The claimant worked part time for the NHS. For the period up to 1988, the NHS pension scheme was compulsory for full time employees but part time employees were entirely excluded. From 1988 to 1991, the pension scheme was optional for full time employees but part time employees were entirely excluded. From 1991 to 2005, when the claimant joined the scheme, membership of the pension scheme was optional for both full time and part time employees. The claimant took out a private pension plan in 1991 but did not know that she could join the NHS pension scheme until 2005 after enquiries by her husband. She sought to join the scheme retrospectively to 1991 but this was rejected by the respondent. The claimant retired in 2010 and was advised by the head of payroll and pension services at the respondent that she had 6 months from the date of leaving to pursue her claims through the ET. She did lodge claims in respect of the three periods under the Equal Pay Act; her claim in respect of the first period succeeded, the claim in respect of the second period was struck out because she would have to establish that she would, on the balance of probabilities, have joined the pension scheme at some time during the relevant period and the claim in respect of the third period was dismissed because it was nearly 3 months out of time and an extension of time was not permitted. The claimant appealed.

The EAT upheld both aspects of the appeal. On the first issue, the EJ had erred by failing to apply a sufficiently stringent test before deciding the strike out the claim. On the second issue, the EJ had erred in failing to have regard to the fault on the part of the claimant.
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Appeal No. UKEAT/0614/11/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 19 April 2012

Before

THE HONOURABLE MR JUSTICE WILKIE (SITTING ALONE)

MRS G ANDREWS (APPELLANT)

(1) KINGS COLLEGE HOSPITAL NHS FOUNDATION TRUST; (2) SECRETARY OF STATE FOR HEALTH (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR THOMAS ROCHFORD (of Counsel)

Instructed by:
Lyons Davison
Westbury House
701-705 Warwick Road
Solihull
B91 3DA

For the First Respondent
MR CHRISTOPHER EDWARDS (of Counsel)

Instructed by:
Capsticks Solicitors LLP
1 St George's Road
Wimbledon
London
SW19 4DR

JURISDICTIONAL POINTS

Extension of time: reasonably practicable

Extension of time: just and equitable

PRACTICE AND PROCEDURE – Striking-out/dismissal

The Employment Tribunal erred in failing to have regard to the issue of fault on the part of the Appellant. The Employment Tribunal erred in failing to apply a sufficiently stringent test before deciding to strike out the claim.

1. This is an appeal against decisions of the Employment Tribunal dismissing claims made by the Appellant against the Respondent in respect of her entitlement under the Respondent's pension scheme. In the first decision the Appellant's claim under the Equal Pay Act in respect of membership of the Respondent's pension scheme during the period 1 April 1988 to 31 March 1991 was struck out on the basis that she had failed to demonstrate any reasonable prospect that her claim would succeed. In the second decision, her claim under the Industrial Tribunals (Extension of Jurisdiction) Order 1994 in respect of her membership of the first Respondent's pension scheme for the period from 1 April 1991 to 31 December 2005 was dismissed as having been brought out of time. The Tribunal found that the Claimant had failed to demonstrate that it was not reasonably practicable for her claim to be presented in time, and/or that, in the event that it was not reasonably practicable to bring it in time, that the claim was not presented within such further period as was reasonable.

1. The Employment Judge made a series of findings of fact. The Claimant was employed by the First Respondent as a clinical nurse specialist on a part time basis from September 1982. The rules of the relevant statutory pension scheme changed during the period of her employment. For the period up to 31 March 1988 the pension scheme was compulsory for full time employees; part time employees were entirely excluded. The period between 1 April 1988 and 31 March 1991 was a period during which the pension scheme was optional for full time employees but part time employees were entirely excluded. For the period between 1 April 1991 until 31 December 2005, when the Claimant joined the scheme, membership of the pension scheme was optional for both full time and part time employees. Thus, under the rules of the scheme, it was not until April 1991 that the Claimant could have joined the pension scheme. The Employment Judge found as a fact that she took out a private pension plan in April 1991, but that the Claimant was unaware at that time that she was eligible to join the pension scheme. She did not find out that she was eligible to join the pension scheme until November 2005 as a result of enquiries made by her husband.

1. Accordingly, the Claimant applied to, and joined, the scheme on 1 January 2006. She sought to join the scheme retrospectively to 1 April 1991. The First Respondent rejected that application for backdating, and it was the subject of a grievance taken up by the Claimant. The outcome of that grievance was that the First Respondent maintained its position that it would not backdate her entitlement under the scheme to 1 April 1991. Throughout the period of the grievance, and thereafter, the Claimant, in respect of her pension matters, dealt with a Mr Peacock, who was the head of payroll and pension services at the First Respondent. The Claimant was told in 2006 by Mr Peacock that she would have until a period of up to six months from when she left her employment to submit a claim to the Employment Tribunal for retrospective membership of the pension scheme. The Claimant, in fact, retired from her employment on 31 March 2010.

1. Leading up to her retirement, she had received a forecast of her pension entitlement, which was dated, it would seem, 20 January 2010. When she received her first payment under the pension scheme in April 2010 the figures were substantially less than had been projected. The documentation shows that she dealt with Mr Peacock in respect of her enquiry in relation to the discrepancy between the sums being received and the forecast she had been given. Mr Peacock had written to the external NHS pensions agency, having received a formal complaint from the Claimant on 19 May 2010, asking for a response to the query. On 22 June 2010 the external pensions agency replied to Mr Peacock to the effect that the forecast had been completed by reference to a start date of 23 September 1982, but in fact the payment was made by a reference to a start date of 1 January 2006, the date she actually joined the pension scheme. Mr Peacock omitted to communicate with the Claimant the effect of this outcome of her enquiry. He was nudged into responding by an email sent by the Claimant's husband on 11 August 2010, in which specific reference was made to the need for any claim to the Employment Tribunal to be submitted "by the end of next month," that is, by the end of September, six months after her employment ceased. In response to that email Mr Peacock, on 12 August, responded apologising for having forgotten about the matter and indicating that the response of 22 June would be sent out by post that same day.

1. The Employment Judge also found as a fact that, when the Claimant had obtained advice in relation to her personal pension in April 1991, she was not asked by her advisors to produce evidence of her employer's pension scheme. Her advisors were not aware that the Claimant was eligible to join the scheme, but they were aware of the fact that the Claimant worked in the NHS. The Claimant had been asked if it was possible that she would not have explored the NHS pension scheme because she had a private pension. Her response was that it was a very small pension that she had taken out in 1991 and was not substantial by any manner of means. The Claimant said, and it was accepted as a matter of fact by the Employment Judge, that it was not until August 2010 that she had taken steps to obtain legal advice. Legal advice was, in fact, sought in January 2011.

1. The claims made by the Claimant related to the three specific periods to which I have referred. It was common ground that the claim under the Equal Pay Act (EPA) in relation to period 1, from 23 September 1982 until 31 March 1988, had been brought in time; that is to say, within six months of the termination of her employment. It was common ground that the Claimant was entitled to the benefit of an equality clause and that the operation of the equality clause required that part time employees should be treated in the same way as full time employees. During that period of time it was compulsory for full time employees to be members of the pension scheme. Accordingly, had the equality clause been applied in the Claimant's case during that period, she too would have been compulsorily made a member of the pension scheme. Accordingly she inevitably had suffered detriment by the non application of the equality clause in that respect. Therefore her claim had to succeed in respect of that period. The declaration sought was accordingly made and was not opposed.

1. As far as the second period was concerned, that too was a claim under the EPA. The equality clause required that part time employees be treated in the same way as full time employees in respect of pension arrangements. However, the contractual provisions in respect of the full time employees simply gave them the option of being members of the pension scheme. Accordingly, the application of the equality clause in respect of period 2 required that the part time employees, including the Claimant, be given the option of joining the pension scheme during that period. It did not necessarily follow, however, that she suffered any detriment as a result of the equality clause not being applied to her in that respect. It was common ground that, in order for any detriment to be shown, she would have to establish that she would, on the balance of probabilities, have joined the pension scheme at some time during the relevant period, so that the non application of the equality clause in her case would thereby give rise to a detriment.

1. In respect of the third period, from 1 April 1991 to 31 December 2005, when she joined the pension scheme, the claim was not one under the EPA because, by that time, the contractual provisions in respect of full-time and part time employees were identical: they each of them had an option to join the pension scheme. The claim that was brought was a claim for breach of an implied term that the First Respondent would keep its employees, including the Claimant, informed of any change in the contractual arrangements, in particular those that might be beneficial to them and in respect of which they had to take steps in order to avail themselves of such beneficial changes. Reliance was placed on the authority of Scally v Southern Health Board [1991] IRLR 522. The significance of that being the nature of the claim was that, under the Industrial Tribunals (Extension of Jurisdiction) Order 1994 (section 7) the jurisdiction of the Employment Tribunal did not arise unless a complaint was made:

"(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or […]

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever period is applicable, within such further period as the tribunal considers reasonable."

1. In respect of the claim made in respect of period 3, on the face of it, the claim had been made out of time, just short of six months after the termination of the relevant employment. In respect of period 2 the claim under the EPA was brought in time, within six months of the termination of the employment. Thus the issues for the Employment Judge in this case were separate and distinct in respect of periods 2 and 3.

1. Mr Edwards has helpfully provided some background to the way in which Employment Tribunals organised the hearing of the very large number of cases to which the changes in the NHS statutory pension scheme gave rise. There was a series of information bulletins. Information bulletin number 9, in respect of part time worker pension schemes, contained some basic principles, drawn together and put in a readily accessible form by a Regional Chairman of Employment Tribunals, Mr Macmillan. That particular bulletin refers, in paragraph 7, to applicants who failed to join a scheme when they became eligible. Paragraph 7.2 reads as follows:

"Membership for full time employees not compulsory; part timers excluded. Your claim will not succeed in respect of this period of time if you did not join the scheme when the rules later changed to allow you to do so, or you only did so after significant delay. This is because your failure to join the scheme when you were allowed to suggests that had you been a full timer you would not have joined the scheme during this earlier period of time anyway, and therefore you have lost nothing. However, there is an exception where applicants who can satisfy a Tribunal that they would have joined during the earlier period had they been eligible. This is to allow for special cases such as those where by the time the rules were changed to enable part timers to join an applicant was so near to retirement that joining was pointless, or she had already taken out a private pension plan."

1. Mr Edwards went on to explain that, because of the very large number of cases coming through the Tribunals in respect of these changes to the pension arrangements, a process was devised whereby applicants were contacted, having had their attention drawn to the above relevant passage within the bulletin. They were asked to indicate if they wished to withdraw their claims. If they indicated that they did not wish to do so, the case would be listed for consideration by the Tribunal whether to strike out such claims as having no reasonable prospect of success. It appears that, in this case, this process was followed, although it may be that, in addition, the Respondents were asking for the Tribunal to strike the claim out. Certain it is that there were a series of standard form letters sent to applicants in those circumstances. One such letter sent in this case, dated 4 February 2011, concludes as follows:

"If the Employment Judge does not believe that there is an arguable case the claim will be struck out on the grounds that it has no reasonable prospect of success. If the Employment Judge believes that there is an arguable case, the claim will be listed for hearing."

1. The passage to which I have referred in the bulletin is, in fact, derived from authorities. That passage in the bulletin has been the subject of comment in a series of cases. These have been conveniently brought together in the decision of the Court of Appeal in [Coppel v Littlewoods PLC]() [2011] EWCA Civ 1281, reported [2012] IRLR 121. The Judgment of Elias LJ investigates the question of the burden upon an employee when she has to demonstrate whether she would have been likely, on the balance of probabilities, to have joined the scheme during the relevant period. Employment Judge Macmillan's bulletin, to which I have referred, was derived from the authority Preston v Wolverhampton NHS Trust (No. 3) [2002] All PLR 323. The same Employment Judge, in a later case, Betts v The Books Company PLC [2006] 2600121/96, fleshed out the details upon which those principles should operate; in particular, at paragraph 14 he said:

"As the presumption is evidential rather than legal, delay by itself cannot be decisive, although it clearly will have some, and particularly with long delays probably a major part to play in influencing the Tribunal in deciding whether a Claimant would have joined the scheme at an earlier date had she had the opportunity […]."

1. The use of the word "presumption" has been the subject of some concern, as it carries with it a connotation of a legal rather than an evidential burden or presumption. At paragraph 48 in Coppel Elias LJ refers to an EAT decision in Laverty v Lanarkshire Health Board and Anor UKEAT 0033/08 in which Lady Smith expressed some concerns about using the concept of presumption. She said as follows:

"I do not read these comments as indicating that there is a presumption in law that requires to be rebutted in any case where a Claimant has not joined the pension scheme when first allowed to do so or has delayed. Indeed, the governing statute, the Equal Pay Act, does not provide for any such presumption. Another way of putting it would be to recognise that as a matter of evidential assessment, a Tribunal will be entitled to infer from the fact that the Claimant did not join the scheme when she became entitled to do so or, if she did join later, that she delayed in doing so, she would probably not have joined it at an earlier date. However, as ever, the Tribunal will require to consider the whole facts and circumstances and will, equally, be entitled to conclude that the Claimant would have joined earlier notwithstanding her not having done so at the first opportunity if, on those facts and circumstances, it is satisfied that she probably would have done. As the present case shows, approaching matters in terms of presumptions which require to be rebutted may not always be helpful."

1. That was an approach with which Elias LJ expressed agreement, namely that she was right to caution against using the term "presumption". The way Elias LJ put it was set out at paragraph 51:

"[…] The Employment Tribunal relied heavily on Betts, in which Judge Macmillan emphasised that there may be numerous good reasons why no adverse inference can properly be drawn because of delay in joining. Furthermore, the Employment Judge recognised that the exercise was merely to draw inferences from the facts. I do not accept that the language of presumption demonstrates a material error of law. Nor do I resile from the observation I made in Dennison [v The University of St Mark & St John UKEAT/0196/06] that the failure to join when eligible will often be powerful evidence in support of the inference that the woman would not have joined even had she been eligible to do so. Human experience tells us that if a woman had really wanted to join the scheme, one might have expected her to join once she became eligible to do so."

1. In the present case the Employment Judge addressed period 2 in paragraphs 26 29 of his decision. In paragraph 26 he summarised the effect of paragraph 7.2 in bulletin number 9. In paragraph 27 he said as follows:

"The Claimant in this case took out a private pension plan in 1991. She did not provide any of the documentation in relation to the advice sought or the basis of the instructions to the independent financial advisor consulted at that time. She did communicate that she told the advisor that she was in NHS employment. It is hard to envisage that an advisor, being made aware of that fact by a part time employee of the NHS, would not have conducted further enquiry. It is clear such an advisor should have done so."

1. Then, in paragraph 28, having recorded the fact that the Claimant took out a private pension plan at the same time as the change in the rules in April 1991, said as follows:

"28. […] I do not accept that the Claimant stands any reasonable prospect of demonstrating that she would have joined the scheme at that time given the significant delay following that period. The period of delay is some 15 years and is entirely consistent with a Claimant who had decided to make her own provision being a part time employee of the Respondent and having other private work from another source.

29. It is therefore my conclusion that the claim in respect of the years 1988 to 1991 must fail."

1. In effect, what is said by the Claimant is that the Employment Judge has failed to apply the correct and stringent test required of him in considering a strike out application. The hurdle required before a claim can be struck out is an extremely high one. It has been best summarised by the Employment Appeal Tribunal in the case of [Balls v Downham Market High School & College]() [2011] IRLR 217, and in particular at paragraph 6, in the following terms:

"Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the Tribunal has to carry out is the same; the Tribunal must first consider whether on a careful consideration of all the available material it can properly conclude that the claim has no reasonable prospects of success. I stress the word "no" because it shows that the test is not whether the Claimant's claim is likely to fail, nor is a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions in deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects."

1. Furthermore, the Claimant attacks the reasoning of the Employment Tribunal against the background where the Employment Judge has found as a fact that she was not aware in April 1991 that she had become entitled to join the scheme and did not become aware until November 2005, a matter of weeks before in fact she did join the scheme with effect from January 2006. In those circumstances, where the Claimant did not as a matter of fact join the scheme at a time when she did not know that she could join it, it is said to be an error of law to have regard to the fact that she did not in fact join the scheme for a period of 15 years as providing an evidential presumption that she would not have joined the scheme earlier had the equality clause been applied to her. In effect, the argument is that it is wrong in law and/or a misunderstanding of the bulletin and/or perverse to conclude that you can have any regard to the state of mind of the employee, whether or not to join the scheme, when in fact she does not know that she can join the scheme. In those circumstances a failure to join the scheme is said to be of no evidential weight one way or another.

1. Furthermore, it is pointed out that the finding of fact that she did not know that she could join the scheme seems, to some extent, to fly in the face of the subsequent reasoning at the end of paragraph 28, which hints that, from April 1991 until 2005, she may have been conscious of the availability of the scheme to her but had decided to make her own private provision following the arrangements she made in April 1991. To the extent that that is part of the reasoning of the Employment Judge it is said that it is inconsistent with a clear finding of fact that she was not aware that she could join the scheme.

1. The third way in which this part of the Judgment is attacked is that it appears that the Employment Judge is seeking to impute to the Claimant either: the knowledge of her pension advisor that she could join the scheme, but which it has been found as a fact was never communicated to her, or seeking to impute to the Claimant the negligence of her advisor in failing to enquire whether the provisions of the NHS pension scheme had changed, so as to enable her to be advised that she could, as of April 1991, join the scheme. It appears that this line of reasoning must have had some influence on the Judgment of the Employment Judge, as he laid some emphasis upon it in paragraphs 27 and (indirectly) 28. For that to work against the background of bulletin number 9, paragraph 7.2, it is necessary for the Employment Judge to have concluded that the employee has imputed to her the knowledge or what ought to have been the knowledge of her pension advisor, and in that respect her failure to join for some 15 years when in fact she was unaware of the fact that she could join in some way enables the Tribunal to draw an evidential inference that, had she known in April 1991 or earlier that she could join the pension scheme, that she nonetheless would not have done so.

1. The Appellant goes on to argue that to rely on such an extended and tortuous process of reasoning as a basis for concluding that she has no reasonable prospects of success in demonstrating that she would, on a balance of probabilities, have joined the pension scheme had the equality clause been applied to her some time after 1 April 1988 is wrong in law and/or perverse.

1. In my judgment, given that the test that the Employment Judge was applying was the very high one of striking out only where it was demonstrated that the claim had no reasonable prospect of success, these criticisms of the Employment Judge's decision by the Claimant are well made. In my judgment, therefore, the appeal in respect of period 2 succeeds. Of course, that does not necessarily mean that the Appellant will necessarily succeed in this part of the claim. What it means is that that matter must go before an Employment Tribunal to be determined in the normal way after all the evidence has been adduced and after full argument has taken place. No doubt some of the arguments relied upon by the Employment Judge may be deployed by the First Respondent on that occasion, with whatever level of success remains to be seen, but, suffice it for today, I am satisfied that the Employment Judge has erred in law and/or has misunderstood or misapplied the findings of fact that he made in respect of period 2 of the claim and, accordingly, the strike out must be quashed.

1. As I have indicated, the issue in respect of the third claim was completely different. It is common ground that for the claim to be made in time, it would have to have been made by 30 June 2010. It was not made until 30 September 2010. The crux of the case revolves around what Mr Peacock said to the Appellant and the position that he held within the first Respondent's hierarchy. Mr Edwards, in his helpful skeleton argument, has summarised the relevant passages in the seminal case concerning whether it was reasonably practicable for a claim to be submitted in time; that is, in Wall's Meat Co Ltd v Khan [1979] ICR 52 CA. In particular, Denning LJ at page 55 said as follows:

"It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights—or ignorance of the time limit—is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or her fault, and he must take the consequences."

1. And, in the Judgment of Brandon LJ in the same case at page 59:

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within a period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."

1. It is to be emphasised that the focus of the Judgments of both Denning LJ and Brandon LJ was in identifying the crucial consideration as being fault on the part of the complainant, or on the part of his solicitors or other professional advisors, in not making such enquiries as he should reasonably in all the circumstances have made. In the present case the mistake as to the time period within which Employment Tribunal proceedings would have to be commenced in respect of the claim between 1991 and 2005 was not that of the complainant, and it was not that of her professional advisors, whether solicitors or otherwise. It was the fault, albeit innocent, of Mr Peacock, who told her, in terms, in the context of the refusal of her grievance and the clear indication that she would have to litigate in order to achieve what she wished, that she would have to make her claim to the Employment Tribunal within six months of the termination of her employment, whenever that might be. That was not a casual remark made in a social context by somebody in the hierarchy who happened to be above the Claimant. That was a specific statement made by a person who was in charge of pension and payroll matters, with whom the Claimant had been dealing throughout the period of her grievance and with whom she dealt, and through whom, as a conduit, her complaint, subsequent to the termination of her employment, about the amount of pension that she was receiving was conveyed to the external pensions agency and back again.

1. The Employment Judge realised that the role of Mr Peacock was crucial. What he said in relation to that was as follows:

"34. I do not consider remarks made by Mr Peacock can be relied on by the Claimant in this case as justification for failing to identify that the relevant time limit was three months not six months. It is not suggested that Mr Peacock sought in this way to mislead the Claimant into presenting her claim out of time. The Claimant was aware of the fact that she would have to bring a claim to the Employment Tribunal and the obligation to obtain relevant advice in relation to that lay on her."

1. It is said that the Employment Judge has misdirected himself and/or has failed adequately to deal with the position of Mr Peacock, and that he has erroneously focussed, it would appear, on the question of whether Mr Peacock's misleading information was given deliberately or, as is accepted by everyone, in good faith though, unfortunately, inaccurately. It is clear that the Employment Judge has effectively dismissed out of hand any suggestion that anything said by Mr Peacock could remove the necessary element of fault from the Claimant as described in the Wall's case. He has simply asserted, without further elaboration or consideration of the circumstances, that it is for the Claimant to obtain the relevant advice and that she cannot rely on anything that Mr Peacock said. In my judgment, that is an inadequate way of dealing with what, in the particular circumstances of this case, is a complex matter.

1. Mr Peacock was certainly not in a position of giving her advice, nor was he engaging with her to give advice. On the other hand, it is clear from the background and the subsequent correspondence that Mr Peacock was the person put forward by the First Respondent as the appropriate person for the Claimant to approach, to deal with, to give any explanation to her in respect of, and to make enquiries of the external agency about, her pension entitlement, its extent and quantification. Nor was he simply performing a clerical function. He was the head of pensions and payroll and put forward as a person of some authority. In my judgment, any Employment Judge viewing the circumstances of this case and realising: that the belief that she had six months after the termination of her employment to make her Employment Tribunal claim against the First Respondent was engendered by a statement made by an authoritative person representing her employer with whom she was dealing at the time in relation to her pension matters; could not reasonably have dealt with this issue in the dismissive way in which this Employment Judge did. In my judgment, having looked at all the circumstances, it is plain and obvious that the Claimant, in the particular circumstances of this case, not only did rely on what Mr Peacock was saying but was not at fault in doing so. Accordingly, in my judgment, the Employment Judge erred in law and/or misunderstood or misapplied his findings of fact in concluding that it was reasonably practicable for her, in these circumstances, to have made her claim within the three months as opposed to the six months.

1. That being so, the Employment Judge then went on to consider whether the further period, beyond three months up to 30 September, could be regarded as a reasonable period. At paragraph 35 the Employment Judge expresses himself as follows:

"In any event given that the time limit expired on 30 June in the context of breach of contract it is difficult to see how the Claimant's delay of almost three months can be regarded as presenting a claim within such further period as is reasonable. No detailed justification for that delay is given. I conclude that the Claimant's claim of breach of contract in relation to the Scally term is out of time and the Tribunal has no jurisdiction to entertain it."

1. It is, in my judgment, a clear misunderstanding and/or misapplication of the evidence and the findings of fact for the Employment Judge to say that no detailed justification for that delay is given. Mr Edwards did not seek to argue that this characterisation could be described as accurate. It is clear from the evidence that was before the Employment Judge, and the findings that he made, that there was a delay during which the Claimant was endeavouring to ascertain whether there was, in fact, a claim that she might bring in respect of the period post 1991, or whether there was simply a mistake on the part of the pensions agency in paying her less than had been forecast. It is clear that Mr Peacock forwarded her complaint reasonably promptly, by 19 May. It is clear that the First Respondent's pension agency responded to that query reasonably promptly, by 22 June. That was still within the three month period. Unfortunately, however, Mr Peacock then forgot to inform the Claimant of the outcome of that enquiry. He did not contact her again until he was provoked into doing so by her husband's email of 11 August which, explicitly, drew attention to the fact that the six month period, believed by her to be the relevant period, was fast coming to an end. At that point he did respond, thereby putting the Claimant on notice that she would have to commence Employment Tribunal proceedings in order for her wishes in respect of her pension to be achieved. The period subsequently of some six weeks during which, it appears, she was taking some steps to try to obtain legal advice by invoking her domestic insurance policy is not, in my judgment, a significant period of delay against her genuine and reasonably held belief that she had six months within which to commence proceedings. In fact, she did commence proceedings within the six months.

1. In those circumstances, in my judgment the Employment Judge was plainly wrong to say that she had not given any detailed justification for the delay. I am satisfied that it is plain and obvious that, had he had regard to the circumstances to which I have referred, the only reasonable conclusion for an Employment Judge to reach was that, in those circumstances, the further period of delay was reasonable. In those circumstances the only reasonable outcome would have been for the Employment Judge to have permitted the claim to proceed, notwithstanding the fact that it was nominally made out of time.

1. In those circumstances, the appeals by the Claimant against the decisions to strike out in respect of period 2 and to dismiss in respect of period 3 are upheld. Those decisions are quashed. The case will fall to be pursued before the Employment Tribunal in the normal way in respect of the claims in respect of periods 2 and 3.