England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE EATRF 1998/0461/3

IN THE COURT OF APPEAL (CIVIL DIVISION )

Royal Courts of Justice

Strand, London W2A 2LL

Thursday 18th March 1999

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE POTTER

LORD JUSTICE BROOKE

DAVID SCHULTZ Appellant

v.

ESSO PETROLEUM COMPANY LIMITED Respondent

(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR PATRICK BLAKESLEY (instructed by Messrs Sohal & Co, London W3 8PP) appeared on behalf of the Appellant.

MR COLIN WYNTER (instructed by Messrs Lovell White Durrant, London EC1A 2DY) appeared on behalf of the Respondent.

J U D G M E N T

(As approved by the court)

LORD JUSTICE STUART-SMITH: I will ask Lord Justice Potter to give the first judgment.

LORD JUSTICE POTTER: This appeal concerns the interpretation of an application of section 111(2)(b) of the Employment Rights Act 1996 and Article 7C of the Industrial Tribunals Extension of Jurisdiction Order 1994, and in particular the phrase "reasonably practicable" appearing therein.

The appellant appeals against the decision of the Employment Appeal Tribunal ("EAT") which by a majority decision dismissed the appellant's appeal against the decision of the London South Industrial Tribunal ("IT") on 23 July 1997, the chairman sitting alone, that the IT did not have jurisdiction to hear the appellant's complaint of unfair dismissal and breach of contract. As the second tier appellate court our intention is directed to the correctness of the decision of the IT rather than that of the EAT (see Hennessy v. Craigmyle and ACAS [1986] IRLR 300 per Sir John Donaldson at 305.25).

The case is an unusual one. The relevant facts as found by the IT are as follows. The appellant was employed by the respondents (Esso) on 24 January 1977. In August 1994 he became sick with depression and was off work until his dismissal in July 1996. He had improved somewhat in 1995 but remained off sick, and from 21 December 1995 he was unable to leave his house. On 5 March 1996 his wife and a friend instructed solicitors to advise on his employment position and the possibility of a tribunal claim was discussed.

On 15 July 1996 there was a disciplinary hearing at his work, which the appellant did not attend because he was too depressed to do so. Esso accepted written representations made on his behalf but the outcome of the hearing was that he was dismissed, the effective date of termination of his employment being 25 July 1996. On 30 July 1996 his solicitors sent to Esso a letter of appeal prepared by them and signed by the appellant. On 11 September the solicitors wrote explaining that he would submit written representations for his appeal in due course.

In the meantime, at the start of July 1996 the appellant had sent a sick certificate certifying his unfitness for

work and the likelihood this would last for a further period of three months. He was eventually signed fit for work by his general practitioner on 16 February 1997.

In March 1997 his solicitors wrote to Esso so advising them and raising possibility of his return. They asked about the on-going disciplinary proceedings. On 1 March Esso wrote to the solicitors stating that they had concluded that the disciplinary process had come to an end, not having heard from the appellant for a period of three months. On 1 April the solicitors replied stating that if the appeal proceedings were not reinstated an application would be made to the IT. On 10 April Esso replied to the effect that they were not going to reinstate the disciplinary proceedings and the originating application was presented to the IT on 17 April 1997.

The three month period permitted for the presentation of the application had expired on 24 October 1996. In relation to that period the IT found that between 25 July, the date of his dismissal, and 11 September 1996, a period of some seven weeks, the applicant was sufficiently well to give instructions to his solicitors but for the balance of the period of three months, which was some six weeks, he was too ill to do so. Once he became well enough in February 1997 there was a further lapse of some two months before his application was presented.

Section 111(2) of the Employment Rights Act 1996 provides that:

"... an industrial tribunal shall not consider a complaint [of unlawful dismissal] 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."

Article 7 of the Industrial Tribunals Extension of Jurisdiction Order 1994 provides:

"An industrial tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented-

(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable."

The IT decision

Thus the IT had to decide, first, whether it was satisfied that it was not reasonably practicable for the complaint to be presented within three months of the effective date of termination, ie by 24 October 1996; and, if so satisfied, it had to decide whether the complaint was presented within such further period as it considered reasonable.

The chairman's conclusion on those matters were set out in paragraphs 10 to 12 of the IT decision as follows:

"10. I noted that the effective date of termination was 25 July 1996. On 30 July 1996, the solicitors for the Applicant had written an appeal letter on his behalf, presumably as a result of instructions being received from him. Furthermore, the solicitors had written on 11 September 1996, again presumably on his instructions, to the effect that as he was not well enough to attend the disciplinary appeal, the Applicant would be sending in written representations.

11. Thereafter, I accept that the Applicant was no longer sufficiently well enough to give instructions to his Solicitors until February 1997. However, the period between 25 July and 11 September 1996 is a period of some 7-8 weeks, during which it appears that the Applicant was sufficiently well to give instructions to his Solicitors. His Solicitors would, of course, have been aware that the three months' time limit is not stayed pending any appeal against dismissal. It appears to me that in those circumstances during that period it was reasonably practicable for the Applicant to present complaints of unfair dismissal and breach of contract to the Tribunal. In those circumstances, I find that the Tribunal does not have jurisdiction to consider these complaints.

12. If I am wrong on that, then it might be of assistance to set out what my decision would have been with reference to whether or not the proceedings had been presented within a further reasonable period. I have concluded that after the solicitor's letter of 11 September 1996, the Applicant was not sufficiently fit to give them instructions and therefore after that period was not in a position to issue proceedings in the Industrial Tribunal. The unfitness continued until 16 February 1997. Having regard to the fact that he had presumably then arranged to provide further instructions to his Solicitors and wrote to the Respondents on 4 March 1997, and on the fact that the Solicitors sought to pursue and then re-open the Disciplinary Appeal proceedings, until they were told that this was not possible on 10 April and also having regard to the fact that there is no evidence that the Respondents would have been prejudiced by the delay in issuing these proceedings, I would have concluded that the proceedings had been issued within a further reasonable period."

The grounds of appeal in this case are essentially that the decision of the IT was perverse or wrong in law on the following basis. Mr Blakesley for the appellant has relied upon the judgment of Lord Justice May in Palmer and another v. Southend-on-Sea Borough Council [1984] 1 All ER 945 in which, dealing with section 67 of the Employment Protection (Consolidation) Act 1978, the forerunner of section 111 of the 1996 Act, he stated at 384F to 385F, quoting Mr Justice Browne-Wilkinson in Bodha's case [1982] I.C.R. 200 at 204:

" ´The statutory test remains one of practicability. The statutory words still require the industrial tribunal to have regard to what could be done, albeit approaching what is practicable in a common-sense way. The statutory test is not satisfied just because it was reasonable not to do what could be done ... Reasonably practicable means "reasonably capable of being done" not "reasonable".'

If, in this dictum, Browne-Wilkinson J was intending to limit the meaning of the phrase ´reasonably practicable' to that which is reasonably capable physically of being done, then on the authorities to which we have referred this we think would be too restrictive a construction.

... However we think that one can say that to construe the words ´reasonably practicable' as the equivalent of ´reasonable' is to take a view too favourable to the employee. On the other hand ´reasonably practicable' means more than merely what is reasonably capable physically of being done, different, for instance, from its construction in the context of the legislation relating to factories: cf Marshall v. Gotham & Co Ltd [1954] 1 All ER 937... In the context in which the words are used in the [Employment Protection (Consolidation) Act 1978], however ineptly as we think, they mean something between those two. Perhaps to read the word ´practicable' as the equivalent of ´feasible', as Brightman J did in Singh's case and to ask colloquially and untrammelled by too much legal logic, ´Was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?' is the best approach to the correct application of the relevant subsection.

What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie. ... [The industrial tribunal] will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. ... It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisers' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the industrial tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit."

Mr Blakesley also relies on the words of Lord Justice Brandon in the earlier case of Wall's Meat Co v. Khan [1979] I.C.R. 52 at 60F:

"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 a complainant..."

Mr Blakesley acknowledges, indeed he cannot gainsay, that the two decisions from which I have just quoted also emphasise that, in deciding the question of reasonable practicability in any given case, it is very much a matter for the Tribunal applying principles of "practicable common sense" rather than "lawyers' complications"; see per Lord Justice Shaw in Khan at 57D-E and 59E and per Lord Justice May in Palmer at 385A. Thus no appeal will lie unless the Tribunal has misdirected itself in law, or come to a decision which may properly be regarded as perverse.

Mr Blakesley submitted in his skeleton argument that, closely examined, the IT's reasoning does reveal a misdirection in law in that it appears to have proceeded simplistically upon the following lines:

A. The appellant was sufficiently well during the first 7/8 weeks of the three month period to give his solicitors instructions in connection with this appeal.

I would observe in parenthesis that, when the solicitors wrote on 11 September 1996 to say he was too unwell to attend the disciplinary proceedings and will be sending in written representations, there was no indication that that was a more than a holding letter requiring little by way of decision or instructions on the part of the appellant.

B. The solicitors would have been aware that the three month period was not stayed pending an internal appeal against dismissal.

C. Therefore it was reasonably practicable for the appellant to present his claim within the three month period despite the IT's express finding that, because of his illness, proceedings could not have been issued in the last six weeks of that period between 11 September and 2 October.

Mr Blakesley submitted that the conclusion in C must have been based simply upon the view that, because the issue of an application was capable physically of being made during that initial period in the sense that the appellant was physically able to give instructions for it to be done, it was reasonably practicable to do so. That was the approach specifically proscribed as too restrictive by Lord Justice May in Palmer.

Mr Blakesley submitted that the correct approach, given the solicitors' awareness of the three-month limit, would have been to assume that they would have issued an application within it but for the plaintiff's inability, as the IT found, to instruct them to do so. He also submitted that as a matter of common sense and ordinary procedure the solicitors would have been entitled to assume during the early weeks that they had the whole of the three-month period to issue and that the decision of the IT, if upheld, would effectively impose a duty on solicitors in such circumstances to anticipate that their client would or might become too ill or otherwise unable to instruct them in later weeks and so to issue proceedings early in order to protect their client against such a possibility. Mr Blakesley urged that, whether as a matter of general principle or as the practical effect of the statutory provisions, that cannot be what Parliament intended and that so to hold must create a substantial risk of injustice.

For Esso, Mr Wynter relied upon the following propositions:

1. He emphasised that whether it was reasonably practicable to file the application before the end of the period of three months is essentially a question of fact with which this court should be slow to interfere. While cases such as Wall's Meat v. Khan and Palmer v. Southend BC give guidance upon the meaning of "reasonably practicable", they do not detract from this proposition.

2. He submitted that, in the case of illness or any other disabling or inhibiting factor which the IT finds to have existed, it is inherently the case that it will occur at some given point and over some given time within the three-month limitation period and it is for the Tribunal to assess whether its effect is such as to bring an applicant within the statutory test.

3. Stripped to its essentials, Mr Wynter submitted, the appeal is based on the premise that, in coming to a decision on reasonable practicability, different rules should apply as between the position where an applicant suffers a period of illness early in the three-month period and one where he falls ill towards the end of that period, whereas the proper approach is simply for the Tribunal to bear in mind the length and effect of the illness as one of the factors affecting the overall question of reasonable practicability. That, he submitted, the IT plainly did.

4. Mr Wynter resisted the submission for the appellant that it was right for the Tribunal to assume that, but for the appellant's illness, his application would have been issued within the three-month period. In this connection he suggested in his skeleton argument that the IT's emphasis that the solicitors were aware that the three-month limit was not stayed pending any appeal against dismissal, appearing as it does immediately before the stated conclusion that in those circumstances it was reasonably practicable for the appellant to present his complaints during that period, should be read as a discreet adoption by the IT of a submission made for Esso that, having such knowledge, it was up to the solicitors to issue a complaint on the appellant's behalf before the expiry of the three-month period in order to protect his position. Mr Wynter submitted that the fact that they did not do so brought the appellant's case within the compass of those cases which are authority for the proposition that, where a man goes to skilled advisers and they make a mistake, the man must abide by their mistake; see Dedman v. British Building & Engineering Appliances Ltd . [1974] I.C.R. 53 at 61E per Lord Denning MR, and also Papparis v. Charles Fulton & Co Ltd [1981] IRLR 104.

I shall deal with that last submission first. If Mr Wynter is correct that such a coded message was intended, I think that it would indeed reveal a misapprehension of the law, alternatively a conclusion inconsistent with the IT's earlier finding that for the last six weeks of the three-month period the appellant was incapable of instructing his solicitors. There was no evidence, nor did the IT find or infer, that as at 11 September 1996 the solicitors had authority to issue proceedings, the letter of that date referring only to the disciplinary appeal. To take the step of issuing fresh proceedings was plainly something which they could not do without such instructions. Their earlier retainer to advise and/or to pursue the route of the disciplinary appeal, which is all that is referred to in the IT decision, would not have sufficed.

Turning to Mr Wynter's earlier submissions, it seems to me that, in its briefly stated form, the IT decision does appear to indicate that it proceeded on the basis that, because the application could physically have been made - in the sense that the appellant's illness was not such as to prevent his giving instructions to do it - during the first seven weeks of the three-month period, that meant ipso facto that it was reasonably practicable to present the application "before the end of the period of three months" (see section 112) and/or "within the period of 3 months" (see Article 7). If the IT did not proceed upon that simplistic basis and more subtle reasoning was involved, it certainly did not make it clear. Nor has Mr Wynter been able to fill the gap, save by asserting that the decision is an unassailable finding on a matter of fact.

I consider the approach of the IT was flawed for two reasons. First, I consider that, as I have stated, it runs counter to the observations of Lord Justice May quoted above. Second, in accepting that the absence of disabling illness after 11 September was ipso facto decisive of the overall question, the IT failed to have regard to the fact that, whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aim to be achieved. In a case of this kind the surrounding circumstances will always include whether or not, as here, the claimant was hoping to avoid litigation by pursuing alternative remedies. In that context the end to be achieved is not so much the immediate issue of proceedings as issue of proceedings with some time to spare before the end of the limitation period. That being so, in assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way focus upon the closing rather than the early stages. This seems to me to be so whether the test to be applied is that of simple reasonableness or, as here, reasonable practicability.

Thus, while I accept Mr Wynter's general proposition that, in all cases where illness is relied on, the Tribunal must bear in mind and assess its effects in relation to the overall limitation period of three months, I do not accept the thrust of his third submission, that a period of disabling illness should be given similar weight in whatever part of the period of limitation it falls. Plainly the approach should vary according to whether it falls in the earlier weeks or the far more critical later weeks leading up to the expiry of the period of limitation. Put in terms of the test to be applied, it may make all the difference between practicability and reasonable practicability in relation to the period as a whole. In my view that was the position in this unusual case. The way in which the IT expressed its decision indicates to me that it had its focus wrong and, in the light of the primary findings of fact which it made, misdirected itself in its approach to the question of reasonable practicability.

On the basis of the findings made by the IT as to the primary facts I would allow the appeal.

I have not until now referred to the decision of the EAT refusing the appellant's appeal from the industrial tribunal. The decision, which I have indicated was by a majority, was essentially that there was no indication that the IT had not taken into account all the evidence and arguments advanced to it. In particular it was observed that the IT had firmly in mind the fact that the appellant was unable to instruct a solicitor after 11 September. On that basis it was held that it was impossible to say that the decision of the IT was perverse or failed to take into account some relevant factor. It was stated that in those circumstances the decision was unassailable in point of law.

The view of the minority member appears to have been essentially that set out by Mr Blakesley in his skeleton argument; in the event it is one with which I am in agreement.

As already indicated, I would allow this appeal.

LORD JUSTICE BROOKE: I agree. I have considerable sympathy for the majority of an Employment Appeal Tribunal who were attempting to follow loyally the repeated injunctions from this court that they should be very slow to interfere with a decision of an industrial tribunal on an issue of this type. However, for the reasons given by my Lord, with which I agree, this is one of these rare cases in which a decision should be set aside.

LORD JUSTICE STUART-SMITH: I also agree that the appeal should be allowed for the reasons given by my Lord.

Order: Appeal allowed with costs.