Appeal No. UKEATPA/0966/09/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 March 2010

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MISS A CARTER (APPELLANT)

THE BLACKSTONE GROUP INTERNATIONAL LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MISS A CARTER

(The Appellant in Person)

JURISDICTIONAL POINTS

EXTENSION OF TIME: REASONABLY PRACTICABLE

The Claimant was one day out of time in presenting her unfair dismissal claim. She knew the time limit and had been represented. The Employment Judge was entitled to find that her medical evidence as to the last three days was incredible, and to reject the contention that tribunal staff had wrongly advised her. It was reasonably practicable to present the claim in time.

1. This case is about the time limit for presenting an unfair dismissal claim to an Employment Tribunal. It is a period of three months: Employment Rights Act 1996 s111, which by the practitioner's rule of thumb is three months less a day: Manchester City Council v Joshi UKEAT/0235/07.

1. I will refer to the parties as the Claimant and the Respondent. I have read the papers submitted by the Claimant who appears as a litigant in person and is entitled to the generosity customarily afforded in this court to people who represent themselves. However, she has two advantages: she is highly articulate and although I know she has a medical condition which causes stress in doing this, she has done her case full justice. The second is that she has been assisted by an experienced representative, Mr Capek who is assiduous in the preparation of the materials before us. He has produced a full submission, not a skeleton, which runs to 25 pages.

1. It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Weiniger sitting alone at London Central with reasons provided on 22 June 2009. The hearing was conducted following a CMD in which various jurisdiction issues had been set out. At the same time, orders were made in respect of the onward transmission of parts of the case which survived the preliminary ruling. The Claimant was represented by Mr Davies, a solicitor, the Respondent by Mr Brown of counsel. At the outset issues were clarified and the central issue was to determine whether the claim in respect of unfair dismissal was made within the three month period and if not, whether it was reasonably practicable for it to have been made in that time, and if it was not reasonably practicable, whether time should be extended by one day under s111.

1. The issue therefore was reasonable practicability. The Employment Judge found against the Claimant on that factual issue she appeals. In Haritaki v SEEDA EATPA/0006/08 paragraphs 1-13 I set out my approach to rule 3 and it should be read with this judgment. On the sift of this Notice of Appeal in accordance with the 2004 Practice Direction, His Honour Judge Birtles exercised his power under rule 3(7) and came to the following conclusion:

"The Employment Judge was entitled to make the findings of fact that he did and reach the conclusions he did. He applied the relevant law correctly. The Notice of Appeal is an attempt to reargue the case on the facts. It raises no error of law."

1. The Claimant exercised her right to have a hearing. The issue before me is whether on the material I have on this fresh application there are reasonable prospects of success. The legislation relevant to today's proceedings is as I have set out above. The Employment Judge directed himself correctly in relation to s111.

1. The facts are contained in the judgment and in a four page reasoned judgment refusing an application for a review on 24 August 2009, and I will take both sets of reasons together.

1. It is common ground that the deadline was 17 December 2008. The claim was presented a day late. By that time, the Claimant had been in the hands of solicitors who had issued a letter before claim on 18 November 2008. She has also been in the hands of at least one regulated claims management agency. She had also been in touch with the Employment Tribunal. She knew the time limit.

1. The Claimant's principal contention was that it was not reasonably practicable for her to present her claim by 17 December 2008 because of her medical condition. The judge considered in detail the medical evidence, in particular, a period of alleged incapacity from 14-17 December 2008. He found the material relating to this incredible and gave cogent reasons. Her medical condition did not prevent her from presenting a claim within time. She had taken other steps in relation to her complaint and the judge found there was no impediment to it. It was thus not necessary, or open to him, to consider the discretionary extension of one day under s111.

1. The judge gave particular attention to the difficulties which always face Claimants at the end of the three month period. The guidance given by Potter LJ in Shultz v Esso Petroleum [1999] EWCA 1015 shows particular scrutiny needs to be given to the end of the period because, as often happens, people leave it to the very end then a glitch occurs. The judge was alert to that, but on his findings as to the Claimant's medical condition in the run up to the deadline, this did not arise.

1. The second issue related to what the Claimant said was information given to her by Mr Hunter, a member of the Tribunal staff. The circumstances were set out by the judge:

"29. The Claimant told me that she contacted the London Central Employment Tribunal in late November. In paragraph 49 of her written witness statement she did not name Mr Hunter, though she did in her oral evidence today. I do not accept that she was told in November by Mr Hunter that the expiry date for bringing her claim was 18 December because if so she would have no need to enquire of Mr Hunter on 18 December as to the expiry date as she told me in oral evidence she had. I accept she did speak to Mr Hunter on 18 December 2008, but by that date the time for a claim which did not require a grievance had already expired and no information which could have been given to her by Mr Hunter could have saved such claim. Accordingly I reject her evidence that prior to the expiration of the time within which a claim not requiring a grievance must be brought she was given advice by the Employment Tribunal of the date by when such claim must be brought."

"52. … For the reasons given above whatever advice was given on 18 December 2008 cannot govern the question I have to decide which is the practicability of bringing the claim in time. By that date the period had already expired. I have also addressed my finding above on the matter of any earlier conversation with Mr Hunter. In any event there was no reason why she should rely on a member of Tribunal staff, or treat them as holding themselves out as advisers when she had already consulted professionals and knew of the availability of advisers who held themselves out as providing services for payment, could have consulted any such advisers, or other professional advisers, and anyway had received correct advice from those she paid for advice who had substantially prepared her Claim Form in good time. With regard to the Claim Form, drawn up by solicitors, I find it was the solicitors who filled out paragraph 12 with their details as representatives …."

1. The Claimant was dissatisfied and wrote directly to the Employment Tribunal administration which replied citing the Claimant's contention that she had been given wrong information. The judge read this letter and considered that the matter had been determined judicially by him in the paragraphs which he had cited. The Tribunal is at best indicating that there may have been incorrect information but this was the subject of a judicial determination by Judge Weiniger. He did not accept the Claimant's evidence that Mr Hunter advised the Claimant that the deadline expired on 18 December. That would have been incorrect information and whatever may be the impression given by the administration, what happened on that day has been determined judicially.

1. The Claimant complains in her application for a review that Mr Hunter should have been called. But as the judge points out the Claimant was represented by Mr Davies and there was no application for evidence to be given by Mr Hunter. Both of the grounds which were live issues before the judge indicating why it was not reasonably practicable were dismissed, in my view, correctly. Reliance upon a member of staff in any event would not generally justify a finding that it was not reasonably practicable to present the claim. Given the judge's finding on the medical evidence, I cannot see that, even if Mr Hunter had before 18 December advised as to that date, it was not reasonably practicable to present the claim until 18 December. That however is not an issue which I need to decide.

1. Placed before me today were two additional documents; there is a summary headed 'Medical Information' drafted by the Claimant indicating her medical condition which is drawn from the notes. The judge reached a permissible conclusion on his reading of the medical evidence. There are also two further documents submitted emanating from Mr Capek, which I have read with care, but which do not arise for decision.

1. Lest the Claimant feel a lingering dissatisfaction, I will deal with a secondary issue under the Employment Act 2002 (Dispute Resolution) Regulations 2004. Regulation 15 provides for an extension where a Claimant reasonably believes that there is an ongoing procedure for handling her dismissal – see my judgment in Shaw v Remploy [2009] ICR 1159, and Towergate v Harris [2008] ICR 1200 where the Court of Appeal upheld my approach to the subject. However, that issue fell away because it was conceded by Mr Davies apparently acting on the Claimant's behalf. The judge referred to Regulation 15:

"The Claimant confirmed that as a consequence there was no automatic extension under paragraph 15 of the 2004 Dispute Resolution Regulations and that the question before me in respect of this allegation is whether the claim was in time. If not, is time to be extended on the grounds that it was not reasonably practicable for the claim to be brought in time or within such further period as the Tribunal considers reasonable. Accordingly my decision has been made on the basis of the third issue as reformulated."

1. The view I have taken on the above authorities is a broad one as to the meaning of "a dismissal … procedure". I have looked at what could be said to be in the Claimant's mind if this issue had been before the judge. Reliance is placed upon the letter before claim of 18 November 2008. Apart from one matter, a request for the personnel file and all emails referring to her in accordance with the Data Protection Act, this requires no action by the Respondent. It does not seek a reversal of the dismissal or a discussion about it; it simply threatens legal action which the Claimant is said to be making.

1. In any event, this was followed by a letter from solicitors representing the Respondent on 26 November 2008 dismissing all the assertions. The natural reading of this letter is that no procedure is being followed in relation to the dismissal. As to the data protection issue, the Respondent did not reply until after 17 December 2008. Without a finding or submissions of the Respondent in my judgment these two letters would not give reasonable grounds for the represented Claimant to believe that there was on that date a procedure in accordance with Regulation 15. So even if this issue were live before the judge, or me, it would take the Claimant nowhere.

1. In those circumstances, I come to the same conclusion as Judge Birtles. I see no error of law. These were factual matters to be determined by the judge having heard evidence, the Claimant was legally represented and the points were put forward on her behalf. The application is dismissed and with it the underlying appeal. The matter will now go back to the Employment Tribunal for it to organise a hearing on the substantive issue which the Claimant seeks to raise.