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Appeal No. UKEAT/0104/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 May 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR S LEZO (APPELLANT)

**

OCS GROUP UK LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR BEN GLASSMAN (Appearing under the Free Representation Unit)
6th Floor
289-293 High Holborn
London
WC1V 7HZ

For the Respondent MR DAVID FLOOD (of Counsel)
Instructed by:
Weightmans LLP
India Building
Water Street
Liverpool
L2 0XG

JURISDICTIONAL POINTS – Extension of time: reasonably practicable

It was not reasonably practicable for the Claimant to present his unfair dismissal claim in 3 months. But by waiting a further 11 days he went beyond a reasonable period: Employment Rights Act 1996 s111(2). The authorities on "reasonably practicable" for primary limitation, and fault of advisers, were applicable to deciding what was a further reasonable period: Northumberland County Council v Thomson UKEAT/0209/07. The Employment Judge decision was upheld.

1. This case is about the time limit for presenting a claim of unfair dismissal to an Employment Tribunal. I will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Claimant in those proceedings against the Judgment of Employment Judge Salter, sitting alone at a PHR at London (South), for which Reasons were sent to the parties 8 December 2009. The Claimant was represented by Mr Ben Glassman, giving his services under FRU; the Respondent by its HR Manager and today by Mr David Flood of counsel.

1. The issue was whether the claim had been presented within three months, or within the extension which is allowed when a claim could not reasonably practicably have been presented. The Judge decided in favour of the Claimant on the first part, but held that an ureasonable period of time had elapsed before the claim was presented. The only issue before me is the latter, an attempted cross appeal having been dealt with procedurally.

1. By s111 of the Employment Rights Act 1996:

"111 (2) … 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. It is common ground that the Claimant's effective date of termination (EDT) is 26 January 2009. He had received a letter dated 30 January 2009 which is slightly misleading, for it is as follows:

"… this letter is confirmation that notice of our intention to terminate your employment has been activated. This notice commenced on 26 January 2009 and will end on Friday 6 February 2009. Therefore your employment with the company will be terminated from 6 February 2009. Given the length of time that the Company has searched for an alternative position, you will not remain employed through your notice period. Therefore, arrangements will be made for you to receive an appropriate payment in lieu of the 2 weeks notice which remains outstanding and therefore your termination date will be 26 January 2009."

1. The Claimant unsuccessfully appealed his dismissal. In March 2009 he visited the CAB. The CAB contacted Surrey Law Centre (SLC) who agreed to present the claim but were not able to make an appointment. The Claimant was assiduous in checking on the progress of his case. A reminder was sent by the CAB to SLC indicating that in the CAB's view the deadline was 5 May 2009. On 8 April 2009 SLC contacted the Claimant and said that an appointment would be made as soon as they were able to do so. On 21 April 2009 this adviser at SLC contacted the Claimant and they agreed an appointment for 27 April 2009. She notified the CAB that the claim would be presented before the deadline of 6 May 2009.

1. With the now agreed EDT of 26 January 2009 the deadline was 25 April 2009. It came and went. A meeting took place on 27 April 2009. The Claimant presented all relevant documentation but the adviser did not read it at the meeting. On 6 May 2009 at 23:56 the claim was presented. Having applied the correct authorities, the Judge decided that it was not reasonably practicable for the claim to be presented by 25 April 2009 to which there is no challenge by the Respondent. He then turned to the succeeding period to 6 May 2009.

1. It is common ground before me that the indulgence in respect of the first limitation period extends to 27 April 2009. There is continuity of thinking that it was not reasonably practicable to present the claim before 25 April 2009 and, for that matter, before 27 April 2009 when the meeting took place. But thereafter Mr Flood accepts that time begins to run. In fact, the issue for the Judge was whether to admit the claim 11 days out of time.

1. The Judge decided that it was not a reasonable period of time:

"The Tribunal then considered whether time should be extended to 6 May 2009. The SLC had the papers on 27 April 2009. The SLC were, at least initially, working on the basis that they had until 5 May 2009 to present the ET1. The SLC were reminded on 5 May 2009 (by the CAB) that it was the last day for presenting the ET1. It was clear from the dismissal letter, however, that the ET1 had to be presented by 25 April 2009. Once the dismissal letter was read by the SLC it was apparent that the ET1 was overdue. Time was not extended by virtue of any grievance that the Claimant had presented. Thereafter it was incumbent upon the SLC to present the ET1 as soon as possible. By the 27 April 2009 the SLC had all the information it needed to complete and present the ET1. But either the SLC did not read the papers until some time after 27 April 2009 or did so and ignored the deadline or misunderstood the operation of the extension of time limits contained in the Dispute Resolution Regulations. Whatever may have been the cause of the delay from 27 April 2009 to 6 May 2009 no reason for it is advanced and there is no evidence as to the reasons for the delay. As far as the Tribunal is concerned the delay was unreasonable. SLC were by then entrusted with the responsibility of presenting the ET1 and should, on 27 April 2009, have established that the ET1 was overdue and taken immediate steps to present it. They did not do so and the delay was unreasonable."

1. The Judge uses the correct formulation twice; the delay was unreasonable. It is also clear that he uses the formulation which is criticised on appeal as introducing a higher test, that is that the claim should have been submitted as soon as possible or immediately.

1. The difficulty for the Claimant is that he accepts the correctness of the Judge's approach to reasonable practicability for he was successful in meeting the test in the first part of section 111(2)(b), and yet says that the Judge approached the second part of the subsection wrongly.

1. As well as the passages which I have cited above the Reserved Judgment itself contains the correct formulation, not presented within a reasonable period. The Reasons at paragraph 1 include whether it is reasonable to extend time and the Judge sets out with only one slight error, as to which there is no material criticism, the correct test in section 111(1) and (2) by citing the section itself.

1. The Judge addressed the authorities including Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA on reasonable practicability. The question there was to ask whether the Claimant or his advisers were at fault in allowing the time period to pass without presenting the claim. Thus, both Mr Glassman and Mr Flood agree that the correct approach to dealing with the reasonable practicability aspect of section 111(2) is to link together the adviser and the Claimant. Generally speaking, but not in every case (see Marks & Spencer PLC v Williams-Ryan [2005] IRLR 562), the acts and knowledge of the adviser will affect the decision in relation to the Claimant's out of time claim.

1. No authority was put before the Judge as to the meaning of the second part: how is the Tribunal to determine what is reasonable? In Northumberland County Council v Thomson UKEAT/0209/07 Silber J equated both parts of the subsection on the basis that both parts used the term reasonable and the approach to the second part would be the same as to the first, save that the ingredient of practicability is absent. He said this:

"14. Thus, an Employment Tribunal considering and applying these eight words should follow the approach on "reasonable practicability," on dealing with the reasonableness aspect (rather than the "practicable" aspect) of that definition. This exercise entails an investigation of: what the employee knew and what knowledge the employee should have had if he or she had acted reasonably in all the circumstances while ignoring the practicability aspect of that definition. In Marks & Spencer v William Ryan [2005] IRLR 562, (which was referred to by the Employment Tribunal in the present case), Lord Phillips MR in a judgment with which Latham and Keene LJJ agreed, explained at paragraph 21 (with my underlining added) that:

"..it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an Employment Tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had ….he or she acted reasonably in all the circumstances."

15. It is noteworthy that the Master of the Rolls refers to the requirement that it is necessary for these matters to be considered. The decided cases require the Employment Tribunal considering whether it has been "reasonably practicable" for an employee to have brought proceedings within the three-month period to focus on and then to reach conclusions on the state of mind of the employees. Indeed, in London International College Limited v Sen [1993] IRLR 333, Sir Thomas Bingham MR explained (with my underlining added) in a judgment with which McCowan and Hirst LJJ agreed on the approach which should be adopted to whether it had been "reasonably practicable" to present a claim within the prescribed three month period when he said that:

"16…it would seem to me irrelevant whether or not the complainant had consulted a solicitor. That would seem to me to be a possible approach to the language of the section but it is one which previous authority has firmly rejected and such authority has concentrated on the state of mind of the prospective complainant and the extent to which he understood that position."

16. It is settled law that the Employment Tribunal must make a fact sensitive decision relating to the particular employee and that there is no rule that a particular period is invariably or usually reasonable and another period is invariably or usually unreasonable..."

1. In the passage I have cited there is no reference to advisers and in the Northumberland case there was an adviser. Mr Glassman submits that at all times for the purposes of the second limitation period, it is the conduct and knowledge of the Claimant which controls the exercise of the discretion. Mr Flood contends that in the light of the undisturbed findings about reasonably practicable, not just the Claimant, but also his advisers are incorporated for the purposes of primary and secondary limitation periods. I agree with that submission.

1. Mr Flood submits that Silber J's case is not specifically focussed and helpful on the point, but in my judgment Silber J was not setting aside the stream of authorities stemming from Dedman which deal with the relationship between the fault of an adviser and the Claimant's own position. Although Silber J focuses entirely upon what the Claimant's knowledge was I hold that the approach to advisers in the first part of section 111(2) applies in the second. So, I reject the submission that one only has to look at the Claimant. The Claimant here is blameless but his advisers plainly did not act in the way they should.

1. The letter of dismissal does open up the possibility of an EDT on 6 February 2009. I put it no higher than that but that is the construction given by the CAB because, thereafter, they advised SLC that the presentation of the claim must be done on 5 May 2009. That is correct if the EDT was 6 February 2009. At one stage it looked as though the SLC adviser was operating on the basis that she had until the end of 6 May 2009 and scrambled to put the form in electronically just before midnight. Even so, on the construction of the EDT as 6 February 2009, it would have been a day late.

1. The better view is that, as the Judge found, once the documentation had been checked by the adviser, the EDT was 26 January 2009. So, from that time she was aware that she was outside the primary limitation period. The Judge focussed upon what explanation might be forthcoming for the delay between 27 April and 6 May 2009. There was none. If explanations had been put, for example, pressures of a busy law centre during the recession - an issue which attracted HHJ Richardson when he gave directions for this case to be heard at a full hearing - that might have weighed with the Judge. There was simply nothing to explain the period between 27 April and 6 May 2009.

1. The Judge gave his own construction as to what had happened, but in each of those scenarios time was running. As Mr Glassman points out, the Judge twice uses the phrase "as soon as possible" which does not appear in the statute, but I reject the contention that he was misdirecting himself. He had, after all, on four occasions used the correct formula, including citing the statute itself. An infelicity of language in part of a Judgment, where otherwise the directions are correct, does not vitiate the Judgment (see Jones v Mid-Glamorgan County Council [1997] IRLR 685 CA).

1. Indeed, I think the Judge was simply reflecting on what a solicitor ought to do knowing that the primary time limit has already gone. What she thought was she could rely on regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, but that was not available to her. That might give some insight into why she did not act promptly on 27 April 2009 because the effect of regulation 15 would give her a further three months to present the claim from 25 (or 27) April 2009. As she was reporting to the Claimant, her reliance on that regulation explains why she did not move as quickly as she should.

1. The real issue is whether the Judge made an error of law in deciding that the period of time from 25 (or 27) April to 6 May 2009 was an unreasonable period. That is fact sensitive and I see no justification for interfering with it. HHJ Richardson considered this judgment was harsh. In the absence of any explanation for that delay the Judge could not be said to be plainly wrong in deciding as he did; another Judge may have been more indulgent, and certainly this Judge might have been had he been given an explanation.

1. I thank Mr Glassman and Mr Flood for their helpful submissions. The appeal is dismissed.