Appeal No. UKEAT/0182/08/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 January 2010

Before

HIS HONOUR JUDGE REID QC (SITTING ALONE)

MS N MEHTA (APPELLANT)

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARINGEY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS N MEHTA (The Appellant in Person)

For the Respondent
MR J DAVIES (of Counsel)

Instructed by:
London Borough of Haringey Corporate Legal Services
Alexandra House
10 Station Road
Wood Green
London
N22 7TR

JURISDICTIONAL POINTS

Extension of Time: Reasonably Practicable

Extension of time: Just and Equitable

Employment Tribunal refused to extend time for unfair dismissal claim and for sex and race discrimination claims. Held: no error of law. Appeal dismissed.

1. This is an appeal from a decision on review by an Employment Tribunal (Miss Lewzey sitting alone) on 22 March 2007 and then an attempt to review that on 4 July 2007. The matter under review was a decision that Miss Lewzey had previously made that there was no reason to extend the time within which the Claimant could make her claims for unfair dismissal and for race and sex discrimination claims against her former employers the London Borough of Haringey.

1. So far as the factual position is concerned, the Appellant had been employed by the Borough for a considerable number of years but on 27 May 2004 she was told that her employment was being terminated on the grounds of redundancy. The notice period was said to be:

"Your notice period, which will incorporate 9 of your 12 weeks notice, will commence with effect from 30th May 2004 and your last day of service will be 31st July 2004. The remaining three weeks notice will be paid to you in lieu."

The letter then went on to add:

"Efforts to redeploy you into suitable alternative employment will continue until your last day of service and should a suitable position be found and accepted prior to 31st July 2004, this notification will no longer be applicable."

The letter was sent with a copy which had at the end of it, to be signed by the Appellant, this note:

"I hereby acknowledge receipt of the original letter dated 27th May 2004 terminating my employment on the grounds of redundancy on 31st July 2004."

The three-month period, therefore for her bringing her proceedings expired on 31 October 2004.

1. Miss Mehta, the Appellant, sought to argue that the time for bringing the unfair dismissal proceedings (based on the proposition that was no genuine redundancy situation, as I understand the basis of that claim) should be extended because it was not reasonably practicable for her to bring those proceedings within the time limit.

1. So far as her discrimination claim was concerned, she asserted that time in relation to that should be extended because it was just and equitable to do so. The reason she needed to make those assertions was that she did not launch her proceedings until 8 November 2004. At earlier stages she has argued that, in fact, her employment did not determine until 20 August 2004, so she was in time, but that point has been concluded against her in the Employment Appeal Tribunal.

1. In dealing with the question as to whether or not there should be an extension of time, the Tribunal found as a fact that Miss Mehta had discussed the matter with her union on 29 July 2004. She found that Miss Mehta did not show the correspondence to her advisor but told the advisor of its contents and that later on when Miss Mehta had a telephone conversation with ACAS, which included obtaining advice, in October 2004 the same situation applied. There are therefore findings of fact that the letter by which she was dismissed, to which I have already referred, was not shown to either of those parties. Miss Mehta's argument was that she genuinely believed and was advised by those two bodies that the date of termination should be taken as being 20 August 2004 and hence even if she was wrong about that that was a reason for extending time.

1. The second limb of her complaint was that she completed an ET1 application form and on 28 October 2004 took it to the Citizens Advice Bureau where she was told that a new form was now required which the CAB could not download from the Employment Tribunal Service's website. That, of course, was inaccurate because the new form did not become mandatory until a number of months later but Miss Mehta says that she was put off by this and therefore telephoned the Employment Tribunal office which posted her a new form. The new form, she says, did not arrive with her until 4 November 2004. She says that she could not obtain guidance from the internet because she was unwell and she says that she obtained guidance from her brother who obtained it from the local library. This was either late on 4 November 2004 or early on 5 November 2004. She, in fact, faxed the completed form to the Tribunal on 8 November 2004. She gave no reason as to why the fax could not have been sent on 5 November 2004 or over the weekend. The form was therefore presented on 8 November 2004, nine days out of time.

1. The test, as the Employment Tribunal rightly said, insofar as the unfair dismissal was concerned was whether it was reasonably practicable for a claim to be presented within the three-month time limit. It was clear from correspondence which Miss Mehta had (indeed back in July 2004 she was threatening proceedings) that she had a clear knowledge of her right to bring proceedings. Also she had had advice from her union in July 2004 and had spoken to ACAS in October 2004.

1. In those circumstances, looking at the picture as a whole, there is no arguable basis for saying that the Tribunal was wrong as a matter of law when it held that it could not say that it was not reasonably practicable for Miss Mehta to launch her unfair dismissal proceedings within the time limit.

1. The Tribunal went on to deal with the question of the discrimination claims, both sex and race discrimination were pleaded, and rightly stated at paragraph 19 of the Decision that the Tribunal had to consider whether it was just and equitable to extend the time limit, pointing out that the much the same factors apply. What the Tribunal did not do was go to the analogy of section 33 of the Limitation Act and I was referred, as indeed Elias J who gave permission for this appeal to go forward on very limited grounds was referred, to British Coal Corporation v Keeble.

1. I bear in mind that what one looks at is the substance of the matter As Peter Gibson LJ pointed out in London Borough of Southwark v Afolabi [2003] ICR 800 at paragraph 33 the Employment Tribunal does not necessarily err because it does not go through the matters listed in section 33(3) of the Limitation Act. Peter Gibson LJ went on:

"Whilst I do not doubt the utility of considering such a checklist (or that in CPR 3.9(1)) in many cases, I do not think it can be elevated into a requirement on the Employment Tribunal to go through such a list in every case, provided of course that no significant factor has been left out of account by the Employment Tribunal in exercising its discretion."

1. The Tribunal, of course, when it does exercise its discretion, is exercising a discretion by way of exception rather than the rule and it has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider everything that is relevant but as was pointed out by the Court of Appeal (per Auld LJ) in Robertson v Bexley Community Centre [2003] EWCA Civ 576, in particular at paragraphs 23 to 25:

"It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view."

1. Against that background, what is really said is the Tribunal was wrong in its conclusion and it is, I think, worth looking at what Elias J said when he was giving permission for this appeal to proceed on limited grounds. At paragraph 6 of his Decision he said:

"He [Counsel appearing for Miss Mehta] does then submit she [Miss Lewzey, the Employment Judge] failed properly to take into account the criteria in the British Coal Corporation v Keeble [1997] IRLR 336 case and to analyse those criteria properly and also confused the reasonably practicable test and the just and equitable test in the way in which she approached the question of extension. I think there is a proper basis to argue the appeal on that point."

He then went on and at paragraph 11 under the heading Discussions and Conclusion said this:

"11. The test for extending time in unfair dismissal cases is, of course, much stricter than that for discrimination, but there is one matter which I think the case can properly go to a full hearing though I have emphasised that she will not necessarily succeed on this. (This ground can apply also to the just and equitable extension discrimination.) The ground is this.

12. It is plain from her witness statement to the Tribunal that it was very much a part of her case that although the effective date of termination has in fact been found to be 31 July 2004 that was not her understanding. She had acted on the basis, because of a letter I think she had received from the employers, that the date of termination was going to be later than that and that it was when the notice would have come to an end rather than the dismissal operating as a summary dismissal. There seems to be no reference to that in the decision of the Tribunal and it may be that it can be said that the issue ought to have been addressed specifically by the judges when reaching that conclusion."

He then went on to say that upon those limited grounds the matter should proceed.

1. In my judgment there is no confusion in the mind of the Employment Judge. The Employment Judge quite clearly saw and distinguished the differences. In relation to the unfair dismissal claim she specifically said:

"Dealing first with the complaint of unfair dismissal, the test is whether it was reasonably practicable for the claim to be presented within the three month time limits."

On the discrimination claims at paragraph 19 she said:

"The next matter is the claim of sex discrimination and race discrimination. In these cases the test is different. I have to consider whether it is just and equitable to extend the time limit. Again, some of the factors are the same."

Clearly the Employment Judge was drawing a distinction.

1. The then President seems to have been concerned of the possibility that there might have been a letter which gave the impression that the employment did not determine on 31 July 2004 but having looked at the letter of dismissal and indeed having looked, among other things, at Miss Mehta's letter of 26 July 2004, it is perfectly clear that Miss Mehta was fully aware that her employment was terminated on the grounds of redundancy on 31 July 2004. Indeed, at the earlier review hearing which was then reviewed itself, Miss Lewzey made an express finding of fact. It seems to me that if Elias J was left with the impression that there was a letter which indicated that her dismissal operated at a later date than 31 July 2004 he was under a misapprehension.

1. The question then is did the Tribunal which, as I have indicated, did not refer specifically to British Coal Corporation v Keeble look at all the material matters? It was suggested in the course of argument that the Tribunal had suggested that had Miss Mehta presented her application on 7 November 2004, time would have been extended. There is certainly nothing in the judgment of the Tribunal which supports that. The Tribunal took the view that because of the confusion in relation to forms it would have been prepared to extend time until 5 November 2004 but not beyond that. It pointed out there was no good reason why the claim form was not faxed on 5 November 2004.

1. Going through the factors which the Tribunal took into account, it noted that Miss Mehta had advice from UNISON before 31 July 2004 and had spoken to ACAS in October 2004. It noted there was said to be difficulty with the form and noted that there was said to be some delay because of a pending appeal which was pending as at 31 July 2004 against a final written warning which Miss Mehta had received. She noted that there was no reference to illness or anything which would have prevented Miss Mehta from presenting her claim form and that there was no medical evidence that Miss Mehta was unwell at the end of October 2004 or the beginning of November 2004 or anything else that prevented her from presenting her form.

1. Dealing with the employment case, she took account of those factors and said that in the circumstances she was not going to revoke her earlier decision that it was reasonably practicable to present the unfair dismissal claim within the three-month time limit. So far as that is concerned it seems to me, not only that that was a decision with which this Tribunal could not interfere, but that it was a decision which was quite plainly right.

1. Then dealing with the sex and race discrimination claim, the Tribunal correctly stated that it had to consider whether it is just and equitable to extend the time limit and noted that some of the facts are the same. It noted that the claim form only mentions the appeal and difficulty in obtaining the claim form and the Tribunal found as a fact that she could have presented her claim at a much earlier date and could have done it on the original form. It is to be noted that the discrimination matters go back over a very considerable number of years.

1. The Tribunal went on to find as a fact that Miss Mehta did not show the letter of 28 July 2004, which clearly states the last day of service was 31 July 2004, to either UNISON or ACAS or the CAB and she asserts she merely told them the content of the letter. There is, of course, also the letter of 27 May 2004 which is absolutely explicit in its terms. The letter of 28 July 2004 is, it seems to me, equally explicit saying as it does:

"I must advise you that whilst acknowledging that you have registered a number of concerns regarding your employment position that management are not prepared at this point to vary your last day of service which remains as 31st July 2004. I must confirm to you therefore that from that date you will no longer be an employee of the Council."

It is difficult to see what there was that could be clearer.

1. The Chairman notes the defect on the part of the Citizens Advice Bureau but also notes that Miss Mehta had considered legal proceedings as far back as 26 July 2004 and the only reasons that she gave in the claim form for her delay were difficulties with the ET1 form and her internal employment appeal. She notes that the form could have been presented at the very latest by 5 November 2004.

1. It is true that there is no specific statement as to the length of delay but it is clear that the Tribunal had the dates well in mind and therefore necessarily the length of delay. The reasons for delay as expressed at that stage are also carefully dealt with. There is a reference to the fact that there are matters here which go back a long period of time. This is not a case in which there is any suggestion of a need for information before proceedings could be launched. It is not a case in which there is a suggestion there was anything that came to the notice of Miss Mehta at a later stage after which she acted promptly. It is a case in which it is clear that she knew full well that she could make a claim.

1. In those circumstances it seems to me that the Tribunal effectively covered all bases. It is true that it did not do so by specific reference to British Coal Corporation v Keeble but as is pointed out in London Borough of Southwark v Afolabi there is no mandatory requirement that one should run through any particular checklist. The question is did the Tribunal leave out of account anything put before it which was material and which it should have taken into account? In my judgment, there is no basis on which that could properly be said to be the case. The matter which specifically concerned Elias J appears to have arisen out of a misunderstanding about what letters there were and what those letters said.

1. The question then is could it be said that the decision not to extend time on grounds that it was just and equitable was one which the Tribunal could not reasonably have taken, bearing in mind the wide ambit of judicial discretion and bearing in mind what was said in Robertson v Bexley Community Centre about this being an exception rather than the rule and by the onus being firmly on the Appellant.

1. It may well be that many will think that this was a harsh decision not to extend time, effectively over a weekend, but it seems to me this was a decision in all the circumstances of the case, and given in particular that Miss Mehta had been threatening litigation before her employment ever in fact came to an end, which was within the broad ambit of what the Tribunal was entitled to conclude.

1. It is not for me to say whether I would have reached the same conclusion if I had been sitting as the Tribunal at first instance. The question for me is whether the decision which was reached by the Tribunal was flawed in law. It seems to me that the Tribunal applied the appropriate tests in law. I have not been shown any material factor which was before the Tribunal and which it failed to take properly into account.

1. In those circumstances, I cannot see any basis on which this appeal could properly be allowed and I therefore propose to dismiss the appeal.

1. This is an application for costs of a previous adjourned hearing. By his order on 18 November, HHJ Birtles ordered that the hearing of the appeal be adjourned until 4 December. In fact, that day then went and it then came back before me rather than before Judge Birtles. Secondly, he ordered no further documents would be permitted for the hearing of the appeal without the express written order of Judge Birtles and any applications lodged on the documents be made within 14 days. That issue has already raised its head and been disposed of. Thirdly, he required the provision of a medical report and that I have heard no more about. Fourthly, he indicated costs reserved to himself to be raised as to the issue at the hearing on 4 December.

1. By a subsequent letter he then indicated that whoever dealt with the matter today, i.e. me, should deal with the costs. One of the major problems in this case which relates to a dismissal which took effect on 31 July 2004, so it is now some 5½ years ago, has been the constant delays very largely at the hands of the Appellant. For example, even in relation to today's hearing there was an application to adjourn. There were previous applications to adjourn before the hearing before Judge Birtles and indeed one of those was, I think, partially successful and indeed was then the application which resulted in the matter not proceeding before Judge Birtles on 4 December.

1. The Appellant has had an enormous amount of time in which to produce a skeleton argument. A document which is a cobbling together of a variety of bits and pieces of considerable length and no, or no noticeable, relevance to the issues in the appeal was produced.

1. The hearing before Judge Birtles was adjourned, it seems to me, for a number of reasons: firstly, because of his concern, and indeed every one else's concern, about Miss Mehta's state of health although she had not provided any medical evidence, secondly, because of her attempt to introduce a substantial new bundle of documents which was, as far as one can tell, something of a shambles with no pagination and the like and, thirdly, because of the absence of any skeleton argument.

1. In particular in relation to the last there is a specific part in the Employment Appeal Tribunal Practice Directions which deals with skeleton arguments and which indicates that the failure to follow the procedure may lead to an adjournment of an appeal or to dismissal for non-compliance and to an award of costs.

1. I am satisfied that at least part of the reason why the matter had to be adjourned by Judge Birtles was the absence of a proper skeleton argument. Had there been a proper skeleton argument, problems about documents would have been effectively obviated and no doubt the stress on Miss Mehta would have been substantially less and she might very well have been able to continue or thought able by those others around, since there was no medical certificate, to continue.

1. I take the view that all in all over the conduct of this appeal she has indicated a more or less complete disregard for the Rules of the Tribunal. She has sought to do precisely what she wished irrespective of any order that might be made by the Tribunal. I see no reason why yet more costs should be heaped on the Borough of Haringey as a result of her failure to comply with the direction. I take the view that the costs of the hearing before Judge Birtles can properly be said to have been thrown away.

1. I can also properly say that that is in large measure due to the failure to comply with the directions in relation to skeleton arguments and that the appropriate method of dealing with that, given that Miss Mehta has not seen fit to put in any evidence about her means, is by making an order that she should pay Counsel's fee for that occasion. I do not include the VAT in that because that would wash in the hands of the local authority.

1. I therefore make an order that she pay £900 costs within 21 days.

1. So far as costs are concerned, costs are very largely a matter of discretion and I cannot see any reason in law in relation to allowing an appeal against costs. I therefore refuse permission to appeal in relation to costs. I note there is no application for any other permission to appeal.