United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS C MACLAREN (of Counsel) The Solicitor London Borough of Hackney 298 Mare Street London E8 1HE
For the Respondent	MS I OMAMBALA (of Counsel) Instructed by: Mr Adam Creme Legal Department UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE MORISON (PRESIDENT): We have considered two points in relation to your application, the first was the question of time and any prejudice that would be caused to the London Borough of Hackney.

We have to say that none of us was of the view that you should be refused leave on the grounds of time or prejudice. We believe that in the circumstances of the speedy way this appeal has come forward we would have been wrong to have refuse you leave to make it out of time, and prejudice to Hackney could have been compensated for in costs. However, we have had to ask ourselves whether an application to cross-appeal would have any sensible prospect of success. It seems to us that having regard to the findings of fact made by the Industrial Tribunal, that it is not reasonably arguable that there is was a series of acts which continued until 22nd November, because it seems to us that that point was adjudicated upon by the Industrial Tribunal based upon the evidence which they heard, and we regard this as an evidential question and there is no ground for thinking that the tribunal has erred in relation to that.

Accordingly on that ground we refuse you leave. We retain any open mind as to the result of this appeal on the issues which were raised in your two arguments.

MR JUSTICE MORISON (PRESIDENT): This is an appeal by the London of Hackney against a decision of an Industrial Tribunal which held that Mr Hallissey's complaint of action short of dismissal on grounds related to union membership or activities, should be heard by the Industrial Tribunal in all the circumstances.

It is said that this decision of the Industrial Tribunal was arrived at through an error of law, and that on a true analysis, the application to the Industrial Tribunal was presented out of time, in circumstances in which it was reasonably practicable for it to have been presented in time. Thus if the appeal succeeds, the application will not be able to be heard.

The background to this case is very clearly set out in an admirably clear decision of the Industrial Tribunal:

"5 The first point which I have to decide is the date of the action to which the complaint relates or, as was put forward in argument on behalf of the Applicant, whether there has been a series of similar actions and what date was the last of those actions. The dates which are contended for are 6 September which is the date on which the Applicant received the letter requesting him to attend the interview, 8 September which is the date on which the Applicant withdrew from the interview under protest and 22 November which is the date on which Personnel gave their conclusions on the Applicant's complaint. I should first say that I do not think that 8 September can be the date. Section 147 speaks of the action to which the complaint relates and to my mind this indicates that there must be some action on the part of the Respondents. There was really no action on the part of the Respondents on 8 September, except that in accordance with the letters which had been issued, the interview panel was held. The only action on 8 September to my mind was the Applicant's withdrawal under protect from the interviews and this was an action which is contemplated in Section 147. In my view there has to be come positive action taken by the Respondents about which complaint can be made under the provisions of Section 146 and consequently, I reject any suggestion that 8 September can be a date to which consideration could be given. This leaves the dates of 6 September and 22 November. It seems clear to me that action was taken by the Respondents on 6 September in that it was on that date that the letter summoning the Applicant to the interview and enclosing the job description and person specification was brought to the attention of the Applicant. Can it be said, as contended by Mr Loudoun, that the action continued until 22 November when Personnel came to a final conclusion on the complaint which the Applicant had put forward as to the composition of the interview panels and they way in which the interviews had been conducted? Again, it does not seem to me that this is action to which the complaint relates. The Applicant's complaint, according to the memorandum of 16 September, was in respect of the job descriptions and person specifications. He did not mention in that memorandum the substance of the complaint which he now makes to the Tribunal, namely that the job was to senior to be held by a shop steward. Having regard to this, I cannot hold that action to which the complaint relates took place on 22 November, nor am I prepared to hold that it was part of a series of similar actions. It seems to me that for 22 November to be a date on which it could be said that action took place, there would have to be a specific complaint raised by the Applicant that one of the reasons for the interview panel being set up in the way it was was to exclude him because he was as shop steward. If he had made this one of his complaints, and if then that complaint had been rejected by Personnel, then I think there would be strong argument for saying that an action to which the complaint relates did take place on 22 November on the grounds that there would on that date have been a rejection of the Applicant's complaint taken by the Respondents with full knowledge of the circumstances. I should say that I have had regard to the decision of the Employment Appeal Tribunal in British Airways Board -v- Clarke & Haville [1982] IRLR 238 where the two employees had been through a series of disciplinary proceedings. The Employment Appeal Tribunal upheld the finding of the Industrial Tribunal that the last date for the action complained of was the rejection of the employee's final appeal under the Respondent's disciplinary procedure. That case however concerned disciplinary proceedings and seemed to have turned on the point that since it was open to the employer at all times, to reverse the original decision that the two employee should be reprimanded for what they had done, then there was not an ending of the action taken against them until the final rejection of their appeal. The present case does not appear to me to be similar to that, although there might have been arguments for saying so, had the Applicant specifically put forward what he now complains of to the Tribunal in the complaint which he originally made to Personnel.

6 Consequently, I find that the action to which the complaint relates took place on 6 September and that consequently, any Application ought to have been presented on or before 5 December 1993. Consequently, this Application is prima facie out of time and can only be allowed to go forward if the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months and that it was presented within such further period as the Tribunal considers reasonable. The provision in Section 147 is in the same terms as Section 111 of the Employment Rights Act 1996 and it was contended on behalf of the Respondents that the same meaning should be given to Section 147 as is given to Section 111 and its predecessor Section 67(2) of the Employment Protection (Consolidation) Act 1978. Regard should be had to the fact that these Sections prohibit the Tribunal from considering complaint unless the provisions of paragraph (a) or paragraph (b) are complied with and that the Tribunal must regard these Sections as having the same strict test to be applied to them as apply to Section 111. I do not feel that this ought to be the position. My view is that although the Section are couched in similar terms, a different approach ought to be taken. The point about Section 111 is that at that time the employee has been dismissed. If he is going to make a complaint to an Industrial Tribunal that his dismissal is unfair, then it is incumbent upon him to present his Application within the period of three months prescribed by Section 111. IN the case of Section 147, the employee remains in employment. It is my view that if the employee then chooses to pursue a grievance or similar procedure set up by his employers, in order to deal with such matters, then ought first to explore that avenue and should not take the possibly controversial step of presenting an Application to an Industrial Tribunal and thereby possibly antagonising his employers. It seems to me therefore that a more liberal view ought to be taken regarding this section and that it is not necessarily fatal to an employees case that he has not presented his Application within the period of three months prescribed by paragraph (a) provided that he does act promptly after the rejection of his complaint, or if the consideration of this complaint is dragging on for an unreasonably time, he presents an Application in order to preserve the position.

7 The position here is that the Applicant presented a complaint to Personnel. It is not clear to me if this was officially done through the Respondents' grievance procedure or what procedure was actually used but the point to my mind is that whatever procedure was being used, Personnel were clearly dealing with it. Personnel did not reject the Applicant's complaint until 22 November and thereafter, on the advice of the Branch Secretary, he sought and obtained a meeting with officials of the Respondents and this meeting took place on 30 November. The meeting did not achieve any satisfactory result for the Applicant and the Application was presented on 6 December, one day out of time. It seems to me that the Applicant was entitled certainly to wait until the result of the hearing on 30 November and was thereafter entitled to obtain advice from his Branch Secretary as to how the matter should now proceed. I therefore find that having regard to the fact that the Applicant was actively pursuing a grievance or was pursuing the matter in some fashion through the Respondent's Personnel Department who were dealing with the matter and preparing a response that it was not reasonably practicable for him to present the complaint before the end of the period of three months beginning with the date of the action to which the complaint relates because he was actively pursuing his grievance and thereafter was actively seeking a meeting with officials of the Respondents to discuss the matter further. I find that the Application was presented within a reasonable period after the expiration of the period of three months in that it was not unreasonable for the Applicant to consult the Branch Secretary to decide what should be done next and to decide in association with the Branch Secretary that it was appropriate for an Application to be presented. Consequently, for these reasons I hold that the Tribunal has jurisdiction to entertain the Applicant's claim which will now go forward to a full hearing."

The statutory background against which this appeal takes place starts with section 23 of the Employment Protection (Consolidation) Act 1978. That section provided:

"(1) An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of-

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b) prevent or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or

(c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In subsection (1)(b) "an appropriate time " means-

(a) a time outside the employee's working hours, or

(b) a time within his working hours which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union;

and for this purpose "working hours", in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

...

(5) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of this section."

Section 24(2) of that Act provided a time limit for the making of complaints of action short of dismissal on grounds related to union membership or activities. That section is now to be found in section 147 of the Trade Union and Labour Relations (Consolidation) Act 1992 which is a consolidating statute:

" An industrial tribunal shall not consider a complaint under section 146 unless it is presented-

(a) before the end of the period of three months beginning with the date of the action to which the complaint relates or, where that action is part of a series of similar actions, the last of those actions, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable."

It is to be noted that the test to be applied by this section is similar, one might say almost identical, to the test which is to be applied under section 67(2) of the 1978 Act or section 111 as it now is of the Employment Rights Act 1996. However, it will be quite apparent that the application of the same test is taking place in two different environments. Where an employee is complaining of action short of dismissal on grounds relating to union membership or activities, the employer/employee relationship is still in existence, whereas where the complaint is of unfair dismissal, that relationship has come to an end. Secondly, unlike a case of unfair dismissal, an employee may make an complaint about a whole series of different acts including acts in the appellate procedure which may form the subject matter of his complaint under section 146 of the 1992 Act. In relation to unfair dismissal it is the act of dismissal of which complaint is made which may or may not have taken place before or after the appellate process. Thirdly, it is to be noted, that in the case of action short of dismissal, the statute specifically contemplates that the action complained of may form part of a series of similar actions and that time runs from the last of those actions; whereas of course in the case of unfair dismissal, there is only one event about which complaint is made, namely the dismissal.

That is the statutory background to the matter in issue.

The essential element in the appeal, as it seems to us, may be summarised in this way. The Industrial Tribunal Chairman correctly addressed his mind to the question as to the nature of the complaint which the employee was making in this case. He had to ask himself what was the action to which the complaint related; and secondly, did that action form part of a series of similar actions.

In relation to the first question, the Chairman will have had an opportunity to look at the IT 1 which the employee had presented and to hear the applicant's evidence. Having both pieces of material before him, the Industrial Tribunal concluded, as we read the decision, that there was one action of which complaint was made, namely the way in which the job descriptions and person specifications had been drawn up. It was alleged this had been done in such a way as to make it effectively impossible for the applicant to be integrated into those posts. The Chairman rejected the suggestion that the action was part of a series of actions, so that the last action was the failure by the interview panel to redress the grievance about which he had been making complaint. The last date, if that action had been truly part of the series of which complaint was made, would have occurred on 22nd November, or alternatively 30th November, when he received notification of the result. Plainly if that had been the relevant date, then the IT 1 had been presented within time. But he rejected that in a passage which is to be found in the middle of paragraph 6 of the decision.

The Industrial Tribunal when considering that question, rightly directed itself to the case of British Airways Board v Clark and Havill [1982] IRLR 238 at page 240 paragraph 17 which reads:

" We are satisfied that for a purpose of applying the limitation provision in s.24(2) it is necessary on the facts of this case to look at all the disciplinary decisions of which Mr Clark and Mr Havill wish to complain. These decision include the determinations of the appeals. It is clear from s.24(2) that a complaint may be made about more than one action by an employer and we do not consider that the decided cases concerning appeals where an employee has been dismissed provide any exact analogy."

It seems to us that the Industrial Tribunal was entirely right to have its attention drawn to this case, which shows that a complaint of action short of dismissal on grounds related to union membership or activities, may well include decisions which have been taken in an appellate process, unlike a complaint of unfair dismissal which is directed to the dismissal itself.

In those circumstances, having arrived at those conclusions, the question that was then before the Industrial Tribunal was whether it was reasonably practicable for the complainant to have presented his complaint within three months. That is to have presented his complaint in relation to the drawing up of the person specification and job description, of which he had full knowledge by the relevant date which the tribunal had determined, which was 6th September.

When dealing with this question, the Industrial Tribunal Chairman said this:

"6 ... It seems to me therefore that a more liberal view ought to be taken regarding this section and that it is not necessarily fatal to an employees case that he has not presented his Application within the period of three months prescribed by paragraph (a) provided that he does act promptly after the rejection of his complaint, or if the consideration of this complaint is dragging on for an unreasonable time, he presents an Application in order to preserve the position."

It is not at all clear to us whether the Industrial Tribunal Chairman is conflating the requirement of reasonable practicability and the discretion which the tribunal thereafter has under section 147(b). Furthermore, it seems to us that the Industrial Tribunal Chairman was wrong to suggest that the words in the statute should be differently construed depending on whether the complaint was that of dismissal on the one hand, or actions short of dismissal on the other. As we have already indicated, it is plain that the context in which the two questions arise may well differ, and the tribunal will wish to recognise that actions may be taken which can be linked together as part of a series. But it seems to us with great respect to the Industrial Tribunal Chairman, that thereafter, the process is precisely the same. The test is whether it was reasonably practicable.

It seems to us, having regard to his findings of fact, that having reached the position that the application had to be put in within three months of the 6th September, the tribunal should have concentrated on asking itself why it was that the complaint was not presented within time. It appears to us that if that investigation had been properly carried out the only conclusion which the Industrial Tribunal could arrived at is that it was reasonably practicable for this complainant to have presented his complaint within time. If his contention was that he preferred not to put in his complaint until after the review had taken place, whilst that would have been perfectly understandable, nonetheless, he still had time within which to make his complaint to the Industrial Tribunal. Having decided to wait, presumably knowing of the three month time limit, it plainly became incumbent on him to get a move on and to present his complaint within that three month period.

We have had drawn to our attention two authorities which we think possibly of somewhat limited assistance, although it does give a flavour of the attitude of the courts to the approach to the words "reasonably practicable". The first one is called Bodha (Vishnudut) v Hampshire Area Health Authority [1982] ICR 203. This case was decided by the Employment Appeal Tribunal and was expressly approved by the Court of Appeal in Palmer v Southend on Sea Borough Council [1984] ICR 372. In the latter case at page 384E-F the Court of Appeal said this:

" However in Bodha's case [1982] ICR 200 Browne-Wilkinson J also said at p. 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 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 took restrictive a construction.

In the end, most of the decided cases have been decision on their own particular facts and must be regarded as such. 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."

Just pausing there, it seems to us, that the Industrial Tribunal in this case may have fallen into that trap.

"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. ... In the context which the words are used in the Employment Protection (Consolidation) Act 1978, however ineptly as we think, they mean something between these two. Perhaps to the word "practicable" as the equivalent of "feasible" as Sir John Brightman did in Singh's case [1973] ICR 437 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."

It seems to us that the Industrial Tribunal Chairman has not asked himself the relevant question. He has sought to construe the words "reasonably practicable" in a way different from that which has been adopted by the Courts so far as we are aware in every other case which we have seen here. Whilst we quite understand his desire to give effect to good industrial relations practice of employee pursuing their grievances in-house before making complaints to Industrial Tribunals, he ought to have recognised in our view, the scope which is given to employees in a situation of the kind in which this applicant found himself, of treating actions against him as part of a series, and having the last action of which complaint is made treated as the moment from which time runs. It is in that way that Parliament has given effect, as it seems to us, to the sensible industrial relations practice which is to be encouraged. Secondly, it seems to us in any event, that whilst it may have been reasonable for the employee to have waited until after 22nd November, that does not satisfy the test of what is reasonably practicable. See Palmer. Furthermore, having decided to wait that long, it then became necessary for him to move with lightening speed.

In so far as the case of Birmingham Optical PLC v Johnson [1995] ICR 459 at page 464D is concerned, whilst it may be distinguished on its facts, nonetheless what is said in the paragraph between D-F is pertinent:

" So that was the situation. There was an arrangement entered into in good faith, which made it obviously highly inappropriate, or might be thought to, that the applicant should immediately issue proceedings against his former employers. Was it, in those circumstances, not reasonably practicable for him then, or in the foreseeable future while the arrangement continued, to present his complaint timeously. There are at least two things to be said about that. First and foremost, this was a matter of commercial convenience and interest. There are a very great many situations in which people find it inconvenient to the point of impossibility to present a complaint or issue a writ or take other hostile action against another person, because their interests lie too closely together, and the damage done would be likely to exceed any benefit accruing. That, in our view, cannot by itself amount to something which is close to duress, something which makes it not practicable to issue the write or make the complaint. It is something which makes it not convenient to do, as in general commercial consideration."

This gives the correct flavour, as it seems to us, to the way in which the words "reasonably practicable" should be construed in the light of the Court of Appeal's leading decision in Palmer.

The explanation for the delay between 30th November, when the applicant was aware of what had happened on 22nd November, and the presentation of his complaint is dealt with by the Industrial Tribunal at paragraph 7:

"7 ... It seems to me that the Applicant was entitled to wait until the result of the hearing on 30 November ... it was not reasonably practicable for him to present the complaint before the end of the period of three months ... because he was actively pursuing his grievance and thereafter was actively seeking a meeting with officials ... to discuss the matter further."

Also, I think, he was indicating that during that period he was seeking to take legal advice.

It seems to us reasonably clear, that had the Industrial Tribunal applied the correct test, there was only one answer to this case; which is that even thought the conduct of the complainant may have been reasonable, the test is one of reasonable practicability, in the sense in which that term has been defined, and in those circumstances applying that test, it was obviously reasonably practicable for the complainant to have presented his complaint within time.

That being so we are clear that the Industrial Tribunal has misdirected itself. We shall allow the appeal and this is a case where we should substitute our own decision for that of the Industrial Tribunal Chairman, who if he had properly directed himself, I have no doubt, would have arrived at exactly this conclusion.

Accordingly the appeal is allowed and the finding is made that the application which was presented to the Industrial Tribunal was presented out of time.