Employment Tribunal Allows Unfair Dismissal Case Due to Administrative Errors

OUTCOME: Allowed

Case Number: 2404641/2024 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Manchester University NHS Foundation Trust

Heard at:

Manchester, by video On: 24 April 2025 Before: Employment Judge Barker

REPRESENTATION:

Claimant: [redacted]

JUDGMENT

The claimant’s claim was presented in time but had not been delivered to the Tribunal using one of the prescribed methods (as per Rule 83(2) of the Employment Tribunals Rules of Procedure 2024) in the [NAME] of 2 March 2020. However, the Tribunal considered it just to waive the requirement to comply with the Practice Direction of 2 March 2020. The claim had been delivered by email, received by the Tribunal in time and had been accepted by the Tribunal and served on the [APPELLANT] in September 2024. The claim may continue. A date was set for the final hearing and case management orders were made. Reasons were provided orally to the parties during the hearing, but these reasons are provided below in response to a request from the [APPELLANT].

REASONS Preliminary matters and issues for the Tribunal to decide 1. The matter had been listed for a hearing as a result of the [APPELLANT]’s application dated 21 October 2024, which was initially that the claimant’s ET1 claim form had been submitted late. Additionally, the [APPELLANT] asserts during this hearing that the ET1 claim form has never been validly presented to the Tribunal. This hearing was to decide whether or not

Case Number: 2404641/2024 2

the claim was validly before the Tribunal and/or whether it had been presented out of time. If the claim was presented to the Tribunal but was late, would the Tribunal allow the claims to continue, despite being presented late? As the claim is for unfair dismissal, the test for an extension of time being given by the Tribunal is that set out in s111(2) Employment Rights Act 1996: “(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) 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 of three months.”

2. The Tribunal was provided with a bundle of documents which ran to 130 pages. During the hearing, the Tribunal also considered it in the interests of justice to review the online case file for this claim, and shared the information contained in it with the parties for their comments, as discussed below.

3. The claimant was supported by her daughter during the hearing, who helped her with navigating the pages in the hearing bundle and who was able to provide her assistance when the claimant became distressed.

Findings of Fact 4. The claimant worked for the [APPELLANT] as a hospital healthcare assistant. She had an accident in work and was off sick long-term. She was dismissed by reason of that absence, having not recovered at the time of her final absence review. Some time afterwards, she did make a recovery. Her complaint is, in broad terms, that her dismissal was unfair as the [APPELLANT] did not wait long enough for her to recover, particularly considering her long service with the [APPELLANT] and considering the fact that her accident took place in work.

5. However, in order for her claim to proceed to a final hearing, it must have been validly presented to the Tribunal in time. The date of termination of her employment was 2 October 2023. ACAS Early Conciliation took place from 29 October 2023 to 31 October 2023. Her claim was therefore due to be presented to the Tribunal on or before 4 January 2024.

6. The [APPELLANT] did not receive notification of the claim from the Tribunal until September 2024. The claim form provided to the [APPELLANT] by the Tribunal was undated. When the [APPELLANT] asked the Tribunal about this, they were given the following information by a member of Tribunal administrative staff:

“The ET1 was received and accepted in Manchester on 19 March 2024, but due to an administrative error was not processed until 27 August 2024.”

7. The [APPELLANT], quite reasonably, interpreted this to mean that the ET1 claim form had not been sent to the Tribunal at all until 19 March 2024. The claimant’s evidence has consistently been that she sent her claim form to the Tribunal by email, with the help of her son, in November 2023. Her evidence was that he looked up online what the email address of

Case Number: 2404641/2024 3

the Tribunal was, and he found several email addresses. She sent her ET1 to all of the email addresses that they found.

8. Her email of 30 November 2023, sent at 23.16, is in the bundle of documents. She wrote:

“Hello all, my name is [NAME] and I am currently going through a dispute and have had difficulty finding the right email to submit my form to. I am a resident of England if that helps. I can’t find where to submit my form, please! can you assist with this. Please find ET1 for attached, please contact me with any enquiries…” The claimant then supplied her mobile phone number.

9. The email addresses she sent this message to were the [NAME] email address, the email address for the Tribunals Service for Northern Ireland, and an email address [EMAIL].

10. She says that they received an “auto reply” email from the London South Tribunal which told them in the first paragraph that their message had been “safely received” and that they should not chase the Tribunal for an update as this would slow down the progress of their case. She took this as confirmation that her claim form had been submitted and waited for the claim to be progressed by the Tribunal. She said she was very happy and relieved to have found where to send the form.

11. The “auto reply” from the Tribunal was before me in evidence. It is dated 30 November 2023. It is from the “[NAME]” email address. It contains four paragraphs, which are presented as an uninterrupted block of text. The first paragraph is long, and reads as follows:

“IMPORTANT INFORMATION COMMUNICATION WITH THE EMPLOYMENT TRIBUNAL. Thank you for your email which has been safely received by the Employment Tribunal. Please do not call us for further confirmation of receipt. This will allow us to deal with your correspondence more efficiently. Always send correspondence by email unless it is not possible for you to do so. We will deal with all queries as soon as possible. Repeat calls or emails on the same matter may interrupt the administrative process. When sending any correspondence to the tribunal (except when making a request for a witness to give evidence at a hearing), you must also send a copy to all other parties….

12. The second paragraph reads

“Please note that new claims (ET1 form) cannot be accepted by email. The quickest and easiest way to send us a claim form is by using our online submission service which you can access here: https://www.gov.uk/employment-tribunals. Any response forms (ET3) will need to be checked by a judge before they are accepted. This reply is only confirmation of receipt….”

13. The claimant’s evidence was that she only read the first paragraph. She said she had been very upset and worried about where to send the form. She seemingly thought that she only had one month from the end of ACAS Early Conciliation to send in her ET1. As conciliation finished on 31 October 2023, this would have meant that she believed she was running out of

Case Number: 2404641/2024 4

time at 23.16 on 30 November 2023. In fact, she had until 4 January 2024. However, I accept that she believed she was under time pressure to submit her form that day.

14. I also accept that she read the first paragraph of the auto-reply email and considered the ET1 had been safely received. I accept her evidence that, had she read further and got to the section about where to send the ET1, she would have done that. I note that the wording of the auto-reply email is long and repetitive, and the information about the ET1 comes after the section about the email having been “safely received by the Employment Tribunal” and is therefore somewhat contradictory.

15. The claimant was cross-examined about the support she received from her [NAME] and their solicitors in relation to her claim, and a potential claim for personal injury. I accept that she has received support, but not in relation to the drafting of her claim form, or its submission. I accept that she did not know how or where to send the ET1 form.

16. I have also taken account of the claimant’s evidence that since her accident at work, she has experienced sporadic memory loss and cognitive difficulties including affecting her concentration. The claimant reported falling on her head and her back. The investigations into her health following her accident have coincidentally revealed that the claimant has a benign meningioma (brain tumour) for which she is being monitored. The medical expert’s report in the bundle is inconclusive. The claimant disputes its accuracy. Whether the claimant’s cognitive issues were caused by her accident itself or by her anxiety about having had an accident and being out of work, I accept that she was panicked when she was submitting her claim form.

17. Following the email being sent to the London South Employment Tribunal on 30 November 2023, the Tribunal case file that I was able to access, shows that the ET1 was picked up from the inbox and passed to a case worker to assess. The case worker did not identify that the ET1 had not been sent to the Tribunal via one of the acceptable methods, that is online submission, post or hand delivery.

18. The ET1 was accepted in London South but transferred to the Manchester region, on 19 March 2024. Therefore, the email from the [NAME] which noted “The ET1 was received and accepted in Manchester on 19 March 2024” did not mean, as the [APPELLANT] reasonably interpreted it, that the ET1 was only sent in to the Tribunal on 19 March 2024, but that it was transferred to the Manchester region on 19 March 2024, having been submitted elsewhere some time earlier.

19. I shared this information with the parties during the hearing. I asked the [APPELLANT]’s counsel if she would like a brief adjournment to consider it. She identified that her submissions dealt with the argument in the alternative (that is, that the ET1 was not submitted by an acceptable method of submission) and so was able to deal with it without any further consideration.

20. Had the administration in London South rejected the email which attached the ET1 when it was first submitted, instead of accepting it, I find that the claimant would have re- submitted it. There is a Tribunal standard letter available specifically for that scenario for the administrative clerks to use, which provides further guidance as to the acceptable methods of submission. The claimant considered herself able to rely on the lack of a response (as described in the wording in the email auto-reply) to mean that her email had been safely received and was being processed.

Case Number: 2404641/2024 5

21. It was only during this hearing today that it was established that the evidence on the Tribunal file demonstrated that the claimant had sent her ET1 to the Tribunal in time and that it had been processed and accepted, despite having not been submitted via one of the authorised methods for doing so.

22. Therefore, the claimant has had no indication from the Tribunal at any stage in the proceedings that the claim form was rejected; indeed, she has had formal notice that it has been accepted (by a letter dated 27 August 2024). The Law 23. The Employment Tribunal Rules of Procedure 2024 state, at Rule 83(2) that in relation to the submission of a claim to the Tribunal,

“a claim form… may only be sent in accordance with any practice direction”.

24. The relevant practice direction is the [NAME] of Claims of 2 March 2020, which states (at paragraph 5) that the only methods of submitting a claim form to the Tribunal are:

“1. Online by using the online form submission service provided by Her Majesty’s Courts and Tribunals Service, accessible at www.employmenttribunals.service.gov.uk; 2. By post to Employment Tribunal Central Office (England & Wales), PO Box 10218, Leicester, [POSTCODE]. 3. By hand to an Employment Tribunal Office listed in the schedule to this Practice Direction.”

25. The Employment Tribunal Rules of Procedure 2024 state, at Rule 6 Irregularities and non-compliance 6.—(1) An irregularity resulting from a failure to comply with any provision of these Rules, a practice direction, or any order of the Tribunal does not of itself render void the proceedings or any step taken in the proceedings. (2) In the case of non-compliance with these Rules, any practice direction or any order of the Tribunal, the Tribunal may take such action as it considers just, which may include any of the following— (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 38 (striking out) (c) barring or restricting a party’s participation in the proceedings; (d) awarding costs in accordance with Part 13 (costs orders, preparation time orders and wasted costs orders). (3) This rule does not apply to rules 10, 17(1), 24(1) or 26(1), or an order made under rule 28(1)(b), 29(1)(b), 39 or 40.

26. In [NAME] [COMPANY] v Clark [2023] EWCA Civ 386, the Court of Appeal held that where a claim is mistakenly accepted by the Tribunal when it should have been

Case Number: 2404641/2024 6

rejected under Rule 12 of the ET Rules 2024 (which deals with substantive defects), and makes it past this preliminary “filter”, it is not open to a judge to subsequently reject it for that substantive defect. [ADDRESS] also noted the wide power to waive an irregularity under Rule 6 of the ET Rules.

27. Where a [APPELLANT] subsequently applied to strike out the claim under Rule 28 (ET Rules 2024) for a failure to comply with a procedural requirement, a Tribunal may waive the duty to comply with that particular requirement if it is “just” to do so, in accordance with Rule 6 ([COMPANY] [NAME] v Reynolds 2025 EAT 6). Application of the law to the facts found 28. The facts above show that the claim was presented, albeit not via a correct method, in time, on 30 November 2023. It was accepted by the Tribunal when it should have been rejected.

29. There is no direct authority on the course of action the Tribunal should or may take in this situation. By analogy, the cases of [NAME] and [NAME] say (in the context of claims where there has been some failing in relation to ACAS Early Conciliation) that once a claim has been erroneously accepted by the Tribunal, the claim cannot subsequently be rejected on an application by the [APPELLANT]. The [APPELLANT]’s methods of challenge to a claim would arise through a strike-out application (rule 38 ET Rules 2024) or on initial consideration by the Tribunal (rule 28 ET Rules 2024).

30. I have also considered the Tribunal’s ability, in Rule 6 ET Rules 2024, to waive an irregularity or aspect of non-compliance. Here the irregularity is the claimant’s non-compliance with the [NAME] of 2 March 2020, in that she sent her ET1 to the Tribunal by email.

31. Rule 6(2) states that the Tribunal may take “such action as it considers just” to waive or vary the requirement. The ability of the Tribunal to do so is limited so that certain rules are excluded from this exercise of discretion, as set out in Rule 6(3). Rule 83, relating to delivery to the Tribunal, is not excluded from this exercise of discretion.

32. The question for me is, therefore, whether I consider it just to take the action of waiving the requirement that the ET1 form be delivered to the Tribunal by one of the three methods in the [NAME], such that the claimant’s claim may proceed even though it was delivered by email.

33. I consider that it is just to waive that requirement, and the claim may continue.

34. My reasons for considering it just to waive that requirement, are that the claimant and her son took steps to research where to send her claim form to. The claimant is a litigant in [APPELLANT] and although she has had some help from her union, she was having to submit her ET1 form on her own. I have taken into account the fact that as a result of what has happened to her, she was highly anxious at the time. She considered herself to be under time pressure to send her form off. Her son found some email addresses for the Tribunal through an online search. The claimant considered the “auto reply” from [NAME] gave her reassurance that her ET1 had been received and would be processed. The [NAME] auto reply email is prolix, that is, it is overly long and wordy, and I consider that in the circumstances the claimant read the first paragraph and considered that she had sent in the ET1 in an acceptable way. Had the email been less prolix and contradictory, I accept that the claimant would have

Case Number: 2404641/2024 7

found the information about how to send in a claim and would have re-sent her ET1 through the online submission service. In the circumstances it was reasonable for her to take the auto reply email as confirmation that her claim had been submitted.

35. Furthermore, I find that the Tribunal’s error in accepting the claim means that, by analogy with the case of [NAME], the claim cannot now be rejected.

36. In conclusion, for the reasons set out above, it would be unjust to now reject the claimant’s claim. It can proceed. Case management orders were given and are recorded in a separate document. Approved by Employment Judge Barker 7 May 2025

Judgment sent to the parties on:

9 June 2025

For the Tribunal:

……………………………………

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Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint [NAME] on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

Case No: 2404641/2024

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Manchester University NHS Foundation Trust

HELD AT:

Liverpool (by CVP, remote) ON: 5, 6, 7 & 8 May 2026 BEFORE: Employment Judge Johnson

REPRESENTATION:

Claimant: [redacted] Mr [COUNSEL] (counsel) Ms [COUNSEL] [NAME] (solicitor)

JUDGMENT

The judgment of the Tribunal is that:

(1) The claimant’s claim of unfair dismissal was not well founded. This means that the claimant was fairly dismissed by the [APPELLANT].

Employment Judge Johnson

Date_____8 May 2026___________

JUDGMENT SENT TO THE PARTIES ON

2 June 2026

FOR THE TRIBUNAL OFFICE

Case No: 2404641/2024

2 Notes

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and [APPELLANT](s) in a case.

Recording and Transcription

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/