United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS M PLIMMER (of Counsel) Messrs Maidments Solicitors St John's Court 74 Gartside Street Manchester M3E 3EL
For the Respondents	MS G COX Secretary Management Committee Hideaway Youth Project 47 Upper Lloyd Street Moss Side Manchester M14 4HY


 


JUDGE J HICKS QC: The Appellant, Mr Liburd, was employed by the Respondents, Hideaway Youth Project, from 3 February 1997 until he was dismissed on 30 January 1998. He presented on 29 April 1998 an Originating Application complaining of unfair dismissal, wrongful dismissal and unauthorised deduction of wages. The complaint of unfair dismissal was later withdrawn and, on the basis of that withdrawal, dismissed.

1. On 8 June 1998 he sent a communication by fax to the Employment Tribunal raising three matters, or divided into three sections.
2. The first consisted of a particularisation of his claim for breach of contract in paragraphs 1.1 to 1.7.
3. The second, in paragraphs 10 to 13, was in substance an application to amend his Originating Application in order to rely, not on matters arising out of the original dismissal which was the subject matter of his application as originally lodged and the original disciplinary hearing of which he then complained, but on matters concerned with an internal appeal hearing.
4. The third section in paragraphs 14 and 15 was in substance an application to include complaints under the Race Relations Act 1976 of racial discrimination.
5. The matter was dealt with by a Chairman of Employment Tribunals, on whose behalf a letter of decision was written to Mr Liburd on 16 June 1998, and by that letter the Chairman granted the application to amend the Originating Application by adding the allegations concerning the appeal hearing, paragraphs 10 to 13, but refused to allow the amendment to add a fresh claim for race discrimination because that claim was, as the decision letter says, "out of time".
6. Thereafter there was a fairly complex procedural history, most of which is not particularly relevant to this appeal and which can therefore be summarised, quite briefly, by saying that at various stages and by various means Mr Liburd was first of all allowed to add a racial discrimination claim arising out of the appeal hearing, which was not out of time, but then later dropped all his allegations about the appeal hearing, both so far as they went to wrongful dismissal and so far as they went to racial discrimination and issued a fresh Originating Application relating to racial discrimination arising out of the original disciplinary hearings. In that state of affairs it was directed that there be a preliminary hearing of the question whether the Employment Tribunal had jurisdiction to entertain that claim, having regard to the provisions of section 68 of the Race Relations Act 1976.
7. The position that the Employment Tribunal had to deal with can conveniently be summarised by referring to paragraph 20 of its Reasons, which is not challenged. The Tribunal says:

"20. The acts which the applicant now complained of against the respondents in his originating application took place on 30 January 1998 when he was dismissed by the respondents. In these circumstances the statutory time period for the presentation of his complaint of unlawful discrimination contrary to the 1976 Act expired at midnight on 29 April 1998. Since his complaints had only been presented on 19 June 1998 they had clearly been presented out of time and an Employment Tribunal has no jurisdiction to determine them on their merits unless we considered that it was just and equitable to do so. The burden lay upon the applicant to establish, ie to prove, that it was just and equitable for us to consider his complaints."

8. So the Tribunal's decision in those circumstances turned entirely on whether it was just and equitable to extend the time and the relevant provision of the Act for that purpose is subsection 6 of section 68 which reads:

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

9. So the only test imposed in terms by the Act is whether it is just and equitable to extend the time and that must be considered in all the circumstances of the case.
10. Ms Plimmer for Mr Liburd and Ms Cox for Hideaway Youth Project agree, as we do, that the principles applicable in the exercise of that jurisdiction are conveniently set out in paragraph 8 of the report of British Coal Corporation v Keeble & Others [1997] IRLR 336, a decision of this Appeal Tribunal, in a judgment delivered by Mrs Justice Smith. Reciting the previous course of the proceedings in that case she says, a little way into that paragraph, at page 338:

"The EAT remitted the case for rehearing, 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 cases 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 co-operated 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."

11. Mrs Justice Smith went on to say that that decision was not appealed, nor had it been suggested to the Appeal Tribunal in the hearing before her and her colleagues that that guidance was erroneous. Moreover, as I have said, both Ms Plimmer and Ms Cox before us agree that that is a useful and indeed correct summary of the approach to be taken and we also agree.
12. So, to summarise, all the circumstances must be taken into account which must, of course, mean all relevant circumstances, but within the general duty to take account of all of the circumstances there are two broad areas of consideration. First, the question of the prejudice, or rather the balance of prejudice, as it is said, which each party would suffer if the decision went against it and secondly, what is there described as "the checklist" derived from the analogous jurisdiction under section 33 of the Limitation Act 1980.
13. Ms Plimmer and Ms Cox also agreed, and again we concur, that in the light of the analogy drawn there with the jurisdiction under section 33 of the Limitation Act 1980, it is helpful to note some observations on the latter in the case of Hartley v Birmingham City District Council [1992] 2 All ER 213, a case directly concerned with section 33 of the Limitation Act. Ms Plimmer drew our attention in particular to page 224g in the judgment of Parker LJ in the Court of Appeal, in which he said:

"In my view however, as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision, the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."

14. The reference to "balance" there must, as we see it, be understood as being to the fact that the respective prejudices to the two sides are in some sense mirror images of each other. We do not think it can be understood to mean that those respective prejudices always balance in the sense that they are always of equal preponderance. The headnote to Hartley v Birmingham City District Council might give some colour to the idea that it is that latter equality of balance which is being referred to, but that does not make any sense because assessing the relative weight of the prejudice on each side is exactly the operation which is envisaged in British Coal Corporation v Keeble by the reference to "the prejudice which each party would suffer".
15. Ms Plimmer also referred us to a passage at page 225b in the same judgment, in which Parker LJ quoted and approved a passage in Preston & Newsom's Limitation of Actions which, with one very slight emendation made by Parker LJ, reads as follows:

"… a defendant will normally suffer prejudice if an order is made, but he will only have lost a windfall unless his ability to defend has been affected by the delay. … Consequently, if the delay does not seriously affect the evidence, the power [that is to say the power to extend] will generally be exercised."

16. Ms Cox referred us to two short passages a little earlier in that judgment, one at page 221e in which Parker LJ was quoting from the speech of Lord Diplock in Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 301 – 303:

"The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies on the plaintiff; but subject to that, the court's discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered. The conduct of the parties as well as the prejudice one or other will suffer if the court does or does not make an order are all to be put into the balance to see which way it falls."

Then again, on the same page at j, Parker LJ said:

"In exercising its discretion the court has not only to consider the respective degrees of prejudice to plaintiff and defendant but also the specific circumstances set out in (now) section 33 (3)."

that is to say what has been called in the British Coal Corporation case 'the check list'."

17. Those two passages in our judgment are of some significance as emphasising the distinction between what one might call "the prejudice issue" and "the check list issue", not of course that there is any absolute or watertight division - that would be to go against the requirement of the Act that all the circumstances must be taken into account. Those passages do however emphasise the fact that it will normally be necessary and appropriate to consider both the question of the balance of prejudice and the other matters dealt with in the check list and not to allow either to exclude consideration of the other. It is true that in Hartley v Birmingham City District Council what was being emphasised was that conduct must be considered as well as prejudice but the converse must equally be true, that prejudice must be considered as well as conduct.
18. It is also to be taken into consideration that of the check list item (b), the extent to which the cogency of the evidence is likely to be affected by the delay, may well be something which also goes to the issue of prejudice but that the other items in that check list are, to a greater or less extent and generally speaking to quite a large extent, independent of the issue of prejudice. Indeed, we entirely accept the burden of Ms Cox's submissions that in some cases it must clearly be open to a tribunal to refuse to extend because they perfectly properly, within the exercise of their discretion, give weight to items in the check list such as the absence of any defensible reason for the delay and regard those as being preponderant, notwithstanding that they have taken into account also the issues of prejudice which may, of themselves, possibly tend in the other direction.
19. That then is the way in which, in our understanding, the exercise of this jurisdiction should be approached and we turn to the way in which the Employment Tribunal dealt with it in this case. In paragraph 21 of their reasons, which is a long paragraph containing essentially the whole of their reasons on this point, they first of all refer to British Coal Corporation v Keeble and other passages in the authorities, but it is quite clear that the check list in British Coal Corporation v Keeble was very much in their mind because in dealing with the facts of the case and the relevance of those facts in their decision, they say as follows:

"In his evidence he [Mr Liburd] stated that the reason for the delay was that it had been an oversight on his part not to include the complaints in his originating application in which he complained of unfair dismissal, breach of contract, etc. This was clearly an unacceptable reason for his delay."

Pausing there, that is quite plainly their finding on item (a) in the check list. They then go on:

"Whilst it was clear that the cogency of the evidence to be given if his claim was allowed to proceed was unlikely to be affected by the delay [item (b)] and that there had been little, if any, delay in the respondents providing him with answers to his request for information, the applicant [item (c)] had been far from prompt in presenting this complaint; indeed he had not acted promptly at all. He believed in late January when he was dismissed that the respondents might have committed an act of unlawful discrimination in dismissing him and in the manner of dismissal. His opinion that they had done so had crystallised on or about 12 March 1998 yet he had not presented his complaint until 10 June 1998 [item (d)] nor had he taken any steps to obtain appropriate professional advice throughout this matter [item (e)]. "

And then they continue as follows:

"Bearing all those factors in mind we found that the prejudice to the respondents in permitting him to proceed with this complaint although it was out of time was far greater than the prejudice to the applicant in not allowing him to do so. We therefore found that it was not just and equitable that he should be permitted to proceed …"

20. We are forced to the conclusion that that shows an error of law on the part of the Employment Tribunal in approaching this matter because, having perfectly properly considered all the matters in the check list and reached conclusions on each of them to which there is no challenge, and could be no challenge, they do not then proceed to weigh up the matters which would affect and produce a finding as to the balance of prejudice but treat the check list items themselves as if they were the only factors that went to prejudice.
21. As we have pointed out earlier, one of them might arguably be and probably is relevant to prejudice but the others are really concerned with other considerations, chiefly the conduct of the Applicant, very relevant and material considerations but not significantly, if at all, bearing on the question of prejudice, especially prejudice in the relevant sense of whether there can be a fair hearing in the light of the delay which has occurred.
22. There is simply no separate consideration of the sort of factors which one would expect to find discussed in a consideration of the balance of prejudice and, in particular, no finding that the Respondents were in any materially greater difficulty in presenting their case at the date which would follow from the issue of an application in June, as compared with the position they would have been in had the application been issued within time.
23. We emphasise that the result on the issue of prejudice, even if on due consideration it had gone in favour of the Applicant, would not necessarily have concluded the matter in his favour. The Employment Tribunal were perfectly entitled, and indeed bound, to weigh that, if that were their conclusion, against the considerations the other way arising from their findings on the check list. But the error of law was to fail to embark upon that exercise at all so far as the balance of prejudice was concerned.
24. Ms Cox, in an extremely helpful and able submission, says that no reason or no defensible reason was advanced by the Applicant for the delay and that that is a necessary, although not a sufficient, condition for relief. We do not accept that. The Act imposes no separate requirement that there must be a good reason for the delay, although the absence of such a reason is manifestly a material circumstance, one indeed expressly mentioned in the check list, and that absence may be a very powerful consideration in the circumstances of particular cases and Ms Cox is perfectly entitled to argue that it is a powerful one in this case.
25. But we are not the tribunal which has to decide the issue of extension or no extension.

We are concerned only with whether the Employment Tribunal erred in law in the way in which it dealt with the matter. That consideration also answers Ms Cox's submission that to allow this appeal will open the floodgates to extensions where the applicant's delay is wholly indefensible but has caused no substantial prejudice to the Respondent employer, such as inability to prepare or marshal the evidence in response. It will not open any such floodgates because we are not deciding whether time shall be extended but only, as I have said, whether the Employment Tribunal was in error in the reasons given for its decision.

26. At a re-hearing the Employment Tribunal before which the matter is re-heard can be addressed on the very points which understandably concern Ms Cox and can, and no doubt will, take submissions of that kind into account. The appeal is therefore allowed and the preliminary issue of jurisdiction which, as I have said, is substantially the issue whether time should be extended, is remitted to a differently constituted Employment Tribunal.