speaking it is nearly always ‘practicable’ for a man to present his claim within four weeks” – the time then in force - “unless he is so ill as not to be able to write and has no one to do it for him. Take a case when he posts his complaint two days before the four weeks are up, and it is delayed in the post, so that it arrives one day too late. Strictly speaking it was ‘practicable’ for him to have presented it in time, because he could have posted it one day earlier. But the English court would hold him saved by the escape clause on the ground that it was ‘not practicable’: see Anglo Continental School of English (Bournemouth) Ltd v. Gardner [1973] ICR 261”

He approves the view expressed as an obiter dictum by Sir Hugh Griffiths in that case who said, at p.267:

‘If an applicant shows that he posted his application in time to arrive in the ordinary course of post within the four week period but for some reason unknown to him it is not delivered to the offices of the tribunal until after the expiry of the four week period, we should expect the tribunal to be satisfied that it was not practicable to present the complaint within this four week period and to extend the time.’

So, Lord Denning MR said, and Scarman LJ agreed, that if you have a case where a claimant does an act within the period prescribed, which in the ordinary event would result in the complaint being made within the specified period, and that is prevented from having its normal and expected result by some unforeseen circumstance, it can be said that the case is one, and indeed it ought to be said that the case is one, where it was not “reasonably practicable” for the complaint to be presented within the period of three months.”

13. After noting that the tribunal had proceeded on the basis that the applicant had deliberately, for his own purposes, delayed making the application, Phillips J said that this was the wrong approach, and continued (at p. 110):

“The important question then surely is this: whether he or his solicitors (which for present purposes means him) could reasonably have expected, on Thursday, January 22^nd, that a letter which was posted that day would have been received in the central office of the industrial tribunals in London on Friday, January 23^rd….[I]f that expectation was a reasonable one, then it follows necessarily, from what we have said earlier, based on the judgment of the Court of Appeal in Dedman’s case [1974] ICR 53, that the case would have been one where it was not reasonably practicable to present it within the period of three months, because it would have been a case where the solicitors had done what was necessary to ensure that the notice was received in time, and it was by reason of unexpected events outside their control that that did not come about. And, for the reasons already given, it is in our judgment irrelevant that, for reasons which seemed good to the employee, although he could have acted very much earlier, he had decided to postpone acting until towards the end of the period.”

14. Phillips J went on to hold that the question was not a matter for judicial notice but a question to be determined as a matter of fact by evidence. He referred to the Practice Direction (Central Office: First and Second Class Mail) [1968] 1 WLR 1489 – which provided for a rebuttable presumption that court documents would be deemed to have been delivered in accordance with what the Post Office had announced would be the usual delivery times for first and second class mail from 16^th September 1968 – but pointed out that that view of the Post Office might no longer be the case. The case was therefore remitted to the tribunal. Phillips J concluded (at p.111):

“It seems to us…that the tribunal require to hear evidence from the solicitors about their normal practice and expectation in these matters and, in particular, evidence from the Post Office. It is not a question of what can be guaranteed of the postal services; it is a question of what a reasonable solicitor would have expected, or might reasonably have expected, at the time, date and place in question.”

15. Horton was another case of posting by first class post on the penultimate day. There the EAT (Wood J presiding) dismissed an appeal from the tribunal’s finding that it had not been reasonably practicable for the application to have been presented in time. The applicant’s solicitor had given evidence that he believed that 99% of first class post arrived the day after it was posted, and the tribunal had believed him. The EAT, while repeating warnings that it had previously given as to the dangers of late posting (in particular in Beanstalk Shelving Ltd v. Horn [1980] ICR 273) refused to accept that the decision was perverse. The EAT indicated that they would probably have reached a different decision, but reminded themselves of what had been said by Shaw LJ in Wall’s Meat v. Khan [1979] ICR 52, at 57:

“The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive.”

16. However, the EAT went on to add this (at p.652):

“..it is open to an industrial tribunal to examine the procedures within a solicitor’s office to see whether the tribunal feel that they are reasonable in the circumstances. In the present case, the originating application which is, in its substantial part, extremely short, was dictated on Friday 9^th March but it was not typed out until Tuesday, 13 and then it was signed and included in that day’s post. There was a gap between the dictation and the typing and posting, and it might have been that that was open to criticism. However, in the future these matters will no doubt, be carefully considered by industrial tribunals and we would venture to think that the mere expectation of delivery of a first-class post may not, in the future, provide an adequate explanation.”

17. Miss Seymour submitted that in this passage the EAT was expressing a significantly different view from that expressed by Phillips J in Burton. That is a matter to which I return.
18. In St Basil’s Centre v. McCrossan [1991] IRLR 455 the critical date had been a Monday and the application posted to London from Birmingham by first class mail the previous Friday. It had arrived late, on the Tuesday. The applicant relied before the tribunal on his personal experience of receiving first class letters from his mother in Northern Ireland the day after posting, and the tribunal had believed him. They also formed the view (contrary to the applicant’s own evidence) that he had deliberately delayed making his application until the last possible moment with the intention of causing maximum uncertainty and inconvenience to the respondents. The EAT declined to interfere with the decision, finding that there had been some evidence before the tribunal on which it could have concluded that the applicant had a reasonable expectation of delivery on the Monday. However the EAT indicated that in considering the question of reasonable expectation in future cases it would be reasonable for tribunals to look to the guidance given by the Queen’s Bench Practice Direction made on 8^th March 1985. That provided for a rebuttable presumption in the case of first class mail of delivery on the second working day after posting. The explanatory note to that Practice Direction had noted (see [1985] 1 WLR 489):

“It is no longer safe to assume that letters posted by first class mail will always be delivered on the following day. To reduce the number of applications by companies to set aside default judgments on the grounds of late service, more realistic assumptions are now prescribed.”

19. This line of authority stands for three propositions: first, that “where a claimant does an act within the period prescribed, which in the ordinary event would result in the complaint being made within the specified period, and that is prevented from having its normal and expected result by some unforeseen circumstance” the escape clause is available: see Burton at p.109; secondly that, if that condition is satisfied, it does not matter why the applicant has waited until the last moment; and, thirdly, that the question whether the condition has been satisfied is a question of fact, to be determined by the tribunal on the evidence before it.
20. Miss Seymour on behalf of the appellant invited us to review these authorities and submitted in particular that the second of the above propositions was wrong. In the present case she pointed out that the tribunal had made no finding as to why the respondent had delayed making his application until the very end of the three month period, and that in evidence before the tribunal he had not sought to proffer any explanation. In my judgment, however, the second proposition follows from the first: the effect of the first proposition is that a complainant is entitled to rely on the ordinary course of post. If that is correct there is no reason to penalise a complainant who has so relied for not having tried to present his complaint at some earlier point in the three month period. I do not think that Wood J’s remarks in Horton as to the possible need to examine the progress of the application in the solicitor’s office were intended to do more than encourage tribunals to be sceptical as to evidence before them of particular expectations as to the ordinary course of post.
21. There seems to me no reason to disturb the long-standing line of authority in support of the first proposition (no controversy exists as to the third). It is true that Lord Denning MR’s observations in Dedman were obiter, and their effect, as Phillips J. noted in Burton, is to give the words “not reasonably practicable” a meaning which they would not ordinarily hold. Parliament has, however, re-enacted the relevant provisions on more than one occasion in the intervening period. Giving the applicant the benefit of the ordinary course of post provides a workable (if generous) test of what is reasonably practicable, and one which is familiar in analogous contexts (cf. section 7 of the Interpretation Act 1978). At the same time, however, the interpretation thus placed on the statutory words should not itself be glossed in such a way as to allow all sight to be lost of the ordinary meaning of those words.
22. The question therefore resolves into this: did the tribunal have evidence before it on which it could conclude that the respondent had posted a letter which in the ordinary course of post could reasonably have been expected to arrive on the Saturday? Once the necessary findings have been made as to when the application was posted (a matter also under challenge in this case) the starting point for the inquiry must be what was the ordinary course of post. Miss Seymour submitted, on the basis of the 1985 Queen’s Bench Practice Direction referred to by Wood J. in McCrossan, that there was a rebuttable presumption that first class mail is delivered on the second working day after posting. I have difficulty in seeing the relevance of that Practice Direction (which is in any event no longer operative) to the question which the tribunal had before it. At best it provides evidence as to the experience of the Queen’s Bench Division of the ordinary course of post in 1985. She was, however, on stronger ground in being able to point to an actual finding of fact by the tribunal as to what would have happened in the ordinary course of post. That is to be found in paragraph 8 of the summary reasons where the tribunal had said “if the post had run its normal course it would have arrived if not within the time period, immediately after the end of the time period”. That certainly seems to be an unambiguous finding that in the ordinary course of post the complaint would have arrived either on the Saturday or on the Monday. There undoubtedly was evidence before the tribunal on which it could reach that conclusion. The respondent’s own evidence (as recorded in the chairman’s notes of evidence) had been that “a first class letter should be delivered on 7 if posted 6^th” and, later, that “If 6 October had been Monday – I would have posted that day and it would have got there Tuesday or Wednesday”.
23. Given that finding, it appears to me that the tribunal could only find a reasonable expectation of delivery on the Saturday (as opposed to the Saturday or the Monday) on the basis of evidence of an expectation that something other than the normal course of post would apply in this case. In giving their extended reasons they appeared to be conscious of this difficulty, since they invoked the fact that the respondent had “worked himself in the post office and knew the procedures”. The suggestion appears to be that the respondent had some special knowledge which entitled him to assume that the risks inherent in the ordinary course of post would not obtain in his case. There was however no evidence before the tribunal supporting that suggestion and, in those circumstances, the tribunal was not entitled to draw any inference from the absence of evidence to the contrary from the appellant. The burden of establishing the facts necessary to give the tribunal jurisdiction notwithstanding the late presentation lay on the respondent.
24. In giving its extended reasons the tribunal would in my judgment have been entitled, had the evidence justified such a course, to re-visit the finding made in the summary reasons as to the normal course of post. They did not do so, no doubt for the very good reason that the evidence they had heard supported that finding. It is impossible to resist the conclusion that the tribunal, in seeking to correct the error of law displayed by the summary reasons, simply substituted a finding of fact, which was both inconsistent with that made in the summary reasons and supported by no evidence other than the bare statements recorded in the chairman’s notes and quoted above. The first of those statements could possibly have supported a finding as to the respondent’s actual expectation, but not, without more, a finding that the expectation was a reasonable one. The second of those statements, and the tribunal’s own finding as to the normal course of post, was inconsistent with a finding that the expectation was a reasonable one. Accordingly I consider that the decision should be set aside and the matter remitted to a differently constituted tribunal for re-determination.
25. Having come to that conclusion, it is unnecessary to consider the other grounds of appeal relied upon.
26. I add that I agree with the guidance given by Brooke LJ in his judgment, which I have seen in draft.

Lord Justice Latham:

27. I agree. I have also read in draft the judgment of Lord Justice Brooke with which I also agree.

Lord Justice Brooke:

28. I also agree.
29. CPR Part 6 has introduced into the conduct of civil litigation in this country a clear set of principles governing the service of documents by post. Documents may be served by first class post (CPR 6.2(1)(b)). If a document is served by post, it is deemed to be served on the second day after it was posted (CPR 6.7(1)). Saturdays, Sundays, Bank Holidays, Christmas Day and Good Friday are excluded from this computation (CPR 2.8). In Godwin v Swindon BC [2001] EWCA 1478, [2002] 1 WLR 997 this court interpreted these provisions as meaning that even if it could be proved that the document had arrived by post on a day earlier than the deemed date of service, it must nevertheless be deemed to have been served on the deemed date of service. May LJ, with whom Pill LJ agreed, said at [46] that uncertainties in the postal system made it sensible that there should be a date of service which was certain and not subject to challenge on grounds of uncertain and potentially contentious fact, particularly where claimants are wanting to serve a claim form at the very end of the period available to do so.
30. So far as tribunals are concerned, if we are moving towards a regime in which there is a unified tribunal service along the lines recommended by Sir Andrew Leggatt in his recent report, it would appear desirable that there should be a unified regime for the service of documents of the same simplicity as that which is now available to the courts. It appears to me to be quite wrong that tribunals should be troubled with the volume of case law with which we have had to contend in this case, and I am not surprised that the Employment Tribunal got the law wrong when it first issued its summary reasons: I agree with what Hart J says about this aspect of the matter in paragraph 9 of his judgment which I have read in draft.
31. Until a simpler regime is introduced, the following guidance may be helpful:

(1) Section 111(2) of the Employment Rights Act 1996 speaks of “presenting” a complaint to a tribunal. It is now well established that a complaint is “presented” when it arrives at the Central Office of Employment Tribunals or an Office of the Tribunals (“the Office”).

(2) If a complainant or his/her agent proves that it was impossible to present a complaint in this way before the end of the time prescribed by section 111(2)(a) – for example because the Office was found to be locked at a weekend and it did not have a letter-box – then it will be possible to argue that it was not reasonably practicable for the complaint to be presented within the prescribed period.

(3) If a complainant chooses to present a complaint by sending it by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post (see, by analogy, section 7 of the Interpretation Act 1978).

(4) If the letter is sent by first class post, it is now legitimate to adapt the approach contained in CPR 6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday, being days when post is not normally delivered).

(5) If the letter does not arrive at the time when it would be expected to arrive in the ordinary course of post, but is unexpectedly delayed, a tribunal may conclude that it was not reasonably practicable for the complaint to be presented within the prescribed period.

(6) If a form is date-stamped on a Monday by a Tribunal Office so as to be outside a three-month period which ends on the Saturday or Sunday, it will be open to a tribunal to find as a fact that it was posted by first-class post not later than the Thursday and arrived on the Saturday, alternatively to extend time as a matter of discretion if satisfied that the letter was posted by first class post not later than the Thursday.

(7) This regime does not allow for any unusual subjective expectation, whether based on inside knowledge of the postal system or on lay experience of what happens in practice, to the effect that a letter posted by first class post may arrive earlier than the second day (excluding Sundays etc: see (4) above) after it is posted. The “normal and expected” result of posting a letter must be objectively, not subjectively, assessed and it is that the letter will arrive at its destination in the ordinary course of post. As the present case shows, a complainant knows that he/she is taking a risk if the complaint is posted by first class post on the day before the guillotine falls, and it would be absurd to hold that it was not reasonably practicable for it to be presented in time if it arrives in the ordinary course of post on the second day after it was posted. Nothing unexpected will have occurred. The post will have taken its usual course.

32. For the avoidance of doubt, the strict litigation rule in Godwin v Swindon BC does not apply in employment tribunal cases. If in such a case a complainant takes a chance and the letter containing the complaint happens to arrive at the Office on the day after it was posted and therefore within the permitted three month period, it will have been presented in time.
33. It would be helpful if the effect of this guidance could be incorporated in the booklet published by the Employment Tribunal Service to prospective applicants.
34. Applying the principles set out in this judgment to the facts of the present case, I agree that the appeal must be allowed, and the matter remitted to a differently constituted employment tribunal for rehearing. It will be a matter for that tribunal to decide whether in all the circumstances of this particular case it would be just to extend time pursuant to its powers under section 111(2)(b).
Order: Appeal allowed, the decision of the Employment Tribunal set and matter remitted to a differently constituted tribunal for redetermination. No order as to costs. (Order does not form part of the approved judgment)