United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S M RYAN REPRESENTATIVE
For the Respondent	MR C NUGENT (OF COUNSEL) MR P LAMBLE MESSRS LAMBLE WALSH SOLICITORS THE OLD CHAPEL GREENBOTTOM TRURO CORNWALL TR4 8QP


 


JUDGE SMITH:-

1. This is an appeal by the Applicant before the Employment Tribunal, Mrs Willing, against the decision of the Employment Tribunal held at Truro on 23^rd April 1998, the Chairman sitting alone, of which extended reasons were sent to the parties on 5^th May 1998, whereby the Chairman held that Mrs Willing's application alleging unfair dismissal against the Respondent, Mr Cottam, was out of time, and that the time limit should not be extended so that her complaint was dismissed. The Chairman refused the application of Mrs Willing to review his decision by further decision on 26^th May 1998.
2. It is common ground that the Appellant's Originating Application was not presented to the Tribunal until 24^th February 1998. The Chairman held that Mrs Willing, who is a professional nurse, and who was a staff nurse employed at the Carrick Lodge nursing home by Mr Cottam, had been summarily dismissed by a telephone message from Mr Cottam to Mrs Willing's daughter on 9^th October 1997. He records his findings in paragraph 2 of the decision. He rejected the Appellant's, Mrs Willing's, contention that it was not until she was handed Mr Cottam's letter of 10^th October 1997, which she stated she received by hand from him on 24^th October 1997, that her employment was terminated. That submission was rejected by the Chairman.
3. It is to be noted that by his notice of appearance in the proceedings, Mr Cottam did not seek to rely upon the contents of the telephone call to the Appellant's daughter as constituting his dismissal of the Appellant; rather it was his case that he had dismissed the Appellant, Mrs Willing, when he delivered the letter of 10^th October 1997 by putting it through the letter box at her address (although the Chairman records Mr Cottam as saying he sent the letter by post).
4. It was the Appellant's case that she did not receive the letter of 10^th October 1997 until Mr Cottam gave her a copy of it on 24^th October 1997. In those circumstances we should say straight away that we consider that the Chairman erred, with respect to him, in finding that Mrs Willing had been orally dismissed through the medium of a telephone call to her daughter on 9^th October 1997. Mr Cottam did not contend for such a result and, in our judgment, this would be a most unusual way of dismissing somebody since such a message delivered to a 13 year old child in such a manner cannot amount, save in wholly exceptional circumstances, to an effective communication of a dismissal. Because of the error which we consider he made in that respect, in holding that the dismissal was effected on 9^th October 1997, the Chairman never made any finding of fact as to when the letter of 10^th October 1997 was in fact received by Mrs Willing. Had he addressed his mind to this issue we are confident that he would have found that the letter was not in fact received by the Appellant until 24^th October 1997 when she was handed it by Mr Cottam. In due course, we will substitute a finding that that was the effective date of the termination of Mrs Willing's employment.
5. However, as the Employment Appeal Tribunal pointed out during the preliminary hearing before Mr Justice Charles and members of the Employment Tribunal on the 10^th February 1999, this by no means resolves the difficulties in the way of the Appellant's appeal. On the assumption that the effective date of the termination of Mrs Willing's contract of employment was indeed 24^th October 1997, as we hold that it was, she was obliged to present her complaint for unfair dismissal no later than the 24^th January 1998 to be within the 3 month period stipulated by section 111 of the Employment Rights Act 1996, whereas in fact she did not present it until a month later, that is to say on 24^th February 1998. We should point out that there can be no question as a matter of law of the fact that Mrs Willing was claiming to be entitled to six weeks notice as in any way extending the effective date of the termination of her contract. It is plain from the terms of the letter of 10^th October 1997 that her contract had been terminated with immediate effect. Thus her claim for outstanding pay in respect of six weeks' notice, which she made by in her letter of December 1997, was properly to be characterised as a claim for damages for breach of contract which did not have the effect of postponing the effective date of termination.
6. Thus, before Mrs Willing can demonstrate that she is entitled to succeed on this appeal, it is necessary for her to establish that there is a reasonable prospect that if the matter were remitted back to the Employment Tribunal, the Employment Tribunal might conclude that it was not reasonably practicable for her to have presented her complaint by 24th January 1998 and that it was reasonable not to have presented it until 24^rd February 1998.
7. In our judgment, this is the crux of this appeal. The Employment Appeal Tribunal at the earlier hearing ordered the Appellant to swear an Affidavit setting out the reasons why her application was not made to the Employment Tribunal within the 3 month period from 24^th October 1997, in effect, and to bring out any point she wished to make as to why the discretion to extend time should have been exercised in her favour. In her affidavit, she puts forward the following matters:-

(i) The shock of the dismissal had an adverse effect on her health. However, there is no medical evidence that her illness in any way disabled her from presenting her complaint in time and in any event it is clear that by the time she wrote her letter of 18^th December 1997 to Mr Cottam she was on the face of it fit enough to attend to her affairs as was pointed out by Mr Nugent in his skeleton argument. It has been recently held in Schultz v Esso [1999] IRLR 488, in the Court of Appeal, that an early period of even a disabling illness cannot constitute a fact which renders it not reasonably practicable to present a complaint within time, although different considerations may apply to the period immediately before the time limit expires. So there is no ground there shown by that point in the Affidavit.

(ii) There is a suggestion that legal advice which the Appellant received from solicitors on 20^th February 1998, after the expiry of the time limit, was or may have been erroneous or mistaken in some way. However, there are a number of points which are fatal to this amounting to a reason relating to reasonable practicability. First, it is well established that wrong legal advice given even before the expiry of the time limit does not render it not reasonably practicable for a complaint to be presented in time see Walls Meats v Khan [1978] IRLR 499, CA. In any event, the advice was given here for the first time a month after the time limit had expired and had the result seemingly that the complaint was put in very very quickly thereafter. Further there is an attendance note from the Respondent's solicitors who attended the hearing before the Employment Tribunal on 23^rd April 1998 to the effect that Mrs Willing had taken advice of some kind from the Citizen's Advice Bureau. None of this gives rise to any foundation for an argument that it was not reasonably practicable to present her claim in time.

8. However, the matter does not, in our judgment, end there. In her skeleton argument the Appellant seeks to rely upon what she claims to be a fundamental fact of which she was not previously aware, namely the introduction of the term "gross misconduct" by the Respondent Mr Cottam and his solicitors in correspondence with the Appellant's then solicitors in March 1998. She points out, correctly in our judgment, that there was no reference to "gross misconduct" any where in the letter of 10^th October 1997. As we were correctly told by Mrs Willing's representative, Mr Ryan, who presented the argument on her behalf today, the first reference to gross misconduct appeared in the letter from Mr Cottam's solicitors to Mrs Willing's then solicitors dated 19^th March 1998. There followed a notice of appearance, also dated 19^th March 1998, put in by the Respondent in which it was asserted that the dismissal was a fair dismissal for gross misconduct and in respect of which very detailed and lengthy particulars were given of the grounds upon which the employer, Mr Cottam, intended to resist Mr Willing's application for unfair dismissal.
9. With regard to the matters raised in the first few pages of that document up to and including paragraph 16, it can be said that such matters do not in substance go beyond an elaboration of the grounds put forward in the letter of dismissal, that is to say the letter of 10^th October 1997. However, in our judgment, the same certainly cannot be said of the allegations made in the subsequent paragraphs of that document, especially the allegations made in paragraphs 21 to 25 inclusive and paragraphs 27 to 33 inclusive. Those allegations on a fair reading amount to allegations of very serious professional misconduct by Mrs Willing in the carrying out of her duties as a professional nurse which she strongly denies.
10. It was in those circumstances that the Chairman sitting alone came to hear the matter by way of a preliminary hearing to decide whether Mrs Willing's complaint was in time and if not whether the time limit should be extended. It is of some importance to note, in our judgment, that Mrs Willing, who appeared in person at that hearing, had prepared a written statement dated 23^rd April 1998,(that is to say the day of the hearing) which is at pages 4-7 of our bundle. It is clear from a contemporaneous note that was taken by the Respondent's solicitor of that hearing that Mrs Willing began to read that prepared statement to the Chairman although it seems likely that she was not able to complete it.
11. From the terms of that statement it is apparent that the principal matter that Mrs Willing was then complaining about was the allegation that she had been guilty of gross misconduct. She wished to get across to the Chairman that that allegation, which she said was wholly untrue, had created a situation where she was obliged to pursue a claim for unfair dismissal in order to clear her name, since whilst that allegation remained unanswered it would make it impossible for her to get a job in nursing in the future and effectively put an end to her career.
12. In his address before us today, Mr Ryan amplified Mrs Willing's position. As follows it was his submission that there was nothing in the letter of 10^th October 1997 from which Mrs Willing could have appreciated that she was being dismissed for gross misconduct. At that stage, whilst she thought she had been treated unfairly by being dismissed at all in the way she had and that she therefore had a ground for claiming unfair dismissal, she did not appreciate and could not have been expected to appreciate that her employer was asserting that she had been guilty of gross misconduct. Thus, at that stage, her intention was to press the Respondent, Mr Cottam to pay her what she alleged he owed her and thus put an end to the matter, as appears from her letter to him on 18^th December 1997. It was pointed out to us by Mr Ryan and we feel that we can take judicial notice of this, that proceedings in the employment tribunal for unfair dismissal can be a stressful experience and it must be a matter of subjective judgment as to whether an employee wishes to go through such a procedure when he or she can perhaps more constructively move on to pastures new by getting employment elsewhere. However, he submitted that position drastically changed as far as Mrs Willing was concerned when the employer chose to justify her dismissal by reference to what the Appellant contends are false allegations of gross and very serious misconduct. Mr Ryan submitted that the emergence of such new allegations gave rise to a new ground of complaint with regard to Mrs Willing's dismissal of which Mrs Willing first became aware only on or about the 19^th March 1998 on receipt of the letter from the Respondent's solicitors and the notice of appearance. We, then referred Mr Ryan, in the light of his submissions to the Court of Appeal decision in Marler UK Limited v Anderson [1996] IRLR 163, a decision of the Court of the Appeal.
13. In that case the Court of Appeal held that an employee may be able to rely on more than one ground for complaining that a dismissal was unfair, and that when considering whether it was or was not practicable to present a claim in time and whether or not time should be extended, each ground giving rise to the complaint required to be separately examined by the tribunal in such circumstances. Lord Justice Waite dealt with the matter at paragraphs 26-27 of the judgment:-

"26. Dealing with the issue first as one of principle without reference to authority I have no doubt the submission of Mr Bowers is to be preferred. The nature of the employment relationship is such that employers will normally have a greater knowledge than employees of the particular circumstances giving rise to a dismissal. Although the informal procedure operated by the tribunals under which pleadings and discovery are kept to a minimum has advantages in speed and flexibility, it suffers from the disadvantage that the information necessary to enable an employee to know and understand the full circumstances of and notice for dismissal may emerge only slowly and gradually. As the picture unfolds the employee ought to be allowed the maximum opportunity of adding to or changing his grounds of complaints."

"27. The policy considerations relied on by Mr Richardson are of course entitled to the fullest respect but I do not regard them as conclusive. If employers wish to protect themselves from late claims presented by dismissed employees on the basis of newly discovered information, the remedy will in most cases lie in their own hands. They will see to it that the fullest information is made available to the employee at the time of dismissal and if proceedings follow, will ensure that their discovery is openhanded. The jurisdiction to entertain fresh claims brought on this basis of lately acquired knowledge is moreover one which an Industrial Tribunal in exercising their powers under Rule 13 and their fact finding role under 67.2 can be constantly expected to apply within sensible and proper bounds."

14. It was Mr Ryan's submission, assisted by the Employment Appeal Tribunal from the point of view of referring him to the relevant case of Marley, that the Chairman here should have considered whether it was not reasonably practicable for the Appellant to pursue her claim, to the extent that she sought to refute the allegations of gross misconduct, at any time before she became aware of those allegations as she only did on or about the 19^th March 1998, when she discovered for the first time that the employer was putting forward gross misconduct as the reason for her dismissal. Instead of that he simply rejected the claim as groundless and contented himself by saying without condescending to detail that he could find no grounds for finding that it was not reasonably practicable to present her claim in time.
15. Mr Nugent, counsel for the Respondent, who has presented his arguments both skilfully and moderately, submitted that Mrs Willing could not bring herself within the principle established by the Court of Appeal in Marley. He submits that the dismissal here from the word go was based on misconduct and thus the additional material in the notice of appearance did not amount to newly discovered information leading to a different ground for complaint within the principle of Marley. It was all part and parcel of the reasons originally given for the dismissal in the dismissal letter, although the label may have been different. He sought to distinguish the situation from Marley where the employee had come across a memo which led him to suspect that the true reason for his dismissal was not redundancy but the fundamentally different reason of capability in circumstances of alleged procedural and substantive unfairness. He further pointed out that there had been no application to amend the Originating Application by Mrs Willing so as to rely upon a further ground of complaint as contrasted with what happened in Marley. He submitted accordingly that even assuming that the correct effective date of termination was 24^th October 1997, as we hold it was, the Chairman's decision should be upheld, since the application remained out of time and there was no possible ground for a finding that it was not reasonably practicable to present it in time, since Marley did not apply on the facts. That is the summary of the submissions that he made to us today.
16. We have not found this an easy case. We have concluded that the decision of the Chairman, with respect to him, on this issue as well is unsatisfactory. We have already held that in our judgment he erred in finding a dismissal on 9^th October 1997 and was told the correct date of termination of Mrs Willing's contract to have been on 24^th October 1997.
17. We further hold that the Chairman failed to consider and make findings in respect of the question as to whether, in the particular circumstances of this case, Mrs Willing could establish that the introduction by the Respondent of an assertion that he was entitled to dismiss the Appellant for gross misconduct amounted to a new ground of complaint not known to her until the 19^th March 1998, which had the result, or may have had the result, that it was not reasonably practicable for her to bring her complaint in time, at least in so far as she alleged that the dismissal was unfair to the extent that it was based upon such allegations of gross misconduct.
18. Despite the powerful submission of Mr Nugent we can see some merit in an employee being entitled to pursue a claim for unfair dismissal which is otherwise out of time in circumstances where it becomes apparent that the employer is seeking to justify dismissal by belatedly bringing forward grounds of serious misconduct which had not been put forward at the time of the original dismissal.
19. In our judgment, for the Chairman simply to say that he was satisfied that there were no grounds upon which it was not reasonably practicable to present the complaint in time was an inadequate response by the Chairman. He had before him the written statement of Mrs Willing dated 23^rd April 1998, to which he makes no reference in his decision. Put at its lowest, in our judgment, Mrs Willing was entitled to know why she had lost on the point by way of sufficiently detailed reasons.
20. We consider, therefore, that the appeal should be allowed and the case should be remitted to a newly constituted employment tribunal, a fully constituted tribunal consisting of a chairman and lay members, to decide, on the basis that the contract of employment was terminated on 24^th October 1997, whether or not is was reasonably practicable to present the claim in time, in the light of the decision in Marley, and in the light of evidence which may be called before the employment tribunal on that issue. It may be that the result will be the same, namely, that the complaint is out of time and that it was reasonably practicable to present it within time. It may be that the result will be different. That is entirely for the employment tribunal to decide in the light of the evidence, and the submissions made to them.
21. Finally, we should mention that it emerged during the course of argument today, that the Respondent, Mr Cottam, may be prepared to withdraw any suggestion that Mrs Willing was dismissed for gross misconduct if she, on her side, were prepared to discontinue the proceedings for unfair dismissal. It may well be that, subject to the necessary rules being complied with in relation to such compromises, that would be a very sensible and satisfactory way of compromising these proceedings, which have now, through nobody's fault, become very protracted and stale.
22. We can very well understand the importance to a professional person of having her reputation cleared and it may be that a suitable form of undertaking in writing could achieve a sensible alternative resolution to this dispute. For the present, we direct that the appeal is allowed, and the case be remitted to a fully constituted employment tribunal to decide whether it was reasonably practicable to present the complaint in time in all the circumstances in the light of this judgement and what emerges at the new hearing.