United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A FULLWOOD (of Counsel) Messrs Irvings Solicitors 45 Breck Road Anfield Liverpool L4 2QS
For the Respondent	MR J CLAY (of Counsel) Messrs Rosenblatt Solicitors 9 -13 Andrew Street London EC4A 3AE


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal Chairman sitting alone who concluded that it was not just or equitable to extend time to enable the Applicant to present her complaint of unlawful discrimination on grounds of sex.

The Applicant was employed by the Respondent from June 1993 until she was dismissed as at 24 August 1996. At the time of her dismissal she was, to her employer's knowledge, pregnant. Her child being born on 23 December 1996. It is her case that shortly before her dismissal she had a threatened miscarriage and on her return to work after a short absence was told by her employer that she could not be kept on and that a replacement was being recruited.

Her complaint of unlawful discrimination and unfair dismissal was presented to the Industrial Tribunal on 17 January 1997, whereas the three month time limit for both complaints expired on 23 November 1996. Thus she had presented her complaint some seven weeks or so out of time.

The Industrial Tribunal Chairman decided to sit on his own to hear the question as to whether it was just and equitable for time to be extended. He was also concerned to consider whether it was reasonably practicable for her to have presented her complaint of unfair dismissal within the three month time limit and, if it was not, within what further period of time would it have been reasonable to have had such a complaint presented.

He concluded that it was reasonably practicable for her to have presented her complaint within three months and accordingly, in relation to her unfair dismissal complaint, it was out of time and the Tribunal had no jurisdiction to deal with it. In relation to the unlawful discrimination complaint, he concluded that it would be not just and equitable to extend time.

The Industrial Tribunal's decision was initially contained in a document which was sent to the parties and entitled 'Reasons in Summary Form'. That decision was sent to the parties in April 1997. Under the Rules of Procedure which govern the hearing of Applications before Industrial Tribunals, which are set out in the Industrial Tribunals (Constitution Etc.) Regulations 1993 schedule 1, the reasons for the decision of a Tribunal shall be given in summary form except in certain circumstances and, if those circumstances apply, the reasons shall be given in extended form. One of the circumstances is

"(a) the proceedings involved the determination of an issue arising under or relating to... the 1975 Act."

That is a reference to the Sex Discrimination Act 1975 which was the Act pursuant to which her complaint of unlawful discrimination had been presented.

Accordingly it was not open to the learned Chairman to give a decision which dealt with an issue arising under the 1975 Act in a decision in summary reason form even though it was permissible for him to give a decision in summary reason form in relation to the unfair dismissal complaint.

The matter came on for a preliminary hearing before the Employment Appeal Tribunal and in consequence of that hearing a letter was sent to the learned Chairman inviting him to give his reasons in extended reason form, which he subsequently did. We would like to say that we are grateful to the Industrial Tribunal Chairman for having complied with that request so as to avoid the necessity for us simply to send the matter back for a lawful decision.

At the time when the Industrial Tribunal was considering the matter he would not have had access to a decision of the Employment Appeal Tribunal in a case called The British Coal Corporation v Keeble & Others [1997] IRLR 336. The judgment in that case, it being a reversed decision, was handed down on 26 March 1997 but was not reported until the June edition of the IRLR reports. Accordingly the learned Chairman is not to be criticised for not being aware of this case and nor are the Applicant's advisors to be criticised for failing to draw it to his attention.

The learned Chairman's decision recites some of the evidence that was given to him on the occasion in question by the Applicant. The Respondents had written in to the Industrial Tribunal explaining that they would only wish to submit written submissions in order to avoid the expense of attendance. They said this in their letter to the Industrial Tribunal:

"It will be noted from the IT3 submitted on behalf of the Respondent that it is contended the Applicant did not file her application within the appropriate 3 month time limit. It is further contended that in view of the fact the Applicant sought advice from the Citizen Advice Bureau in September 1996 it was reasonably practicable for her application to have been submitted to the Tribunal within the relevant time period."

In the next paragraph they contended that the Tribunal did not have jurisdiction to deal with the Application. It will be immediately be noted that the burden of the contention made on the Respondent's behalf in this matter was directed to the unfair dismissal complaint, hence the reference to 'reasonable practicability'.

The Chairman, as it would appear, sitting on his own, received some oral evidence from the Applicant but he also had available to him a lengthy written statement from her which set out in great detail what steps she had taken following her dismissal. During the course of the appeal it has rightly been drawn to our attention, on the Appellant's behalf, that there is a divergence in the findings of fact made by the Industrial Tribunal from the written evidence that was presented by the complainant. In certain respects he has found as facts matters which are in conflict with what she had been asserting in writing. We do not have the notes of evidence in this case and are not able to say why it was that these divergences came about.

He concluded, on the evidence that he had heard, that she went about two weeks after her dismissal to the Citizens Advice Bureau, who advised her that she had no case because she had not been an employee for two years. She consulted a Solicitor in mid-December 1996 as a result of her becoming aware of an article or a piece of information which indicated that the two year qualifying period might not be relevant in her case, if it was the dismissal in some way related to maternity

The Tribunal Chairman noted and found that when she went to her Solicitors they told her that they would look through the case papers and put an Application in. It is not entirely clear whether the Application referred to by the learned Chairman was an Application (namely an IT1) or was, in the circumstances, in her mind at any rate, an application for maternity pay.

Her baby was born, as I have indicated, on 23 December 1996 and on 17 January she went to the Solicitors who suggested that she signed her IT1, which she did. The learned Chairman noted that under section 76 of the Sex Discrimination Act 1975 ordinarily Tribunals will not consider complaints after a period of three months before the complaint was filed. Section 76(5) of the Act provides that:

"A court or tribunal may nevertheless consider any such complaint... which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

The Chairman, having concluded that the Application was presented late, said that:

"It may well be that Miss Cuckson [the Applicant] was given bad advice in the early part of the three-month period. Equally, it may be that the way she expressed her claim to the relevant advice workers misled them. In either event, either she or they were responsible for the failure to present the application within that period.

Similarly," he was of the view "it may be that the solicitor she instructed in December acted negligently by failing to present the application at that time..." But that he should not reach a final conclusion on that in the Solicitor's absence.

In paragraph 23 he said this:

"In any event, as a result of the shortcomings of the Applicant and/or her advisors, the application itself was not presented until almost two months after the expiry of the three-month limitation period.

In those circumstances I did not consider that it was just and equitable that the complaint should be permitted to proceed and on that basis the Originating Application was dismissed."

The decision in British Coal Corporation v Keeble was something of a landmark decision in this jurisdiction. Effectively the Employment Appeal Tribunal had, on a previous occasion in that case, remitted the matter back for a re-hearing on the time question,

"...directing that the issue of whether it was just and equitable to extend time should be decided on the basis of the circumstances of each individual case after hearing evidence. The EAT also advised that the industrial tribunal should adopt as a checklist the factors mentioned in s.33 of the Limitation Act 1980. That section provides a broad discretion for the Court to extend the limitation period of three years in case of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to -

(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the party sued had cooperated with any requests for information;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

On the second occasion that the Employment Appeal Tribunal considered the Keeble case, Mrs Justice Smith noted that the original decision of the EAT had not been appealed and nor had it been suggested to them that the guidance given in respect of the consideration of the factors mentioned in section 33 was erroneous.

The appeal concerned the re-consideration of the facts by the Industrial Tribunal in the light of that guidance. The Appellant, British Coal Corporation, appealed the decision of the Industrial Tribunal saying, in effect, that they had arrived at a conclusion which was incompatible with the decision of the Court of Appeal in the case of Biggs v Somerset County Council. During the course of her judgment Mrs Smith J said this:

"Mr Napier [Counsel on behalf of British Coal Corporation] acknowledged that the discretion conferred by s.76(5) of the Sex Discrimination Act 1975 is very wide, much wider than that conferred by s.67(2) of the 1978 Act. He accepted that is as wide as the discretion conferred by s.33 of the Limitation Act 1980. He accepted that there are many reported cases under that Act in which a mistake of law or inaccurate advice given by a lawyer as to the state of the law has been taken into account in the exercise of the discretion to disapply the limitation period..."

The significance of this decision is reflected by the editors of Harvey on Industrial Relations & Employment Law in paragraph T279, at page T/100. They say this:

"the discretion to grant an extension of time under the "just and equitable formula" has been held to be as wide as that given to the Civil Courts by s.33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions."

The editors then refer to the Keeble case;

"Therefore, the tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all the other circumstances, in particular, the length and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued cooperated with any requests for information, the promptness with which the applicant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the applicant to obtain appropriate professional advice once he or she knew of the possibility of taking action."

Then they go on:

"Specific factual situations that have given rise to the grant of an extension of time include-

(1) the fact that the claim is additional to and overlaps with an existing timeous complaint which has not yet been heard,

(2) the fact that the delay in commencing proceedings is due to reliance on incorrect legal advice even though this would enable an extension to be granted under the stricter reasonably practicable test,"

Then a reference is made to a decision called Hawkins v Ball & Barclays Bank, which is a decision of the EAT reported at [1996] IRLR 258.

It was the Appellant's contention, therefore, that the learned Chairman has not correctly approached the exercise of his discretion in this case. He has not sought to weigh the relative prejudice to the parties nor has he, apparently, had regard to the factors referred to in the Keeble decision. On behalf of the Respondents, Counsel reminded us that the Industrial Tribunal Chairman had a wide discretion and therefore we should accord a wide margin of appreciation to his decision. We can only interfere, we were reminded, where we were satisfied that there had been a material misdirection in law; it was not our function to substitute our own weighing of the factors for that of the Industrial Tribunal Chairman who was entrusted with the decision.

It seemed to us, on the basis of the arguments presented to us, that this was a case where there has been a material misdirection. I have already referred to the way in which the learned Chairman approached this matter in the sense of giving a summary decision, but I also refer to the fact that he had chosen to sit on his own to hear and determine this issue. It seems to us that he was ill-advised to sit on his own, although he was not acting unlawfully by doing so. He was unwise because, sitting on his own, he was deprived of the opportunity of the wisdom and good sense that lay members can bring to the determination of issues such as these. They have experience of the work place and their combined wisdom and experience is likely to produce a decision which is respected by the parties.

As I have indicated, that is not a ground on which we have decided to allow the appeal because he was entitled to sit on his own, however unwise, but it does seem to us that he did not have the benefit of the decision in Keeble, also he did not have the benefit, if such it be, of considering the President's observations on the same issues in Rastall v Midlands Electricity Plc [1996] ICR 644. He has not weighed the prejudice to the parties. He has not sought to determine whether the evidence would have been less cogent as a result of the Application having been presented to the Industrial Tribunal some seven weeks out of time. It appears to us that he has relied and relied wholly on the fact that she had been to lawyers and may have received poor advice if not negligent advice from them. That was merely one factor for him to take into account out of the many considerations that a tribunal must look at when weighing the justice and equity of extending time.

It seems to us that it would be wrong for us to substitute our own judgment for that of the Industrial Tribunal and therefore we propose that the matter be remitted back to a full Tribunal to consider whether time should be extended in this case. They will have the benefit of the guidance offered to them by the Keeble decision and the Rastall decision and they will wish to weigh all the relevant factors when arriving at their conclusion. On that basis we are of the view that the appeal should be allowed, as there has been a material misdirection in law, and the matter remitted back to a freshly constituted Tribunal for further consideration.