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Appeal No. UKEATS/0015/10/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET EDINBURGH EH3 7HF

At the Tribunal
On 22 September 2010

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

COMMUNITY INTEGRATED CARE (APPELLANT)

MS C M PEACOCK (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR G ADAMS
(Solicitor – Advocate)
CIC
Old Market Court
Miners Way
Widnes
Cheshire
WA8 7SP

For the Respondent MR McGUIRE
(of Counsel)
Instructed by:
Messrs Hann & Co Solicitors
1 Bridgend
High Street
Annan
Dumfriesshire
DG12 6AG

**SUMMARY
UNFAIR DISMISSAL
PRACTICE AND PROCEDURE** – Preliminary issues

**THE HONOURABLE LADY SMITH
Introduction
**1. This is the case of Community Integrated Care against Miss Clare Marie Peacock.  This is an employer’s appeal from the judgment of the Employment Tribunal sitting in Glasgow.  Employment Judge Ian McPherson sitting alone, registered on 4 March 2010, holding that although the Claimant’s claim for unfair dismissal was presented outwith the statutory three month period, it was not reasonably practicable for her to present it in time and that in presenting it some three weeks later, it had been presented within a reasonable time thereafter: see section 111(1) and (2) of the Employment Rights Act 1996.  I will continue referring to parties as Claimant and Respondent.  The Claimant was represented by Mr Joseph Hann solicitor before the Employment Tribunal, and by Mr McGuire, advocate, on the instructions of Mr Hann before me.  The Respondent was represented by Mr Gareth Adams, solicitor, before the Tribunal and before me.

**The Facts
**2. I turn to the background.  The Respondent, having raised the issue of time bar, a pre-hearing review was fixed.  Evidence was led only from the Claimant.  The facts, as found by the Employment Judge, can be briefly stated as follows.  The Claimant was employed as a support worker by the Respondent and was dismissed on grounds of gross misconduct on 15 June 2009.  She appealed against her dismissal.  She consulted Mr Joseph Hann, her solicitor. She had first instructed him when suspended at an earlier date, on 16 June 2009.  On that date a discussion took place between the Claimant and her solicitor in which something was said about a three month time limit.  The Tribunal found:

“From evidence led at this Tribunal, it is not clear whether she understood this to be a statutory time limit for lodging a tribunal claim, rather than a timescale for the Respondent’s to deal with her internal appeal.”

3. That is, whatever Mr Hann said to the Claimant (and notwithstanding the fact that he was present representing the Claimant at the Tribunal) , the Employment Judge did not have the assistance of his evidence on that matter.  The finding is to the effect that he did not effectively communicate to her that she had only three months from 15 June 2009 in which to present a claim for unfair dismissal, if she wished to do so.

4. After that meeting Mr Hann made various representations in correspondence to the Respondent on behalf of the Claimant in connection with her appeal.  The Claimant met with him again on 29 June.  Prior to that meeting, Mr Hann had written to her enclosing a form of authority for her signature and return, a request with which she complied.  There is no finding that Mr Hann advised her about the three month time limit for presenting a claim for unfair dismissal at either of those meetings, nor did Mr Hann advise the Claimant in writing of the time limit or ask her in writing or otherwise within the three month time limit, whether she wished to instruct him to do so or what she needed to do as regards completing a form ET1 if she did want to proceed with such a claim.

5. His attention was evidently focused on the Claimant’s appeal.  However, by letter dated 14 July 2009, he wrote to the Respondent in terms which included:

“Your failure to accept our client’s notification to appeal CIC’s decision will be founded upon in future proceedings to the Employment Tribunal for Scotland if necessary.  We look forward to a date being fixed for the appeal.  If you refuse or delay to fix a hearing within a reasonable period of time, we shall be forced to make an application direct to the Employment Tribunal for Scotland, under the explanation that you have refused or delayed to allow an internal appeal.”

6. On 7 September 2009, he wrote to the Respondent in the following terms:

“We refer to previous correspondence in connection with the above and are disappointed not to have received a response.  If we do not hear from you within seven days we intend to lodge a claim with the Employment Tribunal for Scotland.”

7. It is thus evident that Mr Hann was well aware of the availability of a Tribunal claim, considered that the Claimant did have a stateable claim for unfair dismissal and was aware of the fact that no claim had been presented to the Employment Tribunal as at 14 July 2009, or as at 7 September 2009.  He should also have been aware of the fact that by 7 September 2009 there was but one week left within which to do so timeously.  The same day he copied that letter to the Claimant and wrote to her in terms which included:

“Please make an appointment with our Mr J Hann as a matter of urgency.”

8. It is not at all clear why he did not spell out the pressure of the imminent expiry of the three month time limit in that letter.  It would have been easy for him to do so.  The Claimant did not contact Mr Hann urgently, a matter which she attributed to being basically an emotional wreck.  She did, however, attend the hearing of her appeal on 8 September 2009, which would seem to indicate that whatever her emotional state, she was able to take important steps in connection with her dismissal with a view to protecting her employment rights, at that time.  Just as, following her dismissal, she was able to attend meetings with her solicitor, respond to correspondence from him and instruct him to lodge an appeal against her dismissal with her employers.

9. Her appeal was unsuccessful but she did not know that until the outcome was intimated to her by letter of 16 September.  The Claimant subsequently arranged to see Mr Hann and met with him at his office on 1 October 2009.  She then instructed him to present a claim for unfair dismissal to the Employment Tribunal.  He wrote to her that day, presumably after their meeting, asking her:

“To call into the office in order to sign ET1 form, which is to be lodged with the Employment Tribunal.  Also we require information from you regarding your employment start date, rates of pay, and overtime arrangements et cetera.  We look forward to hearing from you.”

10. There is no finding as to why these details were not taken from the Claimant at the meeting on 1 October, or indeed long before then, and the form completed and signed at that time.  There is no finding as to when the Claimant provided the information and signed the form ET1.  It was presented to the Employment Tribunal office subsequently on 7 October 2009.

11. No medical evidence was led and no medical report was produced.  The Employment Judge nontheless,made a finding that the Claimant suffered from severe depression which intensified after her dismissal (see paragraph 18(35(a)).  That is, whatever the nature of her condition, it was such as to prevent her working prior to her dismissal, and I will say more about that later in this judgment.

12. As regards her condition during the three month period thereafter, whatever that condition was it is evident that she was able to attend meetings with her solicitor and, furthermore, either read and understand a letter advising her about her appeal hearing, or fully understand the content of a telephone conversation with her employers about it.  It is not clear from the findings which of the two was the means of communication of the appeal date to her.  But, importantly, it is evident that she was also able to attend that hearing on 8 September, alone and unaccompanied.  That is covered at paragraphs 23 and 24 of the Tribunal judgment.

13. The Employment Judge also makes findings about the Claimant having a reaction whereby her depression spiralled out of control after she received the letter intimating that her appeal had been unsuccessful.  But that was not until after the expiry of the three month time limit.  The Claimant fell behind with her rent and proceedings for eviction were taken against her.  Arrears had begun before her dismissal and persisted after dismissal.  It is not clear from the findings when eviction proceedings commenced, there is no specific finding that they had commenced prior to the expiry of the three month time limit.

14. The Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 include the following provisions:

“(9)  Effective Communication. Solicitors must communicate effectively with their clients and others.  This includes providing clients with any relevant information which the solicitor has and which is necessary to allow informed decisions to be made by clients.  It also includes accounting to clients for funds passing through the solicitor’s hands.  Information must be clear and comprehensive and, where necessary or appropriate, confirmed in writing.  Solicitors must advise their clients of any significant development in relation to their case or transaction and explain matters to the extent reasonably necessary to permit informed decisions by clients regarding the instructions which require to be given by them.”

15. Then, under Competence, Diligence and Appropriate Skills:

“(10)  Solicitors must only act in those matters where they are competent to do so.  They must exercise a level of skill appropriate to the matter.”

16. It is very difficult to think of any circumstances in which an ordinarily competent solicitor, who advises in respect of an employment matter, could be excused for being ignorant of the three month time limit provided for by section 111 of the Employment Rights Act 1996.  Thus, in the normal case, the duty to advise any client who complains about a dismissal of that time limit given the risk that, if it is missed, the opportunity to present a claim for unfair dismissal to the Employment Tribunal will not be open to the client,  plainly arises under paragraph 9 of those rules.

17. I turn to the Tribunal’s judgment in this case.  The Employment Judge addressed the question of whether or not it was reasonably practicable for the Claimant to present her claim timeously, solely as a question of fact rather than as a question of mixed fact and law, as he ought to have done. He then found that it was not reasonably practicable for her to do so for the following reasons. First, at paragraph 54, he said she:

“Suffered from severe depression and that her frame of mind was such that she could not function normally.”

18. That conclusion is one which on the Employment Judge’s findings relates to the whole of the three month period.  The next reason he advanced, in paragraph 55, was that there were other pressures on the Claimant:

“During and after the prescribed period.”

19. Although it is to be noted that the Employment Judge does not explain how the apparently irrelevant nature of anything that happened after the relevant period could have any bearing on the issue.  He then relied on the fact, as he saw it, that the Respondent was to be criticised for having delayed the hearing of the appeal and that they were to be criticised for having failed to notify Mr Hann of the date of that hearing (although, in accordance with normal practice, Mr Hann would not have been present at the appeal), and for not having intimated the outcome of the appeal earlier.  The Respondent was not, I would hasten to add, found to have been in bad faith in any respect.

20. In deciding that the claim was presented within a reasonable period thereafter, the Employment Judge relied on it having been presented within three weeks after the time limit, on the Claimant’s personal difficulties and on his assessment that it would not be difficult for the Respondent to answer the claim.  As regards the part played by Mr Hann, the Employment Judge stated that the Claimant was not misled by Mr Hann and added:

“There is no suggestion of any wrong advice to her from her solicitor, Mr Hann.”

The Employment Judge does not address the question of whether the advice given by Mr Hann was, in the circumstances, adequate.

**Relevant Law
21. I turn to the relevant law.  I have already referred to the relevant statutory provisions.  The claim being prima facie time barred, the Employment Judge required to ask himself first, was it reasonably practicable for the Claimant to present her claim within the primary three month time limit?  Secondly, if not, was it presented within a reasonable time thereafter?  He also required to recall that it is well established that the fact that an appeal is pending does not, of itself, delay the running of the three month period, Palmer v Southend-on-Sea Borough Council** [1984] IRLR 119.

22. It follows that delay in the appeal process does not do so either.  The attention given by the Employment Judge to the above criticisms of the Respondent regarding their handling of the appeal procedure do not show that it was not reasonably practicable for a claim to be presented to the Employment Tribunal in time.  The question of reasonable practicability cannot be answered without ascertaining what, if anything, the Claimant knew about the time limit during the three month period.  Then, if the Claimant was unaware of the time limit, the question that requires to be answered is whether or not the Claimant was reasonably ignorant of it: Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520, Marks & Spencers PLC v Williams Ryan [2008] ICR 193.  In this case that means considering whether or not the Claimant was reasonably ignorant of the time limit prior to her meeting with Mr Hann on 1 October.  In circumstances where he, her solicitor, was acting for her throughout that period.

23. As was explained in Williams Ryan:

“If an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely on that fact to excuse a failure to make a complaint to the Employment Tribunal in due time.  The fault on the part of the advisor is attributed to the employee.”

24. Thus it was in the case of [Northamptonshire County Council v Entwhistle UK ]()EAT/0540/09/ZT, that Mr Justice Underhill, the President, determined that where a solicitor’s advice about the time limit was negligently given it followed that it was reasonably practicable for the claim to have been presented in time.

**The Appeal
**25. Turning to the appeal.  Mr Adams submitted that the Employment Judge had erred in law.  The Claimant had taken legal advice as soon as she was suspended and had a solicitor acting for her from then, throughout and beyond the three month period.  The solicitor plainly had a duty to advise his client about the three month time limit.  It was plain from the text of the 14 July and 7 September letters that a Tribunal claim was being considered.  That confirmed the existence of a duty to advise.  It was not enough simply to find that such advice as was given was not wrong.  The point was there was a duty to spell out the three month time limit.  There was a duty to obtain instructions from the client to present a claim to the Tribunal, or clear instructions that she did not want him to do that.  It might even be said that, in the circumstances, there was a duty to lodge a form ET1 even without instructions.

26. The Employment Judge had failed to ask himself the right questions.  So far as the Claimant’s health was concerned, on the findings in fact she did not suffer a persistent disability throughout the period or, indeed, the end of the relevant period.  He referred to the case of Schultz v SO Petroleum Company Ltd [1999] ICR 1202.  Mr Adams submitted that it was impossible to reconcile a supposed inability to instruct a solicitor to present a claim to the Employment Tribunal until 1 October, with the Claimant’s evident ability to respond to intimation of her appeal hearing and appearance at it.  He referred also to her ability to meet with her solicitor during the three month period.  In summary, Mr Adams submitted that it could not be desirable that if a solicitor did less he was protected more, but that was what, in essence, the Claimant argued for here.  The appeal should be allowed and the claim dismissed.

27. Mr McGuire for the Claimant focused his submissions on the various findings regarding the Claimant’s personal circumstances.  He accepted that a solicitor could be at fault for an omission as well as for an act.  He submitted that although the Employment Judge did not use language to cover both the issues of act and omission, he was to be read as saying that Mr Hann was not at fault at all and he was entitled so to conclude.  He referred in the course of his submissions to the cases of Dedman, Schultz and The Royal Bank of Scotland PLC v Theobald [2007] UK EAT/0444/06/RN.

28. He submitted that there was no duty on the part of Mr Hann that was relevant because he was not instructed to present a claim to the Employment Tribunal until 1 October, the appeal should be refused, and if I was not with him I should order the case be remitted for a rehearing of the evidence to the same Employment Judge.  He envisaged the Claimant giving evidence again and although he had no instructions on the matter, he could see that it was possible that Mr Hann might give evidence at any such rehearing.

**Conclusion
**29.   Given the findings in fact, the fundamental difficulty in this case seems plain.  The Claimant was not clearly advised by Mr Hann about the three month time limit at the time that he should have done so.  He had the opportunity to do so orally at the meetings he had with the Claimant, and he could also have done so in writing.  In particular, he could have done so at any of the points when he wrote to the Claimant after 16 June, including in his letter of 7 September, which was prior to the Claimant hearing about the outcome of her appeal and suffering the downturn in her ability to cope that is referred to.

30. Absent any finding that the Claimant was so advised, and there are none, it cannot be concluded that it was not reasonably practicable for her to present her claim in time.  The findings about her attending meetings about her appeal, dealing with Mr Hann’s correspondence regarding giving him signed authority to act, and attending the appeal hearing itself are indicative of her, whatever the state of her health or emotions, being able to attend to important matters relating to her dismissal  and the protection of her employment rights.

31. As regards the matter of her health, the Employment Judge’s firm conclusion that the Claimant was suffering from severe depression and was unable to function normally throughout the three month period, is surprising given that he heard no medical evidence and had no medical report before him.  All he had was the Claimant’s own evidence, the findings on which are confusing.  He finds that her medication was increased by her general practitioner “after she was dismissed” and “after she knew she had lost her appeal”.  Does that mean that it was increased twice?  That seems doubtful.  Or is the reference to “after she was dismissed” meant to refer to the latter time, which would suggest that there was only one significant deterioration in her health, after she knew she had lost her appeal; that would make sense.  Or is the correct picture, perhaps more likely, that the Claimant herself was not specific about these matters and gave only general evidence which, however credible, could be of little weight for the purposes of the question that the Employment Judge had to address.

32. There is also the matter of his finding that she was prescribed and apparently took medication for relief of her symptoms, and the fact that it would seem to have worked well enough despite whatever downward spiral she suffered after the news of the failure of her appeal, to enable her to consult Mr Hann on 1 October.  In any event it is, in my view, quite clear that, properly analysed, the findings do not amount to debilitating effect so as to prevent the Claimant from taking steps to instruct that a claim be presented to the Employment Tribunal during the three month period, had she been made aware by her solicitor of the time limit for doing so.

33. That is, as I indicate, a side issue because the central point is the fault of the advisor.  This is not a case where the Claimant’s health was so bad as to lead to the conclusion that even if she had been told about the time limit by her legal advisor she could not reasonably have been expected to be able to instruct the presentation of a claim.  The factual findings all point to her having been in a position to do so if she had been told about it.

34. She was able to instruct that one set of proceedings, namely an appeal against her dismissal, be lodged.  It could only be concluded on the findings in fact that she would have been able to instruct another set of proceedings, namely to present a claim against her employer before the Employment Tribunal before the expiry of the three month time limit if she had been told about it.  Those are instructions which she was well able to give at the start of October 2009.

35. In these circumstances I am satisfied the Tribunal has fallen into error, as submitted by Mr Adams, and I will pronounce an order upholding the appeal and dismissing the claim.  All that remains is for me to thank you both for your assistance today with your submissions in respect of this matter.