Carabott v London Borough of Newham: email receipt and time limits in unfair dismissal claims

The Employment Appeal Tribunal has upheld a tribunal's finding that circumstantial documentary evidence was sufficient to establish when an employee received notice of dismissal, even without direct oral testimony from the employer's witness.

Dennis Carabott worked as an HGV driver for the London Borough of Newham from October 2006 until his summary dismissal in July 2020 following disciplinary proceedings. He contacted ACAS on 12 October 2020 and submitted his employment tribunal claim on 10 December 2020, complaining principally of unfair dismissal.

The respondent initially conceded that the claim was presented in time, having calculated that a dismissal letter posted on Friday 10 July 2020 would not have been received before Monday 13 July 2020. Consequently, preliminary hearings scheduled to address time bar issues were converted to case management discussions, and time limits were not included in the list of issues for determination.

The email discovery

On the afternoon of 25 September 2023, during the first day of the substantive hearing, the respondent's counsel was shown an email dated 10 July 2020 by the respondent's principal, Mr Humphries. This email demonstrated that the dismissal letter had been sent by email at 12:18 on 10 July 2020 to the appellant's personal email address, in addition to being posted.

The respondent applied to re-open the time bar issue on 26 September, arguing that the previous concession had been based on incomplete information. The tribunal converted the full hearing into a preliminary hearing on jurisdiction, allowing the appellant time to provide a supplementary witness statement addressing when he had received the dismissal letter.

Tribunal findings

The employment tribunal accepted three pieces of circumstantial documentary evidence as proof that the email was sent and received on 10 July 2020. First, the printed email itself bore a timestamp of 12:18 on that date. Second, an email from the appellant's union representative dated 31 July 2020 referred to the appellant having "received" the outcome on 10 July 2020. Third, the appellant's own ET1 form stated that his employment ended on 10 July 2020.

The tribunal found that the appellant, who was assisted by his wife in reading emails due to dyslexia, would have seen the email in his inbox on 10 July 2020 as he was anxiously awaiting the disciplinary outcome. It concluded that he and his wife had read the dismissal letter together by Saturday 11 July 2020 at the latest, noting that the email's subject line—"Disciplinary Hearing Outcome"—clearly indicated its contents.

Since early conciliation was not commenced until 12 October 2020, more than three months after the effective date of termination, the claim was presented out of time.

The appeal

The appellant's grounds of appeal contended that there was no evidence supporting the tribunal's conclusions, and alternatively, that the findings were perverse. The appellant's representative argued that the email was "highly suspect", having only emerged three years after the claim was presented, and that no explanation had been given for why it was not copied to the union representative as other correspondence had been.

EAT decision

Lord Fairley, President of the Employment Appeal Tribunal, rejected both grounds of appeal. The circumstantial documentary evidence provided a proper basis for the tribunal's findings. The combination of the email itself, the union representative's reference to a 10 July receipt date, and the appellant's own statement in his ET1 form entitled the tribunal to conclude that the email was sent and received on that date.

The tribunal had also been entitled to draw inferences from the circumstantial evidence about when the letter was read. The appellant was expecting the outcome, was anxious about it, and the email's subject line made its contents obvious. Given these circumstances, and the appellant's inability to recall when he read the email rather than denying having done so, the tribunal's conclusion that it was read by 11 July 2020 was a permissible finding open to it on the evidence.

The EAT emphasised that there is no rule requiring oral testimony to prove a document's provenance in employment tribunals. The tribunal had properly considered the factual evidence before it and reached conclusions that, whilst the appellant disagreed with them, were neither irrational nor perverse. The appeal was accordingly refused.