United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 603_93_1711

Appeal No. EAT/603/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th November 1993

Judgment delivered on 6th December 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

MRS M L BOYLE

MR J A SCOULLER

---

(1) MARLEY (UK) LTD

(2) MARLEY FLOORS LTD          APPELLANTS

MR S J ANDERSON          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR D RICHARDSON

(of Counsel)

Messrs Argles & Court

Solicitors

12 Mill Street

Maidstone

Kent

ME15 6XU

For the Respondent MR N FAIRWEATHER

(Solicitor)

Mesdames Harman & Harman (Solicitors)

10 Station Road West

Canterbury

Kent

CT2 8AN


 


MR JUSTICE MUMMERY (PRESIDENT) On 15th November 1991 Mr Stuart Anderson, an Information Technology Manager employed by Marley Floors Ltd, was given notice of redundancy as from that date. He received statutory redundancy pay, enhanced in accordance with the terms of the Marley Floors Ltd Redundancy Scheme. He did not make any complaint of unfair dismissal, either at that time or within the period of three months beginning with the effective date of termination, as allowed by S.67(2) of the Employment Protection (Consolidation) Act 1978. That period expired on 14th February 1992.

Over two months later, on 23rd April 1992 an Originating Application, by which Mr Anderson presented a complaint of unfair dismissal, was received at the Central Office of Industrial Tribunals. According to the detailed complaint set out in three pages attached to the Originating Application, Mr Anderson had first learnt on about 18th March 1992 of matters which gave him grounds for believing that he had been dismissed unfairly and not by reason of redundancy.

On 9th November 1992 the Originating Application was amended by consent to add a new complaint that on or around 24th October 1992 Mr Anderson had seen, for the first time, a confidential memorandum containing further matters which he believed indicated that his dismissal may have been connected with criticism of his work performance and not with redundancy.

On 18th June 1993 the Industrial Tribunal at Ashford held a Preliminary Hearing to decide whether, having regard to the time limit imposed by S.67(2) of the Act of 1978, the Tribunal had jurisdiction to consider his complaint. For reasons fully set out in the Decision, which was sent to the parties on 28th June 1993, the Industrial Tribunal held that -

(1) It did not have jurisdiction to consider the merits of Mr Anderson's case for unfair dismissal based on the matters which he had first learnt on about 18th March 1992. Mr Anderson appeals against that decision. Although it is in the form of cross-appeal, this Tribunal suggested, and counsel for the parties agreed, that this point should be argued first.

(2) It did, however, have jurisdiction to consider the merits of Mr Anderson's case based on the matters which he first learnt late in October 1992. Marley Floors appeals against that decision.

Section 67(2) of the Act of 1978

Both the appeal and the cross-appeal concern the operation of that part of S.67(2) which confers jurisdiction on an Industrial Tribunal to hear a complaint of unfair dismissal presented after the end of the three month period. This sub-section provides:

"Subject to sub-section (4), an Industrial Tribunal shall not consider a complaint under this section unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the Tribunal considers reasonable in a case where it is satisfied it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

Sub-section (4) has no application to this case.

Section 67(2) requires the Tribunal to ask two questions:

(1) Is it satisfied that it was not "reasonably practicable" for the complaint to be presented before the end of the period of three months? If the Tribunal is satisfied on that point, it must then ask itself the second question;

(2) Was the complaint presented to the Tribunal within such further period as the Tribunal considers reasonable?

The decision on both questions is one of fact for the Industrial Tribunal: Wall's Meat Co Ltd v.Khan [1979] ICR 52 at p.56 F-G and 57C, 59E and 60C. This Tribunal only has jurisdiction to entertain an appeal on a point of law. If the Industrial Tribunal made no error of law in answering either question, both the appeal by Marley Floors and the cross-appeal by Mr Anderson must fail.

The first question - reasonable practicability

Mr Anderson's contention on the first question is that it was not reasonably practicable for his complaint to be presented before the end of the period of three months, because it was only after the end of that period that he first became aware of facts on which he bases his complaint. The Industrial Tribunal accepted this contention and held that it was not reasonably practicable for Mr Anderson's complaint to be presented before 14th February 1992. The Tribunal accepted Mr Anderson's evidence and found the following facts:

(1) On about 18th March he was telephoned by a former colleague who told him that Marley Floors had merged with another company in the Group, Marley Waterproofing Ltd. About a week later he was sent a copy of a document setting out the structure of the merged company. The document showed a Mr Graham White as Information Technology Manager, the post which Mr Anderson held with Marley Floors and Mr Graham White held with Marley Waterproofing. The discovery of the merger and the survival of the post of Information Technology Manager are described in the Tribunal's decision as "the first crucial fact".

(2) The discovery of the first crucial fact led Mr Anderson to believe that the merger was a substantial time in the planning and must have been in active contemplation at the time when he was made redundant. His experience of the Marley Group was that decisions were not made quickly. The Tribunal held that Mr Anderson reasonably believed that his job still existed and that either there was not a redundancy situation on 15th November 1991 or that he had been unfairly selected for redundancy.

(3) Late in October 1992 Mr Anderson received in the post a copy of a memorandum dated 18th June 1991 which was extremely critical about the Information Technology Department in general and about Mr Anderson's performance in particular. He had never been notified of these criticisms of his performance and had never had any opportunity to refute them. He inferred from the document that the author of it (Mr Twohig) was recommending his dismissal for poor performance.

These matters are described in the decision of the Industrial Tribunal as "the second crucial fact".

(4) The discovery of the second crucial fact gave Mr Anderson reasonable cause to believe that redundancy was not the true reason for his dismissal and that he had been unfairly dismissed.

On this appeal Marley Floors cannot and do not challenge the correctness of these findings of fact. They make two submissions on the law in reliance in the decision of the Court of Appeal in Machine Tool Industry Research Association v. Simpson [1988] ICR 558. In that case the Court of Appeal dealt with the approach which should be adopted to the question of reasonable practicability in cases where an employee only became aware of facts crucial to his complaint of unfair dismissal towards or after the end of the period of three months.

The Court of Appeal held (at p.564E - 565A) that it is for the employee to prove that - (1) It was reasonable for him not to be aware of the factual basis on which he could bring an application to the Tribunal within the three-month period. It is not reasonably practicable for an applicant to present a complaint based on facts unknown to him.

(2) The facts which become known to the employee must be facts which are crucial in changing the employee's subjective state of mind from one in which he did not believe that he had grounds for presenting a complaint into one in which he has a reasonable and genuine belief in grounds for presenting a complaint.

(3) The acquisition of such knowledge by the employee must be crucial to his decision to present a claim.

In an earlier passage (at p.564 A-D) the Court of Appeal rejected the contention that it was necessary for the employee in cases of this kind to establish the truth of the crucial fact which had reasonably caused him to form a genuine belief that he had a complaint for unfair dismissal and to decide to present his complaint out of time.

Submissions of Marley Floors

Marley Floors submitted that the Tribunal had made two errors of law.

(1) The relevant date

It was submitted that the Tribunal had erred in law by ruling that the reasonableness of Mr Anderson's belief had to be established at the date when he was considering whether or not to present a complaint of unfair dismissal. It was argued that the Tribunal should have accepted the submission made by Marley Floors that the relevant date for considering the reasonableness of Mr Anderson's belief was the date of the Preliminary Hearing itself. That submission was made in the context of an application to call evidence from the Group Chief Executive of Marley Plc, Mr David Trapnell, in order to show that, at the time when Mr Anderson was made redundant, the idea of merging some of Marley's many subsidiaries was simply one of numerous ideas which had been discussed; and the earliest that any proposal to merge Marley Floors and Marley Waterproofing could be said to exist was immediately prior to the 1991 Christmas break, that is after the effective date of termination of Mr Anderson's employment. Marley Floors therefore hoped to show that the true facts regarding the merger were not as Mr Anderson believed in March and April 1992.

In our judgment, the Tribunal correctly held that the relevant question was whether Mr Anderson reasonably and genuinely believed in the truth of the facts concerning the merger at the time when he was considering whether or not to present a complaint of unfair dismissal. That question involves an investigation into the state of Mr Anderson's knowledge at that time and into his subjective beliefs. It does not involve an inquiry into the truth of the facts which he learnt and which led him to form his belief.

Far from being contrary to the decision of the Court of Appeal in the Machine Tool case, this approach is supported by it. At p.564D Purchas L.J. said:

"... fundamentally the exercise to be performed is a study of the subjective state of mind of the employee when, at a late stage, he or she decides that after all there is a case to bring before the Industrial Tribunal. There is no indication in the wording of the section that it is necessary for an application to be relieved of the strict time limit to establish, as facts those facts which have caused a genuine frame of mind, and reasonably so caused it, to form a decision to present a complaint to the Tribunal out of time."

For those reasons we hold that the Industrial Tribunal correctly rejected the contention of Marley Floors as to the relevant date and correctly ruled that the evidence of Mr Trapnell was not relevant.

We would add that, although the Tribunal stated that the reasonableness of the Applicant's belief was "something to be ascertained from the Applicant's evidence," cases may occur in which the respondent is able to call evidence relevant to the issue of the reasonableness and genuineness of the employee's state of belief at the time when he is considering whether or not to present a complaint. The evidence which Marley Floors proposed to call from Mr Trapnell was not relevant, since it was only sought to be adduced in order to show that it was not reasonable, in the light of all the evidence, to hold that belief

at the date of the preliminary hearing.

(2) The second crucial fact and reasonable practicability

Marley Floors attack the decision of the Tribunal that it was satisfied that it was not reasonably practicable for Mr Anderson's complaint based on the second crucial fact to be presented before the end of the period of three months. Marley Floors submit that the Tribunal erred in law in coming to this conclusion by adopting an approach contrary to that laid down by the Court of Appeal in the Machine Tool case at p.564E to 565A.

Mr Richardson, on behalf of Marley Floors, advanced the following arguments.

1. It was held in the Machine Tool case that the applicant's knowledge of a crucial fact must be such as to change his state of belief ie, to change it from one of belief that he did not have grounds for presenting a complaint for unfair dismissal to a reasonable and genuine belief that he did have such grounds.

2. That change of belief was effected in this case by the first crucial fact. Acting on his change of belief Mr Anderson presented his complaint to the Tribunal on 23rd April 1992, though the Tribunal went on to hold that the date of the presentation of the complaint was outside such further period as it considered reasonable.

3. The second crucial fact did not have the required effect of changing Mr Anderson's state of belief. At the date when he became aware of the second crucial fact his state of belief had already changed and he had acted, albeit ineffectually, on that state of belief.

4. In brief, therefore, the legal position on the true interpretation of S.67(2) of the Act of 1978 is that, as soon as an applicant believes that he has grounds for making a complaint for unfair dismissal, he must present his complaint within such further period as the Tribunal considers reasonable. If he fails to do so, the later discovery by him of other grounds for presenting a complaint does not give him "a second bite at the cherry".

In our judgment, these submissions are unsound. They are not supported by the language of S.67(2) of the Act of 1978, as interpreted by the Court of Appeal in the Machine Tool case. Our conclusions are as follows:-

(1) In applying the clear language of S.67(2) to the facts found by it the Tribunal was entitled to conclude that it was not reasonably practicable for Mr Anderson to present his complaint based on the second crucial fact before the end of the three-month period. He simply did not know before the end of that period that a memorandum existed which was extremely critical of his department in general and of his performance in particular. He only learnt of the existence of that memorandum late in October 1992. On 9th November 1992 the Originating Application was, by consent, amended to present a complaint on the second crucial fact. In those circumstances there was ample material before the Industrial Tribunal to support its conclusion that the second crucial fact gave Mr Anderson reasonable cause to believe that redundancy was not the true reason for his dismissal; that it was not reasonably practicable for him to present that complaint before the end of the three-month period; and, having learnt of the second crucial fact late in October 1992, he had presented his complaint based on that within a period which the Tribunal considered reasonable.

(2) The submission that the Tribunal's approach was wrong, as being contrary to the decision of the Court of Appeal in the Machine Tool case, rests on a misreading of the judgment of Purchas L.J. in that case. No judgment should ever be construed as if it were a statute, least of all a judgment which is itself concerned with the construction of a statute. The passage in the judgment of Purchas L.J. at p.564E - 565A is concerned with an inquiry into the subjective state of the applicant's mind before and after he becomes aware of facts crucial to his complaint. The language of the general discussion about that inquiry is, of course, coloured by the context of the particular facts of that case. In the Machine Tool case the employee learned of certain facts towards the end of the three-month period which caused her to believe that the true reason for her dismissal was not redundancy, but she did not present her complaint to the Industrial Tribunal until three days after the end of the period. It was not a case in which the employee learnt after the end of the three-month period of yet further facts giving her reasonable grounds to believe that she had a complaint for unfair dismissal.

If it is necessary to be guided by specific judicial authority on this point, we would find that the facts of the present case are closer to the decision of the Employment Appeal Tribunal in Churchill v. A Yeates & Sons Ltd [1983] ICR 380, a decision cited with approval in the Machine Tool case at p.565. In the Churchill case a complaint for unfair dismissal was presented out of time. The Originating Application set out six grounds for the complaint of unfair dismissal. Five of the grounds were known to the employee well before the end of the three-month period. He only learnt of the sixth ground a few days before the end of three-month period. The Industrial Tribunal held that, since there were five grounds of alleged unfairness known to the employee well within the three-month period, it was reasonably practicable for him to present a complaint within that period. The fact that there was another ground which might or might not have rendered it reasonably impracticable to present the claim was irrelevant. The Employment Appeal Tribunal allowed the appeal against that ruling and remitted the matter for it to consider what were the facts of the case, because the Industrial Tribunal had not made any findings of fact as to whether it was practicable for the employee to bring a case within the three-month period based on the new facts discovered by him at the end of the period. In allowing the appeal the Tribunal stated at p.383H:

"In our judgment it is not enough to say that it was reasonably practicable to bring a complaint on certain grounds if it is demonstrated that it was not reasonably practicable to bring a complaint on another separate ground."

In our judgment, although the facts of the Churchill case were unusual and are different from those in the present case, that observation is more helpful to Mr Anderson than to Marley Floors. The Churchill case supports the proposition that it is necessary to look at the separate grounds of complaint for unfair dismissal. In this case the Tribunal looked at the grounds revealed by the first crucial fact and held that it was not reasonably practicable to present the complaint within the period of three months. In our view, it was entitled to regard the second crucial fact as a further ground for presenting a complaint and to conclude that it was not reasonably practicable to present a complaint on that ground before the end of the period of three months.

3. The reasonable period point

Mr Anderson's cross-appeal challenges the decision of the Industrial Tribunal that his complaint based on the first crucial fact was not presented within such further period as it considered reasonable. On this point Marley Floors submit that there is no appeal since it is a decision on a question of fact and that, in any event, the Tribunal's decision on those facts was clearly right and not vitiated by any error of law.

There is, of course, no appeal against the primary facts which the Tribunal found relevant to this point. Those facts were conveniently summarised for this Tribunal in a chronology of events submitted by counsel for Mr Anderson. The effective date of termination of Mr Anderson's employment was 15th November 1991 and the three-month period ended on 14th February 1992. On 18th March 1992 a merger was announced between Marley Floors and Marley Waterproofing. Either on that day or the next a former colleague of Mr Anderson informed him on the telephone about the merger. On the following Monday, 23rd March, Mr Anderson telephoned his solicitors and made an appointment to see them on the following Monday, 30th March. During the week before the appointment Mr Anderson received in the post a copy of the document concerning the merged company and showing the continuing role for an Information Technology Manager. Mr Anderson kept his appointment with the solicitors on 30th March. On 8th April he instructed them to write a letter before action stating his complaint and seeking further information. The solicitors faxed a letter to the Managing Director of Marley Floors on 9th April setting out the facts relevant to Mr Anderson's complaint and stating that the first crucial fact had come to his attention. In the letter the solicitors, Messrs Harman & Harman, asked Marley Floors to indicate within 14 days what stage had been reached as regards the merger as at 30th October 1991. In particular, they requested Marley Floors to indicate the date the first Board meeting at which the matter was raised and to disclose Minutes of that meeting and all other such meetings when the merger was discussed. An undertaking was offered not to use such material for any other purpose than the conduct of any litigation which was considered appropriate. By a letter dated 10th April and sent by post, Marley Floors stated:

"We do not believe that it is either necessary or appropriate to provide you with details of the basis upon which Companies within the Marley Group put into effect management decisions.

We can however tell you, that at the time your client was made redundant, Marley Floors Limited was unaware of any plan or decision on the part of the Group Main Board which might have had a bearing on the termination of Mr Anderson's employment."

That letter was received by Mr Anderson's solicitors on 13th April. On 16th April Mr Anderson was contacted by his solicitors and he instructed them to issue proceedings.

The next day, 17th April, was Good Friday and the following Monday 20th April, was Easter Monday.

On 21st and 22nd April the Originating Application was drafted. There was annexed to it a detailed and closely typed draft running to three pages. Mr Anderson signed the application on 22nd April. It was sent by fax and received at the Central Office on 23rd April.

Why, on those facts, did the Industrial Tribunal decide that Mr Anderson's complaint was not presented within such further period, after the end of the three-month period, as it considered reasonable?

Mr Anderson submits that the Tribunal reached that conclusion as a result of misdirecting itself about the effect of the decision of the Court of Appeal in James W Cook Ltd v. Tipper [1990] ICR 716. The solicitor for Marley Floors drew the attention of the Tribunal to that decision and made a submission about its effect which was accepted by the Tribunal. The Tribunal stated, in its reference to the James Cook case, that the Court of Appeal "strongly indicated that Tribunals should not regard a delay of more than about two weeks as being within a reasonable period except in cases with very exceptional facts. Delays of 4 and 6 weeks in that case were regarded as "simply too long"." The words "simply too long" were contained in the written submission of Marley Floors to the Tribunal. They were not words used in the judgment in the Court of Appeal in the James Cook case. Later in its decision the Tribunal stated that it had been persuaded by the submission of Marley Floors and by the decision of the Court of Appeal in the James Cook case that "unfortunately, even making allowance for the incidence of Easter, Mr Anderson and his solicitors delayed too long before presenting the originating application."

In our judgment, the Tribunal's decision on this point was influenced by an error of law. That error was in the Tribunal's acceptance of Marley Floors' submission about the legal effect of the judgment in the James Cook case. In particular, the Tribunal appears to us to have thought that it was constrained by that decision to regard a delay of 4 weeks or more as longer than a reasonable period. It is, of course, the case that Tribunals should be "fairly strict in enforcing the time limit." See Wall's Meat Co Ltd v. Khan (supra) at p.55G. It is, however, a misreading of the judgment of Neill L.J. in the James Cook case to regard it as strongly indicating that Tribunals should not regard a delay of about more than about two weeks as being within a reasonable period or should regard delays of 4 and 6 weeks as being too long to be reasonable. The relevant passage in the judgment recognises that the decision as to what is a reasonable period depends on the circumstances of the case. In the circumstances of that case the Court of Appeal concluded that the Industrial Tribunal was correct in considering that an application submitted by one applicant was within a reasonable period after the statutory time limit had expired. The Industrial Tribunal, however, misdirected itself in the case of another applicant who had delayed for over 6 weeks after the expiry of the statutory period. It appears, however, from p.725C of the judgment that that applicant did not give evidence to the Tribunal and did not put forward any explanation as to why the presentation of his complaint was delayed.

In this case the findings of fact reveal that evidence given by Mr Anderson was accepted by the Tribunal in relation to the delay which occurred between the discovery of the first crucial fact and the presentation of the complaint. That evidence referred to various matters relevant to the question whether the complaint has been presented within such further period as the Tribunal considers reasonable eg, such matters as seeking legal advice, making an appointment with a solicitor, sending a letter before action and so on. It was recognised in the Wall's Meat Co case at p.59 C-D that such matters "may take time and create an unavoidable impediment to the presentation of a claim before the three months have run out."

In our judgment, the reasons given by the Industrial Tribunal for its decision on this point disclose an error of law which led the Tribunal to concentrate on the length of the delay to the exclusion of a proper consideration of all the relevant circumstances in which that delay occurred. We accept the submission made on behalf of Mr Anderson that the error of law took the form of a misdirection in accepting Marley Floors' submission that the James Cook decision laid down time-limits as to what should and should not be regarded as a reasonable period. That decision of the Court of Appeal did not lay down any time-limits. The correct position is that if the Tribunal is satisfied, as it was here, that it was not reasonably practicable for the complaint to be presented before the end of the three months, the Tribunal was then free to consider, having regard to all the relevant facts of the particular case whether the complaint was presented "within such further period as the Tribunal considers reasonable".

For those reasons we shall -

(1) dismiss the appeal of Marley Floors from the Tribunal's decision on the second crucial fact;

(2) allow Mr Anderson's appeal against the Tribunal's decision on what it considered a further reasonable period in which to present the complaint;

(3) remit the matter of the further reasonable period to the Industrial Tribunal for it to consider as soon as possible, in the light of our ruling on the effect of the James Cook case and having regard to all the relevant circumstances of this case, whether Mr Anderson's complaint was presented within a further reasonable period.

We do not accede to the submission made on behalf of Mr Anderson that a Tribunal, properly directing itself on the interpretation of S.67(2) and the effect of the James Cook decision, could only come to one conclusion namely, that it considered the further period to be reasonable in this case. As we have already pointed out this is a question of fact and degree for the Industrial Tribunal to decide, not this Tribunal.