All in the timing - Case Round-Up: October 2018

In this month's case round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at recent cases on time limits in presenting and amending unfair dismissal claims, as well as whether a Respondent who failed to lodge an ET3 in time could participate in a remedy hearing.

Mark Shulman, Consultant Solicitor at Keystone Law

Time limit**

Rule 4(2) of the ET Rules 2013 provides that:

"(2) If the time specified by these Rules, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. "Working day" means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday …"

Where the statutory 3-month time limit expires on a Sunday, is a claim to be treated under Rule 4(2) as being received on the next working day? No, said the EAT in [Miah v Axis Security Services Ltd ]()UKEAT/0291/17/LA.

Mr Miah sought to pursue a complaint of unfair dismissal and the relevant time limit (under section 111 ERA 1996) expired on Sunday 29 January 2017. Mr Miah's solicitors posted the claim to the ET. It was their contention that this had been done by recorded delivery on Thursday 26 January. At the ET there was no evidence produced to corroborate the posting date and there was an apparent discrepancy in the evidence as to the date on which the claim had actually  been posted. The claim was date stamped by the ET as received on Monday 30 January 2017 – one day out of time. The ET office had been closed over the weekend and the claim had not reached the ET during its opening hours on Friday 27 January 2017.

In considering whether the claim was in time, the ET was not satisfied on the evidence that the claim had been posted (whether by recorded delivery or otherwise) on 26 January 2017 and therefore it had been reasonably practicable for Mr Miah to present the claim in time. Accordingly, the claim was out of time and there was no jurisdiction to hear it.

When is a claim "presented"?
Was the ET's conclusion right? Yes, said the EAT. Under section 111 ERA 1996, a claim for unfair dismissal must be "presented" within the relevant 3-month period. The EAT referred to the considerable body of case law relating to section 111 from which the following principles could be derived:

the claim must be received* by the ET within the applicable period; it is not enough that it is posted within that period (although if a claim is posted to arrive at the ET office in good time but is held up in the post, that may be a good ground for the ET to extend the time limit); * a claim is validly presented if it is delivered to the ET after office hours but before midnight on the last day of the limitation period; there is no requirement that the complaint has to actually have been put into the hands of a member of the ET staff; where there can be no actual receipt by the ET office (e.g. because the time limit expires on a non-working day and the office is closed), then in cases where presentation can still be made (such as by posting the claim through the letterbox of the closed office), the time limit will not be extended (see Swainston v Hetton Victory Club Ltd* [1983] 1 All ER 1179); if there are no proper means for presentation (e.g. there is no letterbox) then the limitation period may be extended to the next working day (see Swainston*).

Claims sent by post
The principles applicable to the presentation of ET claims by post were more fully explained by the Court of Appeal in Consignia plc v Sealy [2002] EWCA Civ 878. In that case (which pre-dated the ET Rules 2013) it was said that where a letter is sent by first class post, it is legitimate to apply the approach in civil cases as contained in CPR 6.7 and to 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 when post is not normally delivered). If a form is date-stamped on a Monday by an ET Office so as to be outside a three-month period which ends on the Saturday or Sunday, it will be open to the ET 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.

ET Rules and time limit
Mr Miah argued that in the light of the earlier case law, time was treated as extended to the next working day when it had not been possible to physically present the claim and when the time limit would otherwise have ended on a non-working day. Reliance was placed on Rule 4(2) of the ET Rules to support this argument.

The EAT disagreed with Mr Miah's submissions. Rule 4(2) ET Rules could not extend a time limit provided by statute. Although Rule 4(2) ET Rules was not in existence at the time when Consignia was decided, Rule 4(2) ET Rules did not change the approach which an ET is bound to adopt. As stated in Rule 4(2) itself, its applicability is to the ET Rules themselves, or to relevant Practice Directions and ET Orders - it does not apply to and could not change the statutory time limit in section 111 ERA 1996.

Therefore, where an ET office date stamps the ET1 as received on a Monday (or a Tuesday following a bank holiday), it is open to the ET to find as a fact that it was actually presented (i.e. physically delivered) to the office on the Saturday or Sunday (or the Monday, if that was a bank holiday). But that is a matter of fact for the ET to determine.

Reason for late claim
The reason why Mr Miah's claim was found not to have been presented in time (and time was not extended), was because the ET was not satisfied that Mr Miah's claim had in fact been posted sufficiently early so as to give rise to the assumption of delivery in time within the ordinary course of the post. In the circumstances, the ET had permissibly rejected the assertion that the claim had been posted on Thursday 26 January.

That being so and applying section 111(2) ERA 1996, the ET found that the claim had not been presented in time when it had been reasonably practicable to do so. It had correctly concluded that Rule 4(2) did not apply to change the statutory time limit imposed by section 111(2) ERA 1996 and the appeal by Mr Miah was dismissed.

Amendment to an unfair dismissal claim**

In October 2016 the Claimant brought various ET claims including an in-time claim of "unfair dismissal by reason of redundancy". Her Particulars of Claim were prepared with the assistance of a legal adviser. In May 2017 the Claimant (then acting without the legal adviser), applied to amend her claim. She sought permission to amend her complaint to allege "whistleblowing unfair dismissal" which she contended resulted after raising concerns with directors of the company about alleged wrongful business practices and alleged financial irregularities.

The EJ refused the amendment, concluding: "It amounts to a significantly changed case and adds a substantial new issue which plainly is brought considerably out of time…I exercise my discretion not to make this amendment".

Was the EJ's conclusion correct? The EAT thought not in In [Pruzhanskaya v International Trade & Exhibitors (JV) Ltd ]()UKEAT/0046/18/LA.

Species of unfair dismissal
At the Claimant's appeal, the EAT pointed out that dismissal for "whistleblowing" is an aspect of the right not to be unfairly dismissed. Section 94 ERA 1996 provides that an employee has the right not to be unfairly dismissed. Section 98 sets out the general framework of unfair dismissal law and sections 98B to 107 set out specific provisions for certain kinds of dismissal. Section 103A is one such provision: a dismissal is regarded as an unfair dismissal if the sole or principal reason for dismissal was that the employee made a protected disclosure. Section 111 then provides the right to complain to an ET of unfair dismissal: it is a single composite right and subject to a three-month time limit.

Amendment principles
There are two aspects to timing issues when considering an amendment application.

In Pruzhanskaya the EAT referred to Selkent Bus Co Ltd v Moore [1996] ICR 836 when Mummery J gave general guidance as to how applications for leave to amend should be approached ("The Selkent principles"). In terms of time limits, if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the ET to consider whether that complaint is out of time, and if so, whether the time limit should be extended under the applicable statutory provisions.

Secondly, there are no time limits laid down in the ET Rules as to when an amendment application can be made. Amendments may be made at any time - before, at and even after the hearing of the case. Delay in making the application is, however, a discretionary factor - "Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision" (Selkent).

New complaint of unfair dismissal?
Whilst the EJ was entitled to say that the proposed amendment added a significant new issue (whether the dismissal was due to the making of protected disclosures), there was "real difficulty" with the conclusion that it was "…brought considerably out of time". The proposed amendment did not involve a new cause of action brought outside a relevant time limit. Section 103A did not create a separate head of complaint to which a separate time limit applied.

Such a claim was an aspect of the right not to be unfairly dismissed under Part X of ERA 1996 and the Claimant had already brought an in-time complaint of unfair dismissal. A further potential reason for dismissal - the making of a protected disclosure - did not involve a new complaint with a new time limit.

Readers should also refer to the Presidential Guidance on General Case Management (dated 22 January 2018). This confirms that with regard to amendments, "An application can be made at any time…even after Judgment has been promulgated". The applicant will need to show why the amendment application was not made earlier and the reason why it is now being made. An illustrative example which may justify a late application is the discovery of new facts or information from disclosure of documents.*

Consequences of failing to lodge ET3 in time**

Does a Respondent's failure to enter an ET3 in time debar them completely from participating in a remedy hearing? Only exceptionally said the Court of Appeal (CA) in [Office Equipment Systems Ltd v Hughes ]()[2018] EWCA Civ 1842.

Ms Hughes issued various claims in the ET. However, the employer failed to meet that deadline for filing an ET3. The ET wrote to the employer, saying that:

"You did not present a response to the claim. Under rule 21 of the above Rules because you have not entered a response a judgment may now be issued. You are entitled to receive notice of any hearing but you may only participate in any hearing to the extent permitted by the Employment Judge who hears the case".

After deciding on liability, the case was to proceed to a remedy hearing. Solicitors acting for the company wrote to the ET asking the EJ "to exercise his/her discretion to allow the Respondent to fully take part in the consideration of remedy and to take part in any hearing on remedy". The ET responded by stating that:

"An employment judge has considered the information received from the claimant and it appears there is sufficient material on which to make a determination on remedy without the need for a hearing. The respondent's request to participate at remedy stage is declined. The matter will be considered on paper and judgment issued in due course".

The EAT upheld the ET's decision to debar the employer from participating in the remedy hearing, stating that the reason why the Respondent was not permitted to make representations was obvious: it had not entered a response to the claim in time and had been refused an extension of time. It had no right to make representations in the proceedings thereafter save to apply to an EJ at any hearing to be heard.

Wrong to assume no participation
At the Court of Appeal ("CA"), Bean LJ agreed with the approach that had been taken by the EAT in D & H Travel Ltd v Foster [2006] ICR 1537 - it was wrong to assume that unless a default judgment was set aside, the Respondent could play no further part in the proceedings.

There is no absolute rule that a Respondent who has been debarred from defending an ET claim on liability is always entitled to participate in the determination of remedy. The types of case will vary. At the lower end of the scale of claims, ETs routinely deal with claims for small liquidated sums where liability and remedy are dealt with in a single hearing. In that type of case, whilst it would generally be wrong for the ET to refuse to read any written representations or submissions from a debarred Respondent on the matter of remedy, proportionality and the overriding objective would not entitle the Respondent to a further hearing.

But in a case which is sufficiently substantial or complex to require the separate assessment of remedy after judgment has been given on liability, only "an exceptional case" would justify excluding the Respondent from participating in any oral hearing. It should be rarer still for an ET to refuse to allow the Respondent to make written representations on remedy.

Looking at the present case of Ms Hughes, it was not "exceptional".  There was a draft award of compensation by the ET of just under £75,000 and there was no reason why the company should have been precluded from making submissions on the quantum of the claim following the judgment on liability. An appropriate course would have been to invite the company to make submissions by a specified date and then for the EJ to consider whether an oral hearing was required. The EAT commented that it was "unfortunate" that this was not done.

The CA allowed the appeal, set aside the ET's draft decision on remedy and remitted the case to the ET for consideration of remedy.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.

Published: 07/10/2018 09:37

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