United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	HELEN MOUNTFIELD (of Counsel) Bar Pro Bono Unit
For the Respondents	YAKUB RAHMAN (of Counsel) Messrs Lace Mawer Solicitors King's House 42 King Street Manchester M3 2NU


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Mrs Foley and Mrs Brownbill ["the applicants"] from a tribunal sitting at Liverpool who, in a unanimous decision, promulgated on 29 July 1996, dismissed their claims of sex discrimination as out of time on the basis that the applications were not presented to the tribunal before the end of the three month period beginning with the alleged act of discrimination, and that it was not just and equitable to extend time to consider those complaints.

I must apologise to the parties for the delay in the publication of this appeal decision.

The background facts of this matter can be taken from the tribunal decision. On 29 April 1994 the applicants were both dismissed from BICC Pyrotenax Ltd ["the employer"] on the ground of redundancy. They commenced proceedings claiming unfair dismissal and their cases were heard by an Industrial Tribunal sitting at Liverpool over two days in February and March 1995. The decision of the tribunal, which was promulgated on 25 May 1995, was that they had been fairly dismissed on the grounds of redundancy.

The applicants appealed against that decision and at a preliminary hearing before the Employment Appeal Tribunal on 8 December 1995 their appeals were dismissed. During that appeal hearing it was alleged by the applicants that the presiding judge commented that a claim for sex discrimination could have been brought by them. Accordingly on 21 March 1996 the applicants presented Originating Applications to the Industrial Tribunal claiming sex discrimination in the selection criteria for redundancy. A preliminary hearing was held on 16 July 1996 to determine whether the applications had been presented in time and if not, whether it was just and equitable that the claims should proceed. It is from that decision that the applicants now appeal.

At the hearing the applicants contended that they had presented their applications claiming sex discrimination outside the 3 month period because the first time that the issue of discrimination had been raised was at the appeal hearing of their claims of unfair dismissal.

The tribunal saw evidence taken from the files of the applicants' first solicitors, who were instructed with regard to the unfair dismissal proceedings. Two particular file notes were raised in evidence. The first note dated 6 August 1994 showed a record of a telephone conversation between the instructing solicitor and the applicants, and in part it stated:

"The women were treated differently, in a sense perhaps she should have put in a sex discrimination part of this application."

The second note dated 9 December 1994 was from a meeting between the instructing solicitor and counsel. The tribunal set out the following section:

"The client mentioned that they told Keith about the element of sex discrimination as well. Mr Golensky [sic] said that first of all we never mentioned this element before and secondly perhaps unfair dismissal would be the best course of action here."

The tribunal made the following findings:

"In this case the [discriminatory] act in question was dismissal which occurred in April 1994 and accordingly the Originating Applications should have been presented by July of that year. In fact, they were only presented in March 1996."

On the matter of whether it would be just and equitable to allow the applications to proceed, the tribunal made the following findings:

"18… The information that prompted the Judge at the Employment Appeal Tribunal to suggest that a claim of sex discrimination might lie is precisely that which was provided to the Solicitors acting for the applicants before the inception of the original proceedings. Indeed, the Originating Applications in the unfair dismissal proceedings make a passing reference to the issue which is at the heart of the claim of sex discrimination.

19. At the very latest, by September 1994 the applicants and their representatives had in their minds the possibility of a claim of sex discrimination but chose to take the matter no further.

20. This was not a case in which any "new" knowledge had come to the attention of the applicants or their representatives outside the original limitation period.

21. For the purposes of consideration of the "escape clause" we regard the applicants and their skilled advisors as one. If it was the case that the advisors were at fault in failing to identify that such a claim should have been brought … then it may be that the applicants have a right of redress against those representatives. That does not, in our view, render it just and equitable that the claim ought to proceed."

It was accepted by the parties before us that the applications claiming sex discrimination were presented outside the normal three month period beginning when the applicant's were dismissed. The issue to be decided was whether the tribunal properly directed itself and took into account all relevant factors in determining the question of the extension of the time limit.

The matter is governed by the Sex Discrimination Act 1975, and section 76 provides as follows:

"(1) An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

…

(5) 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 it to be just and equitable to do so."

Ms Mountfield, who appeared on behalf of the applicants, submitted that the tribunal erred in law in two respects; that they pursued the wrong approach in deciding the matter of 'just and equitable' by actually looking at what was 'reasonably practicable', and secondly the tribunal erred in considering that the erroneous advice given to the applicants by their legal advisors was irrelevant to the exercise of the tribunal's discretion as the tribunal considered the applicants and their advisors were to be regarded as 'one'.

On the question of the tribunal's discretion our attention was directed to the authority of Hawkins v Ball and Barclays Bank plc [1996] IRLR 258 in which it was held that the court's jurisdiction to grant an extension of time where it was 'just and equitable' to do so, was a broader discretion than under the 'reasonably practicable' formula. We accept in principle the proposition that a tribunal may strike out a claim of unfair dismissal for not being submitted within the 3 month period on the ground that it would have been reasonably practicable to submit the claim within time, but in the same circumstances allow a claim of discrimination to proceed because it would be just and equitable for it to be heard.

The second main ground of appeal was that the tribunal failed to take into relevant factors such as the fact that the advice given to the applicant's was erroneous. The judge in Hawkins held that where the obtaining of incorrect legal advice constituted a reason for the delay in presenting the application, that would be a relevant consideration in deciding whether it was just and equitable in all the circumstances to extend the time limit for a complaint. The argument put was that the tribunal failed to consider the guidelines of this case and instead only considered that it would not be just and equitable to extend time in this case because the solicitors had given advice, albeit wrong advice, and their mistake was taken to be the applicants' mistake.

Ms Mountfield submitted that recent case law had moved away from the days when applicants and advisors were assumed to be treated as one, such as in Dedman v British Building and Engineering Applicances Limited [1974] ICR 53, in which dicta suggested that an applicant was bound by the time limit mistakes of their skilled advisers. Instead the tribunal should have considered recent case law which has established that the skill of advisers was only relevant as part of the overall question of what was reasonably practicable in the circumstances.

Had the current legal position on legal advice been considered and the just and equitable test applied properly, it was argued that a reasonable tribunal would have concluded that it would not have been just and equitable to have prevented the applicants from pursuing their applications due to the errors of their advisors.

The employers accepted that the giving of incorrect advice could be a factor that the tribunal may wish to consider in deciding whether or not it was just and equitable to consider the applications out if time. However, it was submitted that the present matter was very different from Hawkins as in this case the question of whether the advice was negligent was far from clear. In any event, the question of whether the advice given was negligent or not was not one for the tribunal; instead it would be a matter for a civil trial. In those circumstances it was argued that it would not have been just and equitable to allow the applicants to bring their claims of discrimination so late.

Mr Rahman submitted that even if the tribunal decision was flawed because it failed to take into account relevant material, it would nonetheless be unjust and inequitable to allow the present complaints to proceed. The circumstances of the case, in particular the fact that even when the applicants claim they became aware of the discrimination claim in December 1995, they still delayed nearly 4 months before submitting their applications, would make it unjust to allow the matter to proceed. Clear findings of fact were made by the tribunal that the issue of discrimination was discussed between the applicant's and their representatives about six months prior to the hearing on the issue of unfair dismissal and the applicants had not brought any evidence to contradict the documentary evidence relied upon. Furthermore, there was considerable overlap between the new complaint of discrimination and the original complaint of unfair dismissal which was investigated in detail over a two day hearing and rejected. Finally, if the applications were allowed, the hearing would be dealing with evidence dating back to the period prior to April 1994, and that would prejudice the quality of the evidence to be given by witnesses. In support of his arguments he referred us to a number of cases including Berry v Ravensbourne National Health Service Trust [1993] ICR 871.

During the course of his submissions, Mr Rahman referred to the Limitation Act 1980. Section 33(3) of that Act requires the Court, in exercising its discretion to extend time for commencing actions in respect of personal injuries or death, to have regard to all the circumstances of the case, and, in particular, to a number of specified matters. The last two particular matters referred to in that subsection are:

"The extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

In the notes in the White Book reference is made to a judgment of the Court of Appeal in Halford v Brookes [1991] 1 WLR 428. Against this authority the editors have written:

"The court may permit an action to proceed under section 33 where the plaintiff, in ignorance of his legal rights has delayed in suing, and cannot be criticised for doing so, even though he knew facts on which a claim was available."

The factors specified subsection (3) are, mutatis mutandis, likely to be relevant to the Industrial Tribunal's determination of whether it is just and equitable to extend time. However, it would be wrong for Industrial Tribunals to be bogged down by reference to the various reported decisions on the application of section 33(3). A much broader based approach to the exercise of the tribunal's discretion is called for. Parliament anticipates that the industrial jury will take a common-sense view as to the exercise of a discretion conferred on the Industrial Tribunal in wide terms.

We accept the employer's argument that the tribunal did not fall into error in its consideration of the question of 'just and equitable'. The tribunal clearly state that they considered that it was not 'just and equitable' for the claim to proceed. In our view the tribunal looked at the matter as a whole, and in particular considered that the fact that no new evidence had come to the attention of the applicants outside the limitation period was instrumental in showing that the applicants and their representatives were or should have been aware of the possibility of a claim in sex discrimination at the outset of legal proceedings. The tribunal also paid close attention to the matter of the legal advice given. We would not accept the argument that because the tribunal considered that the applicants and their advisors could be regarded as one, the tribunal necessarily viewed the matter as a question of what was 'reasonably practicable'.

The tribunal were entitled on the facts of this matter to regard the advisers and the applicants as one as the documentary evidence showed that the applicants and their representatives had discussed the matter of a sex discrimination claim by the end of 1994. We would agree with Mr Rahman that the question of the accuracy of the advice was not a matter for the tribunal. Moreover, the tribunal were only charged with investigating the state of mind of the parties.

Ms Mountfield contended that the tribunal had to consider the mind of the applicants at the time of the first application, and since the applicants did not discover the possibility of a sex discrimination claim until the first appeal was heard, in those circumstances it would be just and equitable to allow them to pursue those claims. We find that the tribunal did consider the applicants' state of mind at the time of the first application and found that discrimination had been discussed with their legal advisers in September 1994. The tribunal were presented with documentary evidence, which was not disputed, which showed that the issue of sex discrimination was raised in September 1994.

We do not have the benefit of knowing what advice the solicitors representing the applicants gave them at that time or whether in fact was negligent or not. We consider that Hawkins was setting out the entirely common-sense proposition that where a legal advisor has erred in the advice given and an application is consequently out of time it does not automatically follow that the claim will not be allowed to proceed on the basis that a claim in negligence exists. The judge in that case put it as follows:

"The obtaining of incorrect legal advice may well constitute a reason for delay which has occurred and in those circumstances it is potentially relevant." [Emphasis added]

It may be the case that a claim against the advisers in negligence is not an adequate substitute, or there may be another pending claim with which the delayed claim can be consolidated so it would be just and equitable to allow the claim to proceed. That is clearly a matter of fact and judgment for the tribunal, to be considered in the light of all the circumstances of the case.

In any event we would wish to add that if the applicants' assertion that they did not learn of the possibility of the discrimination claim until the appeal hearing on 8 December 1995 is true, it behoved them to act expeditiously and submit an Originating Application as soon as possible after the hearing. In fact the applications were submitted on the 29 March 1996, nearly 4 months later. Obviously, when deciding whether it was just and equitable to allow the matter to proceed, the tribunal was entitled to consider whether it was reasonably practicable in all the circumstances of the case for the applicants to get their applications in before they did. Again, that would be a matter of fact and degree for the tribunal to decide.

We have often reiterated that just because a tribunal has not mentioned all its processes of reasoning in its decision it does not mean that the tribunal have overlooked a particular point. In the present case we do not feel that the decision of the tribunal fell into legal error or was a decision which no reasonable tribunal could have come to, accordingly this appeal is dismissed.