The claimant was complaining of unfair dismissal from his employment based in England. He and his mother found the website of the Office of the Industrial Tribunal in Northern Ireland and mistakenly thought that he could make his claim online through this site. His claim form was received 2 days before the 3 month time limit, but the NI Tribunal did not inform the claimant of his mistake until nearly 2 months later. The claimant then quickly submitted his ET1 to the correct Tribunal but by then it was well outside the time limit. The Tribunal allowed his claim to proceed, accepting that the original error was made by the claimant but that the error was substantially compounded by the administrative delay in the NI Tribunal informing him of that error. Given that delay, it was not reasonably practicable for the claimant to have brought the claim within the 3 month time limit. The respondent appealed, claiming that it was reasonably practicable for the claimant to have presented his claim in time because almost all other applicants managed to do so. There was no reason to suppose the NI website was unfit for purpose. It was wrong to take into account the delay from the NI Tribunal as the claim was presented to them very shortly before the 3 month time limit and even if they had responded immediately his claim would still have been out of time. The true analogy was with an applicant who had posted his claim form to the wrong address, in which case the mistake would not be excusable.

The EAT found that the ET made only limited findings as to precisely what mistake the claimant had made and there was no express finding as to whether the mistake was reasonable. The ET findings were inadequate to deal with the questions as to whether it was reasonably practicable to bring the claim in time, and therefore the Employment Judge’s reasoning could not stand.

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Appeal No. UKEAT/0395/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 January 2011

Before

HIS HONOUR JUDGE RICHARDSON

(SITTING ALONE)

SOLUS (LONDON) LTD (APPELLANT)

MR T MATTHEWS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SEBASTIAN NAUGHTON (of Counsel)
Instructed by:
Messrs Mills & Reeve LLP Solicitors
1 St James Court
Whitefriars
Norwich
NR3 1RU

For the Respondent
MR ABOU KAMARA (Representative)
(Free Representation Unit)

JURISDICTIONAL POINTS - Extension of time: reasonably practicable

The Claimant presented his unfair dismissal claim online just within the time limit – but to the wrong Tribunal (the Northern Ireland Tribunal). After several weeks delay the Northern Ireland Tribunal rejected his claim and he then applied promptly to the Tribunal in England and Wales. The Employment Tribunal erred in law in taking into account the Northern Ireland Tribunal's delay outside the time limit in deciding whether it was reasonably practicable to bring the claim within the time limit; and did not make any sufficient findings on the real issue – viz why the Claimant made this mistake and whether it was reasonable.

1. This is an appeal by Solus (London) Ltd ("Solus") against a judgment of the Employment Tribunal in Bedford (Employment Judge Goodchild sitting alone) dated 16 December 2009. By his judgment the Employment Judge held that Mr Tony Matthews had brought his claim for unfair dismissal in time.

1. Section 111(2) of the Employment Rights Act 1996 was the provision which the Employment Judge had to apply. It provides, so far as material:

" … an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal

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

(b) within such further period as the tribunal consider 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 three months."

1. Mr Matthews was employed by Solus from 16 March 2006 until his dismissal on 2 February 2009. Accordingly the three months period allowed by section 111(2)(a) expired on 1 May 2009 (a Friday). He always considered that he was unfairly dismissed. He appealed; the appeal process was complete by the end of February. He knew he had a right to claim unfair dismissal. But he did not present the claim with which the Bedford Tribunal was concerned until 29 June 2009, well outside the time limit.

1. Put shortly, Mr Matthews had made a mistake. On Wednesday 29 April 2009 he submitted a claim form online to the Office of the Industrial Tribunal and the Fair Employment Tribunal in Northern Ireland. That Office wrote to him on 17 June 2009, informing him that the claim form was rejected because he lived and worked outside Northern Ireland. He then took advice and submitted his claim form to an Employment Tribunal Office in England and Wales, as he always should have done.

1. The Employment Judge heard evidence on oath from Mr Matthews and his mother. His findings of fact are short. I will set them out in full.

"3. The Claimant on realising that his appeal had been dismissed accepts, certainly by the end of February, that there were no other processes available to him internally and that if he was to seek a remedy it would be outside of the company. Towards the end of April but within the three month time limit, he and his mother settled down to fill in an online claim to the Tribunal. They searched for and got the Industrial Tribunal. The Claimant [and his mother a senior manager] in common with even now much of the mass media got our name wrong. The site they got to was the Industrial Tribunals in Northern Ireland. The Claimant filled in the online form, a copy of which I have seen. That form, in common with all judicial forms in this country has the royal crest.

4. The Claimant filled in the form and again made it clear on that form that he had been unfairly dismissed from his employment in England giving his place of work which was not within the jurisdiction of the Northern Irish Tribunal. Clearly the Claimant was in error. One would have reasonably expected any Tribunal to have pointed his error out within days.

5. However although that claim was received on 29th April it was not until much later by a letter dated 17th June and probably received on 18th or 19th June by the Claimant that the Northern Irish office of Industrial Tribunals informed the Claimant of his mistake. The Claimant prior to that date had simply not been aware of his mistake. He immediately sought advice. The Employment Tribunal at Watford most helpful informing him of the proper place to bring a claim and the claim was received by this Tribunal on 29th June within a reasonable time from the time that the mistake was first realised."

1. The Employment Judge recorded the arguments of the parties as follows.

"6. The Arguments

The Respondents put the matter succinctly. He made the original error going to the wrong Tribunal in the wrong jurisdiction. He is out of time. This Tribunal has no jurisdiction.

The Claimant accepts that his was the original error but an understandable one. He had made a claim to the wrong tribunal – which then took 2 months to point out his mistake. It was that delay that put him out of time. It was not reasonably practicable to bring the claim within the time limit because he had good reason to believe he had."

1. The conclusion of the Employment Judge is succinct:

"7. Conclusion

On balance – and it is one of those cases where matters are finely balanced – I allow the Tribunal to have jurisdiction to hear the case. I accept that the original error was made by the Claimant but that error was substantially compounded by the administrative delay in informing him of that error. Given that delay it was not reasonably practicable to bring the claim within the 3 month time limit."

1. On behalf of Solus, Mr Naughton submits that the Employment Judge has not focussed correctly on the question whether it was reasonably practicable for the claim to be presented to the right tribunal within the 3 month period. He submits that the test is strict and objective. If the Employment Judge had applied that test he would inevitably have reached the conclusion that it was reasonably practicable to do so. Almost every other applicant manages to apply to the correct place. There was no reason to suppose that the web sites were unfit for purpose. It was wrong to take into account the delay in the Northern Ireland Tribunal Office; the claim was presented very shortly before the 3 months expired. The true analogy was with an applicant who posted his claim form to the wrong address; his mistake would not be excusable.

1. On behalf of Mr Matthews Mr Kamara submits that the Employment Judge sufficiently addressed the correct question. He submits that, on the authorities, a mistaken belief with regard to essential matters can amount to an impediment making it not reasonably practicable to present a complaint within a period of 3 months. Here the Employment Judge found that there was a mistaken belief – he said that getting the name wrong was a mistake which Mr Matthews and his mother shared with much of the mass media. He said that the form had on it the appropriate royal crest. Moreover the Employment Judge found, and was entitled to find, that the claim was brought within such further time as was reasonable once the mistake was known.

1. Counsel took me in the course of their arguments to some (but happily by no means all) leading authorities on section 111(2)(b): Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520, Porter v Bandridge Ltd [1978] ICR 943, Wall's Meat Co Ltd v Khan [1979] ICR 52, Consignia v Sealy [2002] IRLR 624. I was also referred to Beasley v National Grid [2008] EWCA Civ 742.

1. In my judgment the Employment Judge's short reasons contain an error of law. He has elided two separate questions: (1) whether it was reasonably practicable to present the claim in time; and (2) if not, whether the claim was brought within such further period as the Tribunal considers reasonable.

1. The Employment Judge took into account the administrative delay in Northern Ireland on the question whether it was reasonably practicable for Mr Matthews to present the claim in time. But, as we have seen, the claim was only presented in Northern Ireland on 29 April; and time expired on 1 May. Any administrative delay in Northern Ireland was after the expiry of the time limit and cannot be relevant to the question whether it was reasonably practicable to present the claim in time.

1. The fact that Mr Matthews made a mistake in presenting a claim form to the wrong Tribunal is not necessarily fatal to his claim; but he must show that the mistake was a reasonable one for him to have made. The law sufficiently appears from the following passage in the judgment of Brandon LJ in Wall's Meat Co Ltd v Khan [1979] ICR at 60-61:

"Looking at the matter first without reference to the authorities, I should have thought that the meaning of the expression concerned, in the context in which it is used, was fairly clear. The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.

On this general view of the meaning of the expression under discussion, the present case is an example of a mistaken belief by an employee, reasonably held, constituting an impediment which prevented or inhibited him from presenting his complaint within the period of three months prescribed.

With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.

For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.

While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries.

To that extent, therefore, it may, in general, be easier for a complainant to avail himself of the "escape clause" on the ground that he was reasonably ignorant of his having a right at all, than on the ground that, knowing of the right, he was reasonably ignorant of the method by which, or the time limit within which, he ought to exercise it."

1. There are only limited findings by the Employment Judge as to precisely what mistake Mr Matthews made; and there is no express finding as to whether the mistake was reasonable.

1. It is true the Employment Judge says that Mr Matthews and his mother searched for and got the "Industrial Tribunal" and filled in their form, which had the royal crest. He says this was because Mr Matthews and his mother got the name of the Tribunal wrong, and suggests this was a mistake in common with much of the mass media.

1. This, however, does not seem to me to amount to a full finding as to the mistake Mr Matthews made and whether it was reasonable. On that question, there are arguments either way.

1. On the one hand, it might be said that one would expect the web site for the Northern Ireland tribunals to make it clear that it was indeed the web site for Northern Ireland tribunals. If it did, the question arises whether it was reasonable to submit a claim to that site. One might think that, more than 40 years after they were introduced, most members of the public ought to know or expect that there are tribunals in England and Wales as well as in Northern Ireland; and that there is something odd about a person in England and Wales submitting a claim to a Northern Ireland tribunal.

1. On the other hand, it might be said that Mr Matthews and his mother were reasonable in searching against the words "industrial tribunal"; that it was reasonable to come across the Northern Ireland web site; that the web site cannot have made clear to them (especially bearing in mind that his mother holds a managerial position) that it was only for claims in Northern Ireland; that Northern Ireland is part of the United Kingdom and it is reasonable to suppose that the tribunals would have jurisdiction everywhere; and that the mistake was therefore a reasonable one.

1. It does not seem to me that the Employment Judge's findings or reasoning are adequate to deal with the question whether it was reasonably practicable to bring the claim in time.

1. For these reasons it is plain that the Employment Judge's reasoning cannot stand.

1. The question then arises: how should the appeal be disposed of? Should the matter be remitted, or should I substitute a decision of my own?

1. The classic position is that where a tribunal has made an error of law the Appeal Tribunal should only substitute its own decision where, on a true view of the law, the result is plain; and that if further factual findings are required, or if the central issue is a question of fact which might be decided either way, the matter should be remitted. This classic position has been questioned and may at some stage change; and it is plainly desirable to avoid "ping pong" between the Appeal Tribunal and the Tribunal whenever it is just and fair to do so.

1. As I made plain to counsel, I do not regard this as a case where, on a true view of the law, the result is plain. The question whether it was reasonably practicable to bring the claim in time is very much a question of fact, and there is something to be said on both sides.

1. Mr Naughton, having taken instructions, would be willing for me to substitute my own decision. Mr Matthews, however, had not planned to attend today and Mr Kamara has not been able to take instructions.

1. I have reached the conclusion that even taking a broad view of the Appeal Tribunal's powers I cannot reach a just and fair conclusion today. Mr Matthews and his mother are not available to give evidence or be asked questions. Counsel do not have some of the documents which the Employment Judge saw below – in particular, the Northern Ireland claim form. I consider also that a Tribunal may be assisted by knowing whether the mistake which Mr Matthews made was a rare one or one which is regularly made. On that question I have made and disclosed to counsel a brief enquiry of the Office of the Industrial Tribunal and the Fair Employment Tribunal in Northern Ireland; but there is nothing in any evidential form.

1. In the circumstances the matter will be remitted to the Employment Tribunal to decide. Since it is a short matter and fresh evidence is likely to be heard it seems to me sensible to remit it for hearing before a fresh Tribunal which will start from scratch (so Mr Matthews and his mother should expect to give evidence again).