England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Chair of the Employment Tribunal at Reading, - Mrs. J. Hill

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/02/2008

Lord Justice Wall:

1. On 18 January 2008, the applicant, Mr. John Beasley, orally renewed his application for permission to appeal against a decision of the Employment Appeal Tribunal (the EAT) dated 6 August 2007. The EAT (Silber J, sitting alone) had dismissed the applicant's appeal against an order made by the Chair of the Employment Tribunal (the Tribunal) at Reading, Mrs. J. Hill (also sitting alone). Mrs Hill had decided that the Tribunal had no jurisdiction to consider the applicant's complaint of unfair dismissal against his former employer, the National Grid (the respondent). The reason Mrs. Hill reached that conclusion was because the applicant's form ET1 had been presented outside the three month period prescribed by section 111 of the Employment Rights Act 1996 (ERA 1996). Silber J took the same view on appeal to the EAT, and on 13 September 2007, refused the applicant permission to appeal to this court. On 22 November 2007, Pill LJ, on the papers, refused the applicant permission to appeal, commenting:-

Tough though the decision of the Employment Tribunal was, I do not consider that there was an error of law which would entitle this court to intervene. On appeal to the EAT, Silber J considered the circumstances very carefully and I agree with his conclusions …… There is no real prospect of a successful appeal.

2. As Pill LJ's comments indicate, the case is a very harsh one on the facts, and having heard oral argument from the applicant, I decided, unusually, to reserve judgment.
3. It is not in dispute that the applicant, in circumstances which I shall describe in greater detail later in this judgment, submitted his form ET1 by Email some 88 seconds outside the prescribed three month period. Those 88 seconds, moreover, elapsed between midnight on Saturday 6 May 2006 (the last permissible day) and 00.01.28 on the morning of Sunday 7 May 2006.
4. The applicant accepts that there have to be time limits for the institution of proceedings in the Tribunal. The essence of his application to this court for permission to appeal is that the Tribunal Chair committed an error of law when dismissing his claim for want of jurisdiction, because (inter alia) she had not explained, consistent with the decision of this court in Meek v Birmingham City Council [1987] IRLR 250, why she had taken the view that the applicant had fallen foul of ERA 1996, section 111, and, accordingly, had not shown that she had taken all relevant factors into account when reaching her decision.
5. I have come to the conclusion that the applicant may have an arguable appeal and, accordingly, I propose to adjourn his application for permission to appeal to the full court, with the appeal to follow if permission is granted. In the highly unusual circumstances of the case, however, I propose to explain my reasons for taking this course in somewhat greater detail than I would normally do when making such an order. Furthermore, on the facts of this particular case, it strikes me that if the respondent is correct, and if the applicant is indeed barred from putting forward his case for unfair dismissal, the fact that a litigant is so barred when only some 88 seconds out of time is (1) a matter which warrants the attention of this court in any event; and (2) needs to be widely known amongst potential applicants in the Tribunal.
6. The relevant parts of ERA 1996, section 111 reads as follows:-

111 Complaints to industrial tribunal

(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3), an industrial 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.

(3) Where a dismissal is with notice, an industrial tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.

The facts

7. For the purposes of the present application, I propose only to describe those which are relevant to the present application. The applicant was employed by the respondent between 24 September 1974 and 7 February 2006. At the date of his dismissal he was an operational manager in the respondent's control room. Although before the Tribunal the applicant sought to mount an argument that the effective date of the termination of his employment (EDT) was a date later than 7 February 2006, I do not understand this argument to be pursued, and I proceed on the basis that the applicant's EDT was indeed 7 February 2006, with the consequence that time for filing his form ET1 expired at midnight on 6 May 2006.
8. The applicant's case on the facts is that following his dismissal, he both appealed against it and raised a series of grievances with the respondent. His initial understanding, derived from the booklet "Making a Claim to an Employment Tribunal" which he downloaded from the internet, was that the three month time limit would be extended by a further three months "for example, when you write to your employer within the original time-limit raising a grievance".
9. Plainly, no criticism can be made of the applicant for not filing his form ET1 whilst his appeal was pending. The appeal was heard on 20 March 2006, and the decision dismissing the appeal communicated to the appellant on 29 March.
10. The applicant says that he raised five grievances with the respondent on 12 April 2006. By this point, he had also taken legal advice. The applicant says he initially received conflicting advice. On 6 April 2006 he was told he had three months in which to put in his Form ET1, but in a telephone conversation on 7 April he says he was told it was six months, and he says that this latter advice was confirmed in writing on 11 April 2006.
11. The applicant also made contact with ACAS. He says that he did not know whether he was contractually obliged to use what he describes as the "Independent Person" process, and thus whether or not Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applied. If it did, the three month time limit would be extended. It is plain from the documentation that the applicant sought the views of ACAS on the point in writing, and that they were not forthcoming.
12. Matters came to a head on Friday, 5 May 2006. The applicant contacted the Tribunal helpline and then his solicitor urgently by Email. In the latter, he said: "I thought that as I was raising grievances the timescale went out to six months. The employment tribunals helpline tell me that for the original dismissal the three month time scale stands".
13. At 18.41 on 5 May 2006, the applicant's solicitor sent him an Email confirming a conversation which he recorded as having taken place two minutes earlier. The relevant balance of the message reads:-

Yes, lodge your ET1 today. You should be able to down load a claim form off the DTI website (reference given). The online claim form is self-explanatory and should be acknowledged straightaway. You should keep any receipt / confirmation as evidence. Do keep a copy of the online form for yourself in any event.

Please call me as soon as you hear from the Tribunal Service with your case reference number ……

14. Following this advice, the applicant plainly intended to submit his form ET1 by midnight on 6 May. It is, I think, worth noticing that in the body of the form itself, in answer to question 3.7, the appellant stated (in capital letters):-

I WAS ADVISED THAT AS I HAVE RAISED GRIEVANCES RELATING TO MY DISMISSAL THEN THE ORIGINAL THREE MONTH DEADLINE FROM THE DATE OF MY DISMISSAL (FEB 7) WOULD BE EXTENDED BY A FURTHER THREE MONTHS TO ALLOW THE COMPANY TO RESPOND TO THE RELATED ISSUES.

TODAY (5 MAY) I TELEPHONED THE ACAS HELPLINE TO CONFIRM MY UNDERSTANDING. A MR ANDREW WHITEMAN INFORMED ME HE THOUGHT THE DEADLINE WOULD EXTEND BY 28 DAYS TO ALLOW TIME FOR THE COMPANY TO RESPOND. HE DID NOT SEEM CONFIDENT IN HIS REPLY SO I TELPEHONED THE EMPLOYMENT TRIBUNAL HELPLINE. I SPOKE TO SOMEONE (NO NAME) WHO INFORMED ME THAT THE THREE MONTH DEADLINE HAD TO BE MADE AND THE OTHER GRIEVANCES, ALTHOUH RELATED, WOULD BE CONSIDERED SEPARATELY. I GATHER FROM THE WAY THIS QUESTIONNAIRE IS WORDED THAT THE THREE MONTH EXTENSION MAY BE CORRECT. HOWEVER, I AM NOW SO CONCERNED ABOUT MISSING THE DEADLINE I WOULD RATHER PUT THE SUBMISSION IN EARLY THAN RISK BEING OUT OF TIME AND HAVING THE APPLICATION REFUSED.

APOLOGIES IF I AM IN ERROR

15. The applicant did not start work on the form on Friday 5 May. He set aside the whole of the following day, Saturday 6 May, to complete the task. He explains what happened in the following words:-

I spent all Saturday attempting to fill in the ET form which I found very difficult to use. I believe there is a conflict with the latest version of Adobe Acrobat (Acrobat 7) which caused me to loose (sic) data on several occasions.

When, after much perseverance, I managed to complete the form, the next hurdle was to send it. When the "button" on the form is pressed to an email a template is generated which requires the user to fill in the ET email address. I looked up the address which appeared to be qsi.gov.uk due to the underscoring blanking the bottom of the g. I attempted to send the message at 23.44. I received a rejection at 23.45. I checked the address again and sent a test message at 23.57 which was not rejected. I then sent the form to the correct address at 24.00.

The decision of the Tribunal Chair

16. The Chair of the Tribunal's reasons for her decision were promulgated on 25 October 2006. She appears to have been under the impression that the applicant's ET1 was filed one hour and twenty eight minutes late (that is 01.28.00 on 7 May 2006) although when the error was pointed out to her (by way of the applicant seeking a review of her decision) she said that whether it was one hour and twenty-eight minutes or 88 seconds made no difference: - the ET1 was still out of time.
17. The Chair's view appears to have been very straightforward. The effective date of termination of the applicant's employment was 7 February 2006. The question, therefore, was whether or not the Tribunal had jurisdiction to consider a complaint which was presented outside the three month time limit.
18. In reaching her conclusion, the Chair of the Tribunal refers to ERA 1996, section 111(2) but does not mention the words "reasonably practicable". She records the applicant's case in the following way:-

4. Two issues were put before the Tribunal by the claimant, firstly that as the claim was presented at 01.28 (sic) on the day after the prescribed time limit there were a number of factors which the Tribunal should take into account in allowing the claim to be accepted, namely that he had received conflicting advice about the time period that applied to the claim, that he had had difficulties in using the Adobe Acrobat format, that the email address was difficult to read and that he had originally misread it and sent it to the wrong address and finally that because of the way in which he was paid after his dismissal until the date of his appeal the effective date of termination should be taken as that of the appeal date not 7 February the date of the dismissal hearing …….

7. His solicitor notified him in writing on 6 April of the three month time limited to present a claim. A subsequent telephone call suggested that this might vary if he was to submit a grievance. He was advised by ACAS on 5 May that the grievance would extend the time limit by 28 days. Later that same day the claimant rang the Employment Tribunal Service where he was advised that the grievance had not bearing on the actual dismissal and therefore the three-month time limit still applied. This was confirmed by his solicitor who advised him to be on the safe side and submit his claim within three months.

8. The claimant endeavoured to complete the form during Saturday 6 May. He had some difficulty completing it. He misread the email address and instead of typing gsi typed qsi. He sent this email at 23.44 on 6 May. It came back through the mail system error returned at 23.45 as it was not the correct address.

9. The claimant then sent a test message at 23.57 to the correct address. He then at midnight on 7 May sent his claim form. This was received by the Tribunal Service at 01.28 (sic) ……

11. Having considered the conflicting arguments I was not satisfied that the claimant could argue that he was mislead by conflicting advice he had received regarding time limits. Although in the case of Marks and Spencer v William-Ryan [ 2005] IRLR 562 the issue of poor advice had resulted in the claim being accepted, in this instance the claimant had all the documentation which indicated a three month time limit applied and he was given specific advice the day before the time limit expired that he should get his claim in immediately.

12. It was his failure to transcribe the email address correctly that meant that it was sent into the ether as it were. This is no different from a person who misdials a telephone number for the purposes of a fax. It is only when the claim is received by the Employment Tribunal that it is deemed to be presented.

13. I noted that he could have sent the claim on 6 May albeit three minutes before the time limit but chose to send a text message (sic) instead. By his own evidence the actual time he sent it was 7 May albeit only just and it was actually received on 7 May at 01.28 (sic).

14. On that basis if the effective date of termination is 7 February the claim was out of time and there is no jurisdiction to consider it.

19. In the remaining two paragraphs of her reasons, the Chair rejects the proposition that the effective date of termination should be the date of the applicant's appeal. She repeats her view that the effective date of termination was 7 February: time started to run "from that time and therefore the failure to present the claim within three months of that date meant that there was no jurisdiction to consider the claim.

The preliminary decision of His Honour Judge Reid QC in the EAT

20. The applicant's appeal to the EAT came before His Honour Judge Reid QC for preliminary hearing on 4 April 2007. Judge Reid was not, it would seem, particularly impressed with the Chair's reasons. "I accept at once", he said, "that the decision could perhaps have been more happily framed and might perhaps have been fuller". He pointed out that there was "no express reference to reasonable practicability" although he took the view that the Chair's reference to Marks & Spencer v Williams Ryan made it clear that this was something which was well within her mind.
21. Judge Reid's decision was that the matter should go to a full hearing "to determine whether or not the Chairman's decision is invalidated or should be reconsidered because the failure to take into account all material matters relevant to deciding whether it was reasonably practicable for (the applicant) to launch his proceedings in time".

The decision of Silber J in the EAT

22. In the EAT, Silber J took the view that it was necessary first to determine if the Tribunal had actually considered if it has been "reasonably practicable" for the applicant to bring his claim within the three month period. The judge accepted that nowhere in her decision had the Chair used the words "reasonably practicable"; nor had she at any point expressly referred to the issue of whether it has been "reasonably practicable" for the applicant to bring his claim within the three month period. However, the judge accepted the submission made by counsel for the respondent, based on the decision of this court in Retarded Children's Aid Society v Day [1978] ICR 347 that "reading between the lines" the Chair had considered and reached a conclusion on the point. He concluded, moreover, that the Tribunal had not failed to take into account any material matter, and that the Chair's reasoning was, in shorthand, Meek compliant.

The basis of the applicant's application for permission to appeal to this court

23. As always, the question for this court is whether or not the Tribunal made an error of law which the EAT has failed to correct. As I have already indicated, it seems to me that the applicant may have several arguable points. The first, in my judgment, must be the question of whether or not in a situation such as the present, where the facts are extreme, it is appropriate to apply the Retarded Children's Aid Society approach and to "read between the lines". This point is, of course, allied to the argument based on Meek v. Birmingham City Council. In my judgment, it may be arguable in the instant case that the Chair of the Tribunal has not fully taken all the facts properly into account, and has not explained her reasoning in a Meek compliant way.
24. In one sense, the point could not be more fundamental. It involves access to justice, and a case being heard on its merits. If a litigant is to be denied access to a merits hearing on the basis that he is out of time, that litigant in my judgment is entitled to a full and proper explanation of why he is being excluded. In my judgment, it may be arguable that this is not what the Chair has done.
25. Furthermore, it does seem to me, as a matter of law, that it may be arguable that the Chair has not given full and proper consideration to the question of reasonable practicability in the context of the whole of the three month period. This is not a man who, as it seems to me, has done nothing for three months and then rushes to his computer on the last day. The applicant's good faith seems to me to be clearly demonstrated by the final two sentences of the passage in capital letters which I cited from his form ET1. These do not appear to form any part of the Chair's consideration.
26. I am also not clear that Marks & Spenser v. Williams-Ryan is inimical to the applicant's case, and think it may be arguable that this case was not fully or properly considered by the Chair of the Tribunal.
27. In addition to these points, it seems to me that the case, on its extreme facts, throws up a point of some importance, and one, moreover, that warrants consideration in this court. Many of the previous decisions are of the EAT: there is little recent authority in this court, and none relating to a point of law arising from such unusual facts.
28. I warned the applicant at the oral hearing that if he were granted permission to appeal, but lost the substantive appeal, he might well have to pay the respondent's costs, unjust as that might seem. The same, of course, applies to the adjourned hearing, either if the applicant is not given permission to appeal, or if he is, and the appeal itself is dismissed. If the applicant takes up the adjourned hearing which I have given him, therefore, that risk remains, although in my judgment since he may have an arguable case, he would – subject to means – seem to me to qualify on merits for public funding.
29. I propose to allocate three hours to the hearing of this application, since there will undoubtedly be citation of authority. I will also direct that it be heard by a three judge court, and that at least two of the members of the constitution should have experience in the EAT.
30. Although an adjournment such as that which I have ordered would normally result in a listing which took no heed of the convenience of counsel, the reason I have listed the matter in this way is not due to the need for a speedy resolution, but because I am sufficiently concerned about the point to make it appropriate for the application to be heard by the full court. There is, in my view, no particular need for expedition.