The claimant's claims were dismissed because they had been lodged 1 day out of time. The claimant was allowed to appeal on 2 grounds:

(1) It was perverse of the ET to find that it was reasonably practicable for the claimant to present her claims in time; alternatively, the ET erred in failing to take into account material considerations and/or failed to give adequate reasons. Specifically the error made by the claimant was one she had made in her earlier claim (relying - on the claimant's case - on advice she had been given by a member of the ET staff), which had been permitted to proceed. The inconsistency in approach in these two matters was a material factor that the ET ought properly to have taken into account and/or given adequate reasons as to why it did not consider it relevant. Alternatively it was perverse to reach such an inconsistent finding.

(2) Additionally, the respondent itself had considered the unfair dismissal claim to have been presented in time and, in all the circumstances (which included the claimant acting as a litigant in person when English was not her first language), the ET's conclusion to the contrary was unsustainable.

The EAT dismissed the appeal. The ET here had adopted the correct approach and reached a conclusion that was entirely open to it. No error of law was disclosed.

________________

Appeal No. UKEAT/0132/14/JOJ

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 6 February 2015

In chambers

On 22 May & 16 June 2015

Judgment handed down on 29 June 2015

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

KOUDRIACHOVA (APPELLANT)

**

**

UNIVERSITY COLLEGE LONDON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written submissions

For the Respondent
Written submissions

JURISDICTIONAL POINTS

Claim in time and effective date of termination

Extension of time: reasonably practicable

ET claims of unfair dismissal and for unlawful deductions presented one day out of time; whether the ET had erred in holding it had been reasonably practicable for the claims to have been presented in time and thus that it had no jurisdiction to determine them.

Held:

Dismissing the appeal. The ET had concluded that the Claimant had lodged her claims one day out of time because of her mistaken belief as to when the time limit expired. It did not find that belief had been reasonably held. That was a permissible view on the evidence before the ET.

As for whether the ET ought properly to have taken account of the conclusion of a different ET on a different claim by the Claimant against the Respondent, that argument was not tenable: (1) at the time the ET made its ruling in the present claims, the other ET's decision had not been made, still less sent it to the parties; and, in any event, (2) the two ETs were answering different questions.

Moreover, the fact that the Respondent had not raised the time limit point earlier did not mean that the ET was not bound to consider it. This was a jurisdictional point and could be taken at any time.

Generally, the ET adopted the correct approach and reached a conclusion entirely open to it on the evidence and findings of fact.

1. I refer to the parties as the Claimant and the Respondent as they were below. I use the abbreviation "ET" to refer to the Employment Tribunal and "EAT" when referring to this court. The appeal is that of the Claimant against a Judgment of the London (Central) ET (Employment Judge Glennie sitting alone on 9 December 2011), sent to the parties on 1 February 2012. The Claimant appeared before the ET in person, assisted by her daughter. The Respondent was then represented by a solicitor. Subsequently it has been represented by Ms McCann, counsel.

1. By its Judgment the ET struck out the Claimant's claims of unfair dismissal, unlawful deductions from wages, and breach of the Working Time Regulations on the basis that those complaints had been presented out of time such that the ET did not have jurisdiction to consider them. It is with that decision that this appeal is concerned.

1. The Claimant was initially appointed to a fellowship with the Davy Faraday Research Laboratory of the Royal Institution of Great Britain for five years, from 1 September 2005 to 30 August 2010. With effect from 1 August 2007 her appointment was transferred to University College London, where she was employed as a Senior Research Associate in the Department of Chemistry, until she was dismissed by reason of redundancy on 28 February 2011. Thereafter the Claimant lodged three ET claims: (1) on 8 March 2011, claiming unlawful deduction from wages and/or breach of contract (case no. 2200942/2011); (2) on 28 May 2011, claiming unlawful deductions from wages and breach of the Working Time Regulations (case no. 2201990/2011); (3) on 28 May 2011, claiming unfair dismissal, sex discrimination, race discrimination and age discrimination (case no. 2201995/2011).

1. The hearing of the claims in case no. 2200942/2011 took place on 17 May, and 11 and 12 August 2011, with the London (Central) ET (EJ Walker sitting with members) then deliberating on 1 December 2011 and 26 January 2012. The ET upheld the Claimant's claims for unlawful deductions in part, but dismissed the majority of her claims. The ET's Judgment and Reasons, comprising 36 pages (170 paragraphs), were sent to the parties on 6 February 2012. The Claimant then sought to appeal; the grounds including various allegations of procedural irregularities subsequently put into affidavit form, and comments in response sought from the Employment Judge and the ET members. At a hearing under Rule 3(10) of the EAT Rules, on 26 March 2014 (HHJ Birtles presiding), the proposed appeal was found to disclose no reasonable basis for the matter to proceed and was accordingly dismissed.

1. Meanwhile, at a Pre-Hearing Review on 9 December 2011, the ET (EJ Glennie sitting alone) struck out the unfair dismissal case in case no. 2201995/2011, and the entirety of the claim for unlawful deduction of wages and/or breach of the Working Time Regulations in case no. 2201990/2011, on the basis that these claims had been presented out of time by one day when it had been reasonably practicable for the Claimant to have presented them in time and thus the ET did not have jurisdiction to consider them. The discrimination complaints in case no. 2201995/2011 were, however, permitted to proceed to a Full Hearing, at which any jurisdictional points could be taken including whether it would be just and equitable to extend time for the lodging of those complaints. The ET's decision in this regard was sent to the parties on 1 January 2012. The hearing of the discrimination complaints is yet to take place.

1. The Claimant sought to appeal these further Judgments of the ET. Her two proposed appeals in this regard also came before the EAT at the Rule 3(10) Hearing on 26 March 2014. At that hearing the Claimant had the benefit of pro bono representation by counsel acting under ELAAS. As a result of the oral argument made on the Claimant's behalf, the EAT was persuaded that the appeal against the strike-out of her claims (in cases 2201995/2011 and 2201990/2011) should be permitted to proceed on the following bases:

(1) It was perverse of the ET to find that it was reasonably practicable for the Claimant to present her claims in time; alternatively, the ET erred in failing to take into account material considerations and/or failed to give adequate reasons. Specifically the error made by the Claimant was one she had made in her earlier claim (relying - on the Claimant's case - on advice she had been given by a member of the ET staff), which had been permitted to proceed. The inconsistency in approach in these two matters was a material factor that the ET ought properly to have taken into account and/or given adequate reasons as to why it did not consider it relevant. Alternatively it was perverse to reach such an inconsistent finding.

(2) Additionally, the Respondent itself had considered the unfair dismissal claim to have been presented in time and, in all the circumstances (which included the Claimant acting as a litigant in person when English was not her first language), the ET's conclusion to the contrary was unsustainable.

All other grounds of appeal in both appeals were dismissed.

1. HHJ Birtles having thus given permission for the appeal to proceed on the limited bases identified, this matter was listed for a Full Hearing on 26 September 2014. In the event that hearing did not take place, as it was adjourned on the Claimant's application the day before. That was the Claimant's second application for the hearing to be adjourned. She had earlier requested that it be listed for a different date to enable her to obtain representation from counsel who had previously appeared for her under ELAAS but that application had been refused (see EAT order seal dated 9 September 2014 and the reasons given on that occasion).

1. The subsequent application was made on medical grounds and was allowed but with the caveat that the Claimant was to provide full medical evidence making it clear why the postponement was necessary (see EAT order seal dated 25 September 2014). In response to that order the Claimant provided a further copy of a doctor's letter but solely on the condition that it could not be disclosed to the Respondent. The Claimant was given the further opportunity to provide full medical evidence which could be disclosed to the Respondent (see EAT order seal dated 16 January 2015) but she has chosen not to do so.

1. In any event, the hearing of the appeal was listed to come before me on 6 February 2015. The day before, the Claimant again applied for a postponement of the hearing. That application was refused for the reasons accompanying my Order seal dated 5 February 2015.

1. At the hearing on 6 February 2015, the Claimant was initially not in attendance but various telephone communications were had with members of the EAT staff, as recorded in my Judgment given that day. The Claimant, accompanied by her daughter, did attend for the hearing shortly after 11:45am but, for the reasons explained in my Judgment of 6 February 2015, it was not practicable to proceed with the hearing of the appeal. Given that I have adopted the unusual course of ultimately determining this appeal on the papers rather than at a further oral hearing, care should be taken to read my Judgment of 6 February 2015 and my subsequent reasons for declining to review my decision in this regard (see EAT order seal dated 23 March 2015). For convenience, I have annexed these documents to this final Judgment, along with the earlier Orders seal dated 9 September 2014, 25 September 2014, 16 January 2015 and 5 February 2015. In any event, both parties were afforded the opportunity to lodge further submissions in writing for the purposes of the consideration of the appeal on the papers. The Respondent has chosen not to do so. The Claimant has made further written submissions relating to my Judgment of 6 February 2015 and my subsequent decision on her application for review, but not engaging with the points raised by her appeal.

The Claimant's Case

1. I turn, then, to the written submissions on the appeal made in the Claimant's skeleton argument. The first point made is that the ET proceedings in question had been underway for some time before the Respondent raised the jurisdiction point; indeed, it only did so on 22 August 2011, the day before a case management discussion hearing.

1. Secondly, the Claimant explains that she had been advised by "the ET helpline" in respect of claim 2200942/2011, that, by submitting the claim on 8 March 2011, she would be "in time" in respect of a decision taken on 8 December 2011. She says the ET in that case had accepted her evidence that such advice was "probable" and her claim was allowed to proceed: "no one-day out of time argument were never made by the Respondent or the Tribunal".

1. The Claimant had further understood, following advice from the ET staff, that she had until 31 May 2011 to issue her subsequent unfair dismissal and unlawful deductions claims but adopted the same approach as for the earlier claim and thus submitted those claims within the same timeframe as advised for that earlier claim; hence lodging both claims on 28 May 2011. It was wrong and inconsistent for the ET to adopt a different course in this respect in relation to the claims lodged on 28 May. Accepting that there is a high test for any perversity challenge, the ET should have adopted the same approach as in the other case before EJ Walker.

1. The Claimant additionally states that she had been ill in the days following a hearing on 17 May 2011 and had had internet problems on 27 May 2011.

The Respondent's Case

1. The issue of when the jurisdiction point had been raised was not a relevant matter. As EJ Glennie had recognised, the fact that the point might not have been appreciated at an earlier stage would not change the position that the ET was bound to consider the question (see paragraph 8 of the reasoning).

1. To the extent that it was suggested that EJ Glennie should have had regard to the earlier reasoning of the EJ Walker ET, that was plainly wrong as the Walker ET only determined the claims before it in late January, and its Judgment was only sent out to the parties in early February 2012; that is, after the determination of the point on the Pre-Hearing Review now under consideration.

1. In any event it was not a perverse conclusion. On anyone's case the ET1 had been presented one day out of time for these claims. The time issues for the Walker ET, which concerned unlawful deductions from wages/breach of contract claims, were different. The cause of action for those claims crystallised - and, therefore, time began to run - only on the termination of the Claimant's employment; 28 February 2011. The Claimant had lodged her claim with the ET on 8 March 2011. The considerations for the Walker ET were necessarily different to those for the Glennie ET. No issue arose from the different conclusions reached.

1. EJ Glennie had proper regard to the facts of the case. Those included the Claimant's evidence as to her mistaken belief that she had until 28 May 2011 to present her claim; the fact that she was acting in person; the advice she said she had received; her language difficulties and so on. He also had regard to the relevant statutory provisions and case-law. He made findings of fact that were entirely open to him on the evidence adduced, which included the finding that, in her conversation with a member of the ET staff:

"18. … [the Claimant] specified the end of February as being the date at which her employment came to an end and got [an] answer along the lines that in that case the deadline would expire at the end of May … nothing more specific than that."

1. The relevant statutory provisions are contained in section 23 and section 111 of the Employment Rights Act 1996. Section 23 relates to claims for unlawful deductions from wages and provides as follows:

"(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with –

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from when the deduction was made, or

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

…

(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable."

1. Section 111 relates to the bringing of an unfair dismissal claim and relevantly provides:

"(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

1. Time limits in unfair dismissal claims and wrongful deduction claims before the ET raise questions of jurisdiction, not process. They are mandatory. To use the statutory language, "An Employment Tribunal shall not consider a complaint …". Jurisdiction cannot be conferred by the agreement of the parties or by waiver or estoppel; it is, further, a matter that can be raised at any time (Radakovits v Abbey National plc [2009] EWCA Civ 1346). Where a litigant is aware of the right to make a claim, that puts them on enquiry. Where that litigant then makes an error in presenting their claim out of time due to a mistaken belief as regards the applicable time limit, the question is whether the mistaken belief itself was reasonably held (per Brandon LJ in Walls Meat Co Ltd v Khan [1979] ICR 52, CA, at paragraph 60).

1. The relevant facts cannot now be in dispute. The Claimant was dismissed on 28 February 2011. The claims that are the subject of consideration on this appeal were required to be lodged on or before 27 May 2011. In fact the Claimant lodged her claims the following day - 28 May 2011 - one day out of time. The reason she did so, on the ET's findings, was because of her own mistaken belief that she had until 28 May 2011 to put in her claim.

1. The Claimant said that her mistaken belief was based on advice given to her by members of the ET staff. That, however, was a contention considered by EJ Glennie, having heard the Claimant's evidence on this point. His finding of fact does not permit of such certainty in terms of the advice the Claimant may have been given. He found the Claimant got a not entirely specific answer to a not entirely specific question (paragraph 18):

"I find it probable that what happened is that Dr Koudriachova specified the end of February as being the date at which her employment came to an end and got [an] answer along the lines that in that case the deadline would expire at the end of May and I think it likely that what was said was in fact nothing more specific than that."

1. The question then was whether the Claimant's mistaken belief itself was reasonably held. The ET took the view it was not: the onus was on the Claimant to obtain specific advice or clarification; she did not do so. That may be because, when she contacted the ET office, she interrupted or spoke over or did not properly listen to what was being said to her. It may be because she never asked the question with sufficient particularity (see the findings at paragraphs 17 to 18 of the ET Reasons). Either way, the implication of the ET's conclusions is that the Claimant's belief was not reasonably held. Indeed the Employment Judge's finding was rather stronger than that. His conclusion was that it was the Claimant's own mistaken belief that had led her to lodge her claims on 28 May (see paragraph 29), that belief being derived from her view that "a month is a month" and:

"… 28 February was the last day of the month, 31 March was the last day of the next month, and so on so that one reached 31 May as the last day of the third month after 28 February." (See the recitation of the Claimant's evidence at paragraph 16 of the ET Reasons).

The ET's conclusion was thus entirely permissible on the evidence before it and the findings of fact it made.

1. The only point that would then arise was the point on which this appeal has been permitted to proceed to a Full Hearing, namely whether the Employment Judge failed to have regard to a different approach to this point by another ET. Putting to one side the fact that different ETs may reach different conclusions on the same facts (that, after all, is what judicial discretion is all about), I can see that, in some cases, a different view formed by another ET might give rise to a material factor that should be taken into account.

1. Here, however, the view of the other ET relied on was not available to EJ Glennie in any event. The Walker ET Judgment and Reasons were not sent out until after EJ Glennie had reached his decision. Perhaps it could be said that the Walker ET erred in not having regard to EJ Glennie's decision. It certainly cannot properly said, however, that EJ Glennie erred in law in not having regard to a decision that had not been made, let alone sent to the parties, at the relevant time.

1. In any event the two ETs were answering different questions. The Walker ET was concerned with an unlawful deductions or breach of contract claim. The cause of action, in either event crystallised (on the ET's view), only at the end of the Claimant's employment; 28 February 2011. She then had three months to lodge her claims. She did so well within that period, on 8 March 2011; so the issue did not arise. The Walker ET did not have to make a finding as to the fact and/or reasonableness of the Claimant's mistaken belief.

1. For completeness, I have also considered whether it might be said that the ET reached a perverse conclusion on the question whether the point had not been spotted by the Respondent or the ET itself at an earlier stage. In my judgment, however, the ET was entirely correct in its approach to this question (see paragraph 8). The timing was not the relevant question. This was a jurisdictional point and could be taken at any time (Radakovits).

1. As for the other matters raised by the Claimant, relating to her health in mid-May and/or her IT difficulties, these are not matters permitted to proceed to the Full Hearing of the appeal. In any event they were duly considered on the evidence and rejected by the ET as irrelevant to the question why the claim had been presented out of time (see paragraphs 22 to 24).

1. Having considered all the matters that have been put before me on this appeal, I am satisfied that the ET here adopted the correct approach and reached a conclusion that was entirely open to it. No error of law is disclosed, and I duly dismiss the appeal.