United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NORTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: The parties to the appeal that is before us today are a Mr Turner and the London Borough of Havering. Mr Turner appeals against a decision of an Employment Tribunal sitting at Stratford.

1. The Chairman of the Tribunal was Judge Prophet and the two Members were a Mr Gibbs and a Mr Hughes. The decision of that Tribunal was as follows:

"The unanimous decision of the Tribunal is that, on a preliminary issue, the complaints in respect of unfair dismissal, and providing written reasons for dismissal, were not presented before the end of the period of three months beginning with the effective date of termination, and the Tribunal is not satisfied that it was not reasonably practicable for the complaints to have been presented before the end of that period. Accordingly this application in respect of these two complaints can proceed no further."

2. Before going on with this judgment I should say now, so that Mr Turner is not left in suspense, that we will be allowing this appeal to go forward. We have concluded that there are points of law that are reasonably arguable which should be considered by this Tribunal.
3. This is not the first occasion that the issue as to whether or not Mr Turner brought his claim in time has come before the Employment Tribunal or, indeed, this Tribunal. The question whether the applications were in time and whether time should be extended was the subject of a decision by a Chairman of an Employment Tribunal sitting alone on 9 January 1998 and his reasons were sent to the parties on 10 March 1998. That Chairman was a Mr Hossain. It was common ground that the application was not brought within the three month period set by section 111; that simply appears from the date. He however decided, pursuant to that section, that nonetheless Mr Turner should be permitted to proceed with his applications.
4. There then followed an appeal to this Tribunal. That appeal was successful and remitted the matter to the Employment Tribunal for reconsideration and recommended that a Chairman should not sit alone. We have not seen the actual order made by this Tribunal and that indication of the result and thus the terms of the order flows from the judgment of this Tribunal which we have seen. That judgment was given on 25 November 1998. The Tribunal comprised His Honour Judge Pugsley, Mrs Marsland and Mr Parker. Their reason for allowing the appeal was that Mr Hossain, the Chairman of the Employment Tribunal, had misapplied the statutory test in section 111 of the Employment Rights Act. Section 111 of the Employment Rights Act is in the following terms:

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

(2) Subject to subsection (3), an employment 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."

5. This Employment Appeal Tribunal decided that Mr Hossain had approached his task under that section incorrectly by simply asking himself the question "What was reasonably practicable?" whereas as can be seen from the section two questions arise. The first question is "Was it reasonably practicable for the complaint to be presented within the three month period?". Second question is that, "If it was not reasonably practicable so to do, is it still reasonable for the complaint to be allowed to be presented and thus proceed?". That this was the approach of this Tribunal which appears from page 4 F to 5 A of the judgment of this Tribunal which is in the following terms:

"We regret to say that in our considered view this is a fatally flawed decision. Fatally flawed because although the Tribunal had accurately stated the Statutory provisions it then went on to mis-state, on more than one occasion, the test to be applied. We are well aware of those decisions that quite rightly say it is not for an Industrial Tribunal's reasons to be combed with myopic and microscopic attention to see if there is some minor misdirection lurking somewhere in the subsidiary paragraphs of a decision. Moreover we are well aware of the expense and the human misery of cases being remitted back to Industrial Tribunals. But unfortunately, as far as this case is concerned there was, in our view, a fundamental misdirection which goes to the very heart of the decision making process.

In Paragraph 1 of his Extended Reasons the Chairman stated the issue to be:

'Was it reasonably practicable for the Applicant to present his complaints within the statutory time limits?'

That was a correct statement of the first part of the statutory test but it ignored the second part of the test. Paragraph 7 reads as follows:

'...The statutory three month time limit having admittedly expired, the burden is upon Mr Turner to show that it was not reasonably practicable for him to bring these claims until the time that the application was presented.'

At Paragraph 9, the decision states:

'It would follow that the only issue for me to decide is whether it was reasonably practicable for Mr Turner to present his application before the 22 August 1997.'

The same error is repeated at Paragraphs 13 and 16.

The issue, quite simply, is this: there is a twofold test and the test of reasonable practicability and the test of what is reasonable are different tests, though one accepts the very skilful argument put forward to us by Ms Alexander that in some ways the reasonably practicable test is in many circumstances a more difficult one for an applicant to cement. But there are two tests.

The two tests raise different issues. It is not difficult to envisage situations where someone was struck down, be it by trauma or by medical misfortune, who was not conscious for a period of three or four months thus rendering it not reasonably practicable for them to present an Originating Application to a Tribunal. But thereafter the test moves and a Tribunal is under a duty to consider whether it was reasonable and that involves a consideration of the position of the Applicant employee and of the Respondent employer. The Tribunal has an overwhelming discretion - an overriding discretion - when it is to determine the issue of reasonable practicability to consider the further period it considers reasonable. There is no evidence at all, and all the indications are to the contrary, that those considerations were ever matters that the Chairman dealt with."

6. It follows that it was not part of the reasoning of this Tribunal that the decision reached by Mr Hossain on the first question posed by s. 111 namely his decision that that it was not reasonably practicable for Mr Turner to bring his case within the three month period was perverse or incorrect.
7. Given that background it is to our minds therefore very understandable that Mr Turner should feel aggrieved at the most recent decision of the Employment Tribunal. This is because this most recent decision is one in which that full Tribunal reach a different conclusion on the first issue posed by section 111, namely: "Was it reasonably practicable for Mr Turner to present his claim within the three month period referred to in the section?".
8. At the heart of the reasoning of the most recent decision of the Employment Tribunal is, as we read it, paragraph 11 of their Extended Reasons which is in the following terms:

"11 Undoubtedly Mrs Turner has been extremely supportive of her husband but we remain unconvinced that the Applicant himself was so ill as to prevent him having taken the necessary steps, with the assistance of either his wife or the union, to have presented a complaint in respect of unfair dismissal or of written reasons for dismissal within the three month period. All he had to do, if he considered in some way that his termination of employment was unfair, was to set matters in motion. If perhaps the nature of his illness had meant that for some time he would have found actually attending at a Tribunal hearing unduly stressful, that could have been taken into account by the Tribunal itself on the presentation of appropriate medical evidence."

9. As we read that paragraph the Employment Tribunal are making a distinction between presenting a claim and prosecuting a claim. The point they are making is, as they put it, that simply setting matters in motion is a different thing to prosecuting the claim. Albeit that (perhaps somewhat unwillingly) they are accepting that Mr Turner would not have been in a position to prosecute the claim, they conclude that it was reasonably practicable for him to have presented it (and thus set it in motion) and then to have applied for an adjournment.
10. We pause to comment that the uncontradicted medical evidence before that Tribunal was to the effect that during his illness Mr Turner was not in a position to prosecute his claim. That appears, for example, from a letter from his general practitioner, a Dr Wong dated 13 April 1999, which ends with the paragraph:

"From the time of his ill health he was certainly not in a fit state to pursue a case in the Law Courts."

The other medical evidence is supportive of that view.

11. As is apparent from the earlier part of the Extended Reasons of the Employment Tribunal in reaching the conclusion that they did, they relied on (a) letters written by or on behalf of Mr Turner prior to the expiry of the three month time limit, (b) as we understand it, certainly one letter (and perhaps more) letters written after that date and (c) contact between Mr Turner and his Union after that date.
12. Further, as we understand it, from the submissions made to us today by Mr Turner, those letters were not before Mr Hossain and at some stage (and we are unclear when) those letters were admitted into the reconsideration of this matter by the Employment Tribunal following the successful appeal to this Tribunal against the decision of Mr Hossain.
13. We have set the background out at some length in this judgment on a preliminary hearing because it seems to us that it is important to identify why we consider that this matter raises reasonably arguable points of law. I confess that when I first read these papers and read the Extended Reasons of the Employment Tribunal chaired by Judge Prophet, it seemed to me that Mr Turner had a difficult, if not impossible, task. However, further consideration of the matters have led me to consider, and my two colleagues to agree, that reasonably arguable points do arise on this appeal which need careful consideration. I identify them in the following paragraphs.
14. The first is, it seems to us, a straight argument of law and that is whether the distinction made by the Employment Tribunal in connection with the "reasonable practicability" test between presenting or setting a claim in motion and its prosecution and thus proceeding with the claim is a valid one, both in the circumstances of this case and generally. It seems to us that it is at least reasonably arguable that in making that distinction the Employment Tribunal erred as a matter of law.
15. The second point which seems to us to be reasonably arguable as a matter of law, is the question whether it was open to the Employment Tribunal, under the chairmanship of Judge Prophet, to revisit the issue decided by Mr Hossain as to the first limb of the test, namely was it reasonably practicable to issue the proceedings within three months (and as to this I refer to Aparau v Iceland Frozen Foods Court of Appeal 23/11/99 which has been brought to my attention after the preliminary hearing). As we understand it, this was not a point taken before the Employment Tribunal, nonetheless given the history of this case it seems to us that it is a point that needs to be considered further. Relevant to that consideration will be the precise terms of the order made following the decision of this Tribunal on the earlier appeal. Naturally, the reasoning of this Tribunal thereon is also relevant. We have already indicated that that reasoning focused upon the conclusion of this Tribunal that Mr Hossain had not correctly addressed his mind to the second part of the statutory test, namely, was it reasonable for Mr Turner not to have issued his proceedings until, I think, the date is August 1997?
16. The third point which seems to us to be reasonably arguable arises on the assumption that it was open to the Employment Tribunal to reconsider the first question posed by s. 111 and thus the issue of reasonable practicability, and is whether or not the Employment Tribunal erred in law in the manner in which they dealt with the evidence. As we understand it Mr Turner did give some oral evidence but was not permitted to read out his statement and expand it in chief. He was represented by somebody from the Free Representation Unit. The points which, in our judgment, warrant consideration are that given the circumstances of this case, namely that the employers were introducing correspondence which they said indicated that Mr Turner was capable at least of presenting his claim, whether the Employment Tribunal should have given Mr Turner an opportunity to call his wife to describe the circumstances in which those letters were written or to invite the comments of the relevant doctors as to what those letters indicated, having regard to the common ground between all of the doctors that Mr Turner was suffering from a depressive illness and, as we read the medical evidence, was not in a position to prosecute a claim even if one had been presented.
17. The fourth point which is connected to that third point is the one which Mr Turner focuses on predominantly which is to the effect that the conclusion reached by the Employment Tribunal was simply a perverse one, having regard to the medical evidence placed before it. If we may so say at this stage, it has not struck us that that is Mr Turner's best point but it is not one that we consider he should be precluded from pursuing on this appeal.
18. Fifthly, in their Extended Reasons the Employment Tribunal, although not recording it in the citation of their decision at the beginning of their judgment in paragraph 13, reach a conclusion on the second limb of section 111 in the following terms. They say this:

"13 If we are wrong in respect of the above conclusion and the first test has been met we would add that we would have accepted Mr Themis' submission that there were opportunities thereafter when undoubtedly it became practicable for the complaint to have been submitted prior to 22 August 1997. In particular the Applicant was writing again to his employers in July 1996, this time threatening to take legal advice. The Tribunal would have found, had it been necessary to do so, that any further reasonable period after the expiry of the three month period ended in the Summer of 1996."

19. As to that alternative finding, it seems to us that two points of law are reasonably arguable. The first is the one we have already mentioned as to whether in respect of this second limb of the test under section 111 the distinction between presentation and prosecution is a valid one and how it should be taken into account in respect of the second part of the statutory test, if it does not found a finding against Mr Turner on the first part of the test. Secondly, it seems to us to be reasonably arguable that in that paragraph the Employment Tribunal fall into the same trap that Mr Hossain was found to have fallen into by this Appeal Tribunal on the earlier appeal, because they simply consider one side of the equation and, indeed, in dealing with it they too refer to it becoming "practicable" rather than to it becoming "reasonable", or to it not being reasonable to extend time to 22 August 1997.
20. In his Notice of Appeal Mr Turner raises grounds in 21 paragraphs. We think that thus far we have covered paragraphs 1 to 18. Given the fact that Mr Turner is not represented we do not propose to indicate that he cannot pursue any of those paragraphs 1 to 18. We express the hope that the full Tribunal that hears this case will be assisted by our identification of the issues arising from paragraphs 1 to 18 of Mr Turner's Notice of Appeal.
21. It seems to us that there is no need for Mr Turner to amend his Notice of Appeal at this stage to raise the grounds we have identified. One exception to that is that we have indicated that it seems to us to be reasonably arguable that the Employment Tribunal should not have revisited the issue of reasonable practicability. As to that, that is effectively an amendment of the Notice of Appeal and we give the Respondents liberty to apply for an order that that ground should not be pursued on the appeal. They can do that by way of interlocutory hearing or at the substantive hearing of the appeal.
22. That leaves paragraph 19 of Mr Turner's Notice of Appeal which is in these terms:

"The tribunal would not let me address them directly, when I attempted so to do."

The Chairman has commented on that and the comment is to the effect that Mr Turner was represented at the Tribunal. For that reason the Employment Tribunal required that all representations should be made through that representative. In our judgment this ground raises no reasonably arguable point of law or any reasonably arguable point of law based on bias or incorrect procedure or unfairness. It seems to us that it was perfectly open and proper for the Tribunal to proceed on the basis that submission and representation should be made through Mr Turner's representative. We have therefore concluded that that ground of appeal is not reasonably arguable and it should be struck out.

23. Paragraphs 20 and 21 of the grounds of appeal refer to the position as to an application for costs. The Chairman of the Employment Tribunal has provided helpful comments upon that which, as we understand them, indicate that it is not within the power of the Employment Tribunal or this Tribunal to make the costs order sought and that application should be made to the DTI. It seems to us that this matter should be left in play and on the appeal the relevant documents can be looked at by the Tribunal and the point dealt with. It is apparent from what I have just said that if this had been the only ground we would have considered it further at a preliminary hearing stage.
24. Finally I should mention that Harvey at paragraph T 213 supports the approach of this Tribunal on the first occasion as to how the issue of reasonableness within the test of section 111 in distinction to the question of reasonable practicability should be approached.
25. There remains the matter of giving further directions. It seems to us that this case should be given Category A and should be heard by a Tribunal chaired by a High Court Judge or the President. It should be given a time estimate of a day. Given the fact that Mr Turner is at present not represented, although we suspect little turns on the point, we think it would be helpful if the Chairman was invited to provide notes of the evidence. As we understand it that is simply Mr Turner's evidence.
26. A final point that I would wish to mention in this judgment is that Mr Turner read to us today from a prepared statement. It seems to us that if he has to present this appeal on his own that will cause him some difficulty and potentially considerable upset and unnecessary stress. Mr Norton has appeared before us under the ELAAS scheme. We are grateful for his assistance and the focus he placed upon certain of the points of law we have identified. He very helpfully has assured us that he will discuss various options with Mr Turner relating to representation. One of those is applying for Legal Aid. If Mr Turner is within the financial limits we would express the view that it would be of assistance to this Tribunal if Mr Turner were to be granted legal aid so that he could be represented on the final determination of this appeal.