D Carabott v London Borough of Newham

The submission that there was no evidence to support the Tribunal’s conclusions was incorrect. The Tribunal had before it three pieces of circumstantial documentary evidence which entitled it to conclude that the e mail dated 10 July 2020 was indeed sent on the date which it bore. There was also ample circumstantial evidence on which the Tribunal was entitled to conclude that the dismissal letter was seen and read by the appellant by 11 July 2020 at the latest.

The conclusions reached by the Tribunal were open to it on the evidence and were not perverse.

This is an appeal from a Judgment dated 2 October 2023 of an Employment Tribunal sitting at London East. The Judgment followed a 4-day hearing between 25 and 28 September 2023.

The appeal hearing was conducted by video with public access for observers. The appellant was represented by Ms Driver, who is a US Attorney. The respondent was represented by Ms Chan. Both Ms Driver and Ms Chan appeared below.

The appellant, Mr Carabott, was employed by the respondent as an HGV driver. His employment began in October 2006 and ended with his summary dismissal in July 2020 for the stated reason of conduct.

The appellant made contact with ACAS on 12 October 2020 (ET§ 6) and presented a claim form (ET1) to the Employment Tribunal on 10 December 2020. He complained principally of unfair dismissal. He also claimed various sums said to be due to him on the termination of his employment including notice pay, holiday pay, arrears of pay and “other payments”.

It is common ground that intimation to the decision to dismiss was given in a letter dated 10 July 2020. The focus of this appeal is upon the Tribunal’s conclusions about the date on which the dismissal letter was first seen by the appellant and its determination of an issue of time-bar which flowed from that.

Within section 5.1 of the form ET1 the appellant recorded that the date on which his employment ended was 10 July 2020. Within the grounds of resistance attached to its response form (ET3) the respondent made the following averments in relation to time-bar:

“6.

The effective date of termination was 10 July 2020. However, this decision was communicated to the claimant by letter. Therefore, deemed date of service was 12 July 2020.

7.

On the basis of the deemed date of service, the claimant should have notified ACAS of his intention to conciliation (sic) on or before 11 October 2020 in order to benefit from the provisions extending time set out in sections 207A and 207B [of the Employment Rights Act, 1996].

8.

The claimant notified ACAS of his intention to conciliate on 12 October 2020. Therefore, he presented his claims out of time.

In subsequent correspondence, however, the respondent accepted that as the date of posting of the letter of dismissal was a Friday (10 July 2020), the appellant would not have received the letter before Monday 13 July 2020. The effect of that was that the claim form had been timeously presented on 10 December 2020.

On 10 June 2021, a preliminary hearing that had been listed on time bar was converted by EJ Crosfill to a case management discussion after the respondent intimated that its defence on time bar was no longer insisted upon. In a later case management note in November 2021, that process was incorrectly characterised by a different Judge (EJ Housego) as a determination by the Tribunal of the preliminary issue on time bar. The correct characterisation was that the time-bar point was withdrawn by the respondent.

In a case-management note dated 17 June 2021, EJ Crosfill defined the issues for determination by the Tribunal. Time-bar was not one of them. That was also the position in a draft list of issues attached to a case management note dated 24 November 2021 (EJ Housego); and in what was described as an “agreed” list of issues attached to a further case management noted dated 4 February 2022 (EJ Brannan).

The case was listed for a merits hearing in September 2023 before a panel of three chaired by EJ Massarella. Part of the first day of that hearing (25 September 2023) was taken up with a discussion over disclosure, an application by the appellant’s representative to lodge additional documents, and with issues to do with the content of the hearing bundle. The Tribunal allowed parties time to discuss these matters further. It used the remainder of the day as reading time.

On the afternoon of 25 September 2023, Ms Chan had a conference with the respondent’s principal, Mr Humphries. During that conference, Mr Humphries showed Ms Chan an email dated 10 July 2020 which tended to show that the dismissal letter had, in fact, been sent to the appellant by email and by post on the same day, 10 July 2020. Ms Chan sent a copy of the email to Ms Driver on the afternoon of 25 September and to the Tribunal later that day.

On the morning of 26 September, Ms Chan applied to re-open the issue of time bar as a point going to the jurisdiction of the Tribunal. She submitted that she was entitled to do so as there had been no previous judicial determination of the issue of time-bar and, insofar as the respondent had conceded that the claims were presented in time, that had been on the basis of incomplete / inaccurate information.

The Tribunal noted that time limits are jurisdictional (ET§ 8). It decided, therefore, to convert the full hearing to a preliminary hearing on the issue of time bar (ET§ 10). It adjourned the hearing to the following day (27 September 2023) to allow the appellant’s representative time to take instructions and to lodge a supplementary witness statement from the appellant about the date of his receipt of the dismissal letter. No issue is taken in this appeal with either of those case management decisions.

On 27 September 2023, the Tribunal heard evidence in chief and cross from the appellant. The respondent did not lead any sworn witness evidence. The Tribunal had before it a witness statement from Mr Humphries dated 14 July 2023. That statement did not mention an email being sent to the appellant on 10 July 2020. No supplementary statement from Mr Humphries was ever produced following the adjournment on 26 September 2023.

Following the conclusion of the appellant’s evidence, the Tribunal heard parties’ respective submissions on the issue of time-bar.

Ms Chan submitted to the Tribunal that, if the dismissal took effect on or before 11 July 2020, commencement of early conciliation on 12 October 2020 did not have the effect of extending the time for presentation of the claim in terms of section 207B of the ERA.

Ms Driver submitted to the Tribunal that there were various issues about the email that should cause it to doubt that the appellant was aware of the dismissal letter at any time prior to 13 July 2020. If that was correct, then the appellant had initiated early conciliation in time on 12 October 2020, thus engaging the section 207B extension.

Where a summary dismissal is intimated in a letter, the contract of employment does not terminate until the employee has actually read the letter or has at least had a reasonable opportunity to discover its contents (Gisda Cyf v. Barratt [2010] ICR 1475, approving Brown v. Southall and Knight [1980] ICR 617 and McMaster v. Manchester Airport plc [1988] IRLR 112). The time limit for initiating early conciliation begins on that date.

If early conciliation is commenced within the primary time period, an extension of the time within which the claim may be presented is given by section 207B of the Employment Rights Act, 1996. If conciliation is not commenced within that primary time period, section 207B is not engaged and no extension period arises.

The Tribunal made findings of fact between ET§ 14 and ET§ 31. It noted that the appellant had been assisted in the disciplinary process by a union official, Mr Owolade. On 29 June 2020, Mr Owolade sent written submissions to Mr Humphries (ET§ 15). On the same date, Mr Owolade telephoned the appellant to advise him that he would receive a decision from Mr Humphries within 10 working days (ET§ 16). The appellant therefore understood that he would receive a decision in the disciplinary process by no later than 13 July 2020 (ET§ 17).

A key finding in this appeal is seen at ET§ 18, where the Tribunal recorded:

“Mr. Humphries sent the email attaching the outcome letter at 12:18 on 10 July 2020. He sent it to the Claimant’s personal email address, and it was received. Mr. Humphries did not copy Mr Owolade in. In his covering email he wrote that the attachments had also been posted to the Claimant. The subject header of the email is: ‘Disciplinary Hearing Outcome’. There are four attachments, one of which is titled ‘Outcome Letter’.”

At ET§ 19, the Tribunal rejected the appellant’s evidence that the email address to which the dismissal email bore to have been sent had only recently been set up by him. In reaching that conclusion, it noted that the appellant had communicated with the respondent from that same email address on 22 August 2019 and had also communicated with Mr Owolade from it on numerous occasions during the summer of 2020. The Tribunal was, therefore, satisfied that sending email to that address was an established means of communicating with the appellant.

The Tribunal accepted the appellant’s evidence that he has dyslexia, and that it was his usual practice to ask his wife to help him to read emails. He explained that this would usually be done at weekends because his wife worked long hours between Monday and Fridays, and he was reluctant to ask for her help on days when she was working (ET§ 20 and 21).

The Tribunal noted that the email bore a date and time on which it was sent of 10 July at 12.18pm. At ET§ 23, it also noted that, in an email sent by Mr Owolade on the appellant’s behalf on 31 July 2020, Mr Owolade stated:

On the issue of when the appellant saw and read the letter, the Tribunal recorded his evidence as follows (ET§ 22):

“The claimant could not recall when he and his wife looked at the email containing the outcome letter, although he did not deny doing so either in his witness statement or in oral evidence. Although he said in his witness statement that he did not pay much attention to his emails, he did not assert that neither he nor his wife had noticed this particular email when it arrived.”

At ET§ 25 to 30, the Tribunal recorded its conclusions as to the date on which the appellant saw the dismissal letter, or had a reasonable opportunity to discover its contents:

“25.

On the balance of probabilities, we find that the Claimant saw the email from Mr Humphries in his inbox on the day it arrived. He was expecting an outcome letter around this time; he was understandably very anxious about the outcome of the disciplinary process; we think it likely that he was looking out for any communication from his employer, or for any update from Mr Owolade, whether by post or email.

26.

We find that he told his wife that it had arrived when she got home from work. We are prepared to accept his evidence that he did not ask her to go through the letter with him there and then because she had had a very long day at work. We note that the letter is several pages long and it would take the Claimant some time to go through it carefully.

27.

We find that they read it together, at the very latest, on Saturday 11 July 2020. The email was so clearly marked that anyone seeing it would have no doubt as to its contents. Once the claimant and his wife had seen what it was, it would make no sense for them to ignore it: this was a communication of the utmost importance to both of them. Although it would have been better if the email had been copied to Mr Owolade, the fact that it was not copied to him does not show that the Claimant did not read it.

28.

There was no evidence that he and his wife were away from home that weekend. We remind ourselves that Covid restrictions were still in place at that point and that there were limited options for leisure and travel. To find that the Claimant did not read the email at the weekend would require us to accept that neither the Claimant nor his wife looked at their email inbox over the weekend, when the Claimant's own evidence was that this was an account which his wife used a great deal and which he himself used and checked.

29.

Accordingly, we find that the claimant knew that he had been summarily dismissed on 11 July 2020.

30.

If we are wrong about that, we are satisfied that he had a reasonable opportunity to read the email and the attached dismissal letter on that date.”

The Tribunal rejected the appellant’s evidence that he was unable to read the letter by reason of ill-health (ET§ 31)

Two grounds of appeal (grounds 1 and 5) have been permitted to proceed to a full hearing.

In ground 1, it is submitted that, since the appellant did not concede that he had received the email by 11 or 12 July 2020, there was no evidence upon which the Tribunal could properly have concluded (a) that the email had ever been sent by Mr Humphries; or, in any event, (b) that the appellant had opened and read the dismissal letter by 11 July 2020 (or, alternatively, that he had a reasonable opportunity to do so by that date).

In ground 5, it is contended that the Tribunal’s conclusions that the dismissal letter was emailed, received and read by 11 July 2020 were, in each case, perverse.

On 1 October 2025, the appellant applied for an Order for questions to be sent to the Employment Judge under the Burns / Barke procedure. I granted such an Order on 8 October 2025 in slightly amended terms to those sought. The Judge’s responses were received on 10 October 2025 and copied to parties on that date. The responses clarify the following matters:

Ms Driver submitted that the email of 10 July 2020 was highly suspect. No explanation had been given as to why it only came to light some three years after the claim was presented. Nothing had been done by the Tribunal to check its veracity. It was curious that – in contrast to other emails sent to the appellant by the respondent – this one had not been copied to Mr Owolade in spite of an agreement to do so. The appellant had given oral evidence that he could not find the 10 July 2020 email in his past emails. If he had received it, he would have forwarded it to Mr Owolade, but there was no evidence that he had done so. The appellant had, in effect, been required by the Tribunal to prove that he had not received the email. There was no proof that the email had been sent. The Tribunal had never asked Mr Humphries for a witness statement or sought to question him on this issue.

Even if it was accepted that the email had been sent, there was no evidence that it was read on 10, 11 or 12 July 2020. The appellant was not expecting to receive the outcome letter by email. There was no reason for him to check his emails. There was no evidence produced by the respondent of a “read receipt”. In these circumstances, there was no proof that the dismissal letter had been seen and read before 13 July 2020 when it was received in the post.

Having regard to all of these factors it was, in any event, perverse for the Tribunal to conclude that the dismissal letter had been sent, seen and read by 11 July 2020.

Whilst Ms Driver explained that she had challenged the veracity of the email in her closing submissions, she also candidly acknowledged that she did not realise that she could have asked for Mr Humphries to be called to give evidence on oath. She assumed that the Tribunal would have done so if it had any questions about the authenticity of the email as a result of her closing submissions.

Ms Chan submitted that the appellant had been given the chance to produce a supplementary statement about the email and had done so. It was clear from that statement that he did not dispute receipt of the email. The focus of the hearing was not upon whether the email was genuine. No challenge was made before the Tribunal to the veracity of the email. If she had realised that the veracity of the email was being challenged, she would have called Mr Humphries. The disputed issue was whether or not the appellant had seen and read it and its attachments prior to 13 July 2020.

On the question of whether the email was sent, there were three pieces of evidence before the Tribunal which entitled it to reach the conclusion it did at ET§ 18. The first was the print of the email itself. The second was the email of 31 July 2020 from Mr Owolade which referred to a receipt date of 10 July 2020. The third was the ET1, which was written in the first-person by the appellant and which expressly gave a date of termination of 10 July 2020.

Once it was accepted that the email was received, there was ample circumstantial evidence from which the Tribunal was entitled to infer that it would have been read by 11 July 2020 at the latest. That evidence was recorded by the Tribunal at ET§ 15 to 24 and was reflected in the inferences drawn at ET§ 25 to 30.

The standard for a perversity appeal was a high one which this appeal came nowhere close to meeting.

Based upon the Judge’s account of the hearing and the submissions made to me in this appeal, it does not appear that any challenge to the genuineness of the email arose either before or during the evidence. Neither party sought to call Mr Humphries, and it appears that Ms Driver advanced such challenges as were ultimately made to the genuineness of the email only in her closing submissions.

The scope of ground 1 is very narrow. The premise of the first part of it is that there was “no evidence” to support the conclusion that the email was sent and received. That premise is, however, incorrect. The Tribunal had before it three pieces of circumstantial documentary evidence which entitled it to conclude that the e mail dated 10 July 2020 was indeed sent on the date which it bore.

The first of these was the copy of the email itself. The second – and perhaps the most important – was the email of 31 July 2020 from Mr Owolade which referred to a date of receipt of 10 July 2020. Mr Owolade was not called by the appellant to explain why he had understood the date of receipt of the letter by the appellant to have been 10 July 2020. The obvious inference, however, is that the source of that date was either the appellant or his wife. The Tribunal regarded the 31 July 2020 email from Mr Owolade as “significant” (see ET§ 24). It was entitled to that view. The third piece of evidence was the ET1 in which the appellant himself identified the date on which his employment ended as 10 July 2020. Viewed in isolation, that could simply have been based upon the appellant’s understanding of the date on which he stopped being paid. In combination with the other pieces of circumstantial evidence, however, it tended to support the view to which the Tribunal came at ET§ 18 that the email with attached dismissal letter was indeed sent and received on the date it bore.

There is no rule that oral testimony is necessary in an Employment Tribunal to prove the provenance of a document (see, for example, Hovis Limited v. Louton EAT 1023/20). The three documents referred to above amounted to a basis on which the Tribunal was entitled to conclude that the email with the attached dismissal letter was indeed sent and received on 10 July 2020. These were all matters of fact for the Tribunal to consider, and it is clear that it did so. I therefore reject the submission that there was no evidence for the conclusion the Tribunal reached.

Once the Tribunal was satisfied that the email was sent and received on the date it bore, the next issue it had to consider was when the dismissal letter was read or, alternatively, the date by which the appellant had a reasonable opportunity to read it.

There was no direct evidence as to when the letter was read. As the Tribunal recorded at ET§ 22, the appellant could not recall when he and his wife looked at the email. Based upon the findings of fact made by the Tribunal between ET§ 15 and 23, however, it was entitled to draw the inferences it did at ET§ 25 to 30. In particular, there was ample circumstantial evidence in the findings of fact to which I have already made reference to support the conclusion that the appellant was aware of the contents of the letter by 11 July 2020 or, at least, had a reasonable opportunity to read the email by that date. Again, therefore, I reject the suggestion that there was “no evidence” to support the conclusion reached by the Tribunal at ET§ 27 that the dismissal letter was seen and read by 11 July 2020 at the latest.

For these reasons, ground of appeal 1 does not succeed.

Ground 5 is based upon perversity. A perversity appeal will succeed only where the appellate court is able to say, “my goodness, that was certainly wrong” (Neale v. Hereford and Worcester County Council [1986] ICR 471) or where the decision is one which is irrational, offends reason, makes absolutely no sense or flies in the face of properly informed logic (Stewart v. Cleveland Guest (Engineering) Limited[1996] ICR 535).

In Ellett v. Welsh Products LimitedEAT 652/82, Browne-Wilkinson J (as he then was) noted that it would not be an error of law for a Tribunal to make a finding of fact or reach a conclusion “where there is some evidence pointing in one direction and some evidence pointing in the other direction.” In Piggott Brothers and Co v. Jackson [1992] ICR 85 Lord Donaldson MR made a similar point:

“It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option.”

The various points made for the appellant in this appeal were all forensically valid and could, no doubt, have been put to Mr Humphries had he been called as a witness. Ultimately, however, the conclusions reached by the Tribunal were open to it on the evidence that it accepted. Those conclusions were not irrational, outrageous or illogical. They were not perverse.

The appeal is, therefore, refused.