Presenting the ET1 - Fax Error at Tribunal

[Thanks to Jonathan Moffatt of Outer Temple Chambers for preparing this case summary]

Is an ET1 presented to a tribunal office in writing within the meaning of Rule 1 of the eEmployment tribunal Rules of Procedure where it is faxed to and received by the tribunal office's fax machine but a technical failure prevents that machine from producing a printout or record of receipt?

Yes, according to the EAT (Underhill P) in Yellow Pages Sales Ltd v Davie.

The ET1 was faxed to the correct fax number. The sender received a transmission report confirming that all pages had been received.

The employer argued that the tribunal office did not receive the ET1 in writing, as required by Rule 1. The EAT disagreed. The writing was conveyed to the tribunal office by a particular technological means and, absent the malfunction, would have been translated into a written document. The complaint had been presented in a fixed form that could be communicated in that form to the other party but was, in effect, lost at the tribunal's end.

Interestingly, the EAT expressed caution about accepting the employee's submission that the language of Rule 61, which concerns the sending of documents by different methods, including electronic communication, also supported the finding that the ET1 had been properly presented.