United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J McCAFFERTY (of Counsel) Instructed By: Ms Sally Morris Solicitor 3 St Margarets Road Edgware Middlesex HA8 9UP
For the Respondent	MR D BROWN (of Counsel) Instructed By: Mr R D Cooper Messrs Farrer & Co Solicitors 66 Lincoln's Inn Fields London WC2A 3LH


 


MR JUSTICE CHARLES:

1. This is an appeal against a decision of an Employment Tribunal sitting at London (North) on 26 August 1999. The Extended Reasons for that decision were sent to the parties on 14 September 1999 and they record that:

"The unanimous decision of the Tribunal is that as the complaint of unfair dismissal by Mr Elasha was presented outside the time limit contained in section 111(2) of the Employment Rights Act 1996 and as it was reasonably practicable for the complaint to have been presented within that time limit the Tribunal has no jurisdiction to consider the complaint and the application is dismissed."

2. In reaching that decision the Employment Tribunal correctly had regard to and applied section 111(2) of the Employment Rights Act 1996. That section is in the following terms:

(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."

3. In reaching their decision the Employment Tribunal heard evidence from the Applicant who appeared in person. The Respondent below and before us, His Highness Prince Al Saud, was represented by Counsel. The Employment Tribunal made the following findings which are recorded in paragraphs 3 and 4 of the Extended Reasons which are in the following terms:

"3 We find from the evidence given by Mr Elasha that he was dismissed from his employment by the Respondent on 23 March 1999 after a serious contretemps between them whilst on holiday in Budapest. It was his evidence that in the late evening of 23 March 1999 he was made aware and understood that he had been dismissed from that employment in a phone call from the Respondent's Secretary in Geneva. 'I was in no doubt about it' he said to the Tribunal.

4 In early May 1999 the Applicant had cause to retain the services of a firm of solicitors. They not only advised him on a claim which his former employer the Respondent was raising against him alleging criminal misconduct but also on the matter of his dismissal advising him in the process that such dismissal from employment was a matter which he could test as to its fairness before an Employment Tribunal. The solicitors returned to this subject some time later in June, certainly in sufficient time before 22 June when the complaint of unfair dismissal should have been presented, and informed him of the time limit. Though he did have the claim the Respondent on his mind the Tribunal finds that there was no impediment to Mr Elasha completing an Originating Application form and presenting it within the time limit. The substantial cause of the late application on 23 June 1999 was that the Applicant failed to act with the promptness required despite his ready access to a professional source of advice. Well before 22 June 1999 he had the benefit of timely advice as to his right to complain and of how to enforce that right. It was, we find, reasonably practicable for him to have presented his complaint by 22 June 1999. The Tribunal has therefore no jurisdiction to hear that complaint."

As appears from those reasons the last day for bringing the claim in time was 22 June. The claim was therefore presented one day late to the Employment Tribunal.

4. The Appellant does not argue that, on the evidence he gave to the Employment Tribunal and those findings of fact, the Employment Tribunal erred in law in refusing to extend his time for bringing his claim for unfair dismissal. Rather the appeal is founded on the Appellant's contention that we should admit new evidence concerning his involvement during the three month period following his dismissal, that is between 23 March and 22 June 1999, in proceedings relating to the abduction of his children from Sudan to this country by his former wife.
5. At this stage I should say that during the proceedings, to avoid any difficulty arising from section 12 of the Administration of Justice Act 1960 and the Family Proceedings Rules, I put on my hat as a Judge of the Family Division and gave leave to refer to those proceedings in the Employment Appeal Tribunal proceedings to the extent that they are mentioned in the documents before us and in this judgment.
6. The Appellant's case in the Skeleton Argument presented to us is that, if that new evidence is taken into account, it was not reasonably practicable for him to present his claim before the end of the three month period. Indeed when the appeal was opened it was part of the Appellant's case that no reasonable Tribunal would, or could, reach a conclusion that the Appellant's time for bringing the claim should not be extended if the new evidence relating to the abduction and the abduction proceedings was before it.
7. We say at once that our view is that the new evidence that the Appellant seeks to introduce does not go that far. Indeed, we indicated when this appeal came on for hearing that this was our preliminary view and (in our judgment correctly) Counsel for the Appellant accepted during the course of her submissions that the new evidence does not satisfy the test which would enable this Tribunal to make the decision itself. This test is repeated and confirmed in a recent Court of Appeal decision, Kapadia v London Borough of Lambeth [2000] IRLR 699, (see in particular paragraphs 18 and 19 of the judgment of Schiemann LJ).
8. The primary reasons that we are of this view are that (i) in some respects that evidence, without further and proper explanation, conflicts with findings of the Employment Tribunal recorded in paragraph 4 of their Extended Reasons which were based, as I have said, on his oral evidence to the Employment Tribunal, and (ii) in our opinion there are gaps in that new evidence.
9. The conflict appears when paragraphs 3, 4, part of paragraph 19 and paragraph 20 of the Appellant's affidavit which sets out the new evidence he seeks to introduce are compared with findings made by the Employment Tribunal. These paragraphs of the affidavit read as follows

"3 Instead, on 6th May 1999 I received a letter from Mr Cooper at Farrer & Co enquiring about the sale of one of the Respondent's properties Beechwood and its contents, pursuant to instructions I had been given by the Respondent in 1985, (and which instructions I had faithfully carried out at the time). I consulted a solicitor about this correspondence but did not mention anything to him about my employment law problem. I replied to Farrer & Co on l1th May 1999 pointing out that the Respondent would not have waited 14 years to complain about anything he was not satisfied with. I exhibit hereto as 'EME2' a copy of this exchange of correspondence.

4 I was unsure what to do about my employment situation as I was in need of funds. I believed that after so many years of loyal service to the Respondent in difficult circumstances I must have some legal right of action. I spoke to several of my friends and was informed that I could pursue a claim in the Industrial Tribunal. One of them did mention to me that they thought there was a short time limit but I cannot remember if I was told that the time limit was three months or a few months. Whilst considering my future employment prospects and whether to pursue a claim against the Respondent, I heard on 10th May 1999 that my ex-wife and her second husband had left Sudan on 9th May 1999 and that she had abducted my three eldest children.

19 After the hearing on 22nd June I went to the North London Industrial Tribunal to collect a form of Application (IT1) as a friend had told me that he thought there was a three month time limit for such claims. I thought there were perhaps a few days until the expiration of three months since my dismissal. …

20 On the following day, (23rd June 1999) I personally completed the IT1 form and took it to the North London Industrial Tribunal office believing that I had lodged it on time. I had not received any legal advice on the completion or lodging of the application or indeed on the case at all. I put the name of Mr Asher of Vickers & Co on the form as I thought he would agree to deal with the matter for me at a later date. He is a property lawyer known to me but I had not asked him whether he would represent me in my employment tribunal claim."

The findings of the Employment Tribunal were to the effect that the Appellant had advice from a Solicitor as to his unfair dismissal claim. It is therefore the case that without any explanation as to why he says the Employment Tribunal were wrong so to conclude the Appellant in his affidavit asserts that he did not receive legal any advice relating to his employment claim and speaks of advice from a friend.

10. I pause to comment that I recognise, as submitted on behalf of the Appellant, that the finding of the Employment Tribunal does not identify the lawyer who was instructed and does not make a finding that he was specifically instructed or advised as to the time limit. It is however, surprising and unsatisfactory that there is a divergence between the findings of the Employment Tribunal and the additional evidence that the Appellant seeks to introduce.
11. Additionally the new evidence is short of particulars as to the amount of time the Appellant actually spent on the abduction proceedings and, to my mind more importantly, the Appellant's thinking as to his unfair dismissal claim during the course of those proceedings.
12. A brief chronology of the abduction and the abduction proceedings is as follows.

10 May The Appellant hears of the abduction.

18 May The Appellant saw a Solicitor he was not happy with.

24 May The Appellant saw another firm of Solicitors

28 May The Appellant was served with an Injunction which prevented him from removing the children from the United Kingdom; that injunction having been obtained by his former wife in proceedings in the Family Division.

I pause to comment that this is an Injunction that is often granted in proceedings of this type, pending them being heard in the United Kingdom. The purpose of the Injunction is to keep all the relevant adults and children in this jurisdiction until that hearing is completed.

31 May The Appellant changed his Solicitors in the abduction proceedings because the firm he had instructed did not have anyone available to deal with the hearing therein which was set for 4 June; that would never have been a final hearing, it was a return date in the Injunction proceedings.

4 June 1999 Directions were given in the abduction proceedings.

Between then and the hearing on 17 June the evidence in those proceedings had to be prepared; that evidence included statements from family members and friends and also, importantly, for the purposes of those proceedings, expert evidence. The Appellant's evidence is that he was closely involved in the preparation of that evidence. That involvement included the translation of documents from expert witnesses and, at the end of the day as I understand it from the relevant law report of the abduction proceedings, the expert evidence was agreed. I am happy to accept that all of that would take up a substantial amount of the Appellant's time.

17 June Mr Justice Connell heard the case

18 June Mr Justice Connell gave judgment in the case and ordered that the children be returned to Sudan. Accordingly, the Appellant won his case before Mr Justice Connell, who refused leave to appeal. Accordingly the Appellant started to try and arrange flights for his children to get them back to Sudan.

22 June The Court of Appeal granted leave to appeal.

24 June The Court of Appeal heard the appeal and dismissed it. We have not been given an exact date for the return of the children to Sudan but Counsel told us today that it was shortly after the final disposal of the matter by the Court of Appeal and therefore, we take it that they returned before the end of June.

13. Other relevant dates are as follows.

26 July The Appellant accepts that he saw the Solicitor who he had named in his IT1. He says that he was told by that Solicitor that he did not do employment work.

By that stage it is apparent that his children have been back in Sudan for a period in excess of three weeks and he accepts that he knew that there was a problem with his IT1 and we therefore take it that he knew that the problem was that he was one day out of time.

26 August As I have said, the hearing before the Employment Tribunal took place. This was therefore one month after he saw the Solicitor on 26 July.

14. Naturally, we accept, and I am pleased to record that it was not argued to the contrary, that the abduction of the Appellant's children and the proceedings relating thereto caused the Appellant considerable and continuing worry and concern. We also accept that through the period from 10 May until approximately the end of June, they would be at the forefront of his mind and his primary emotional concern, if not his only real concern. Nevertheless, as I have said it seems to us that, in addition to the conflict between his affidavit and findings of the Employment Tribunal, there are some omissions from the Appellant's affidavit as to his thinking concerning the presentation of his claim for unfair dismissal which, as the above timetable demonstrates, was presented between the two hearings in the Court of Appeal on 22 and 24 June, and on a date when as the Appellant in his affidavit states he thought he was presenting the claim in time.
15. It would be understandable if the Appellant thought that the relevant three month period expired on 23 June rather than 22 June which was the date for its expiry. However, he does not say that that was the reason, or part of the reason, why he went personally on that day to the Employment Tribunal to present his claim. He does not specify what he thought the expiry date was, or the advice that thinking was based on, or why he did not deliver the claim, for example, before the hearing on 17 June or between 18 and 21 June. Through all those periods we accept that he was heavily involved in the abduction proceedings but, of course, that comment applies equally to the position on 23 June.
16. All of these points to our minds lead to the conclusion that Counsel for the Appellant was plainly right to accept that we could not deal with the case ourselves. However, we accept that it is not for us to speculate as to how an Employment Tribunal would deal with the substantive issue of the case on reasonable practicability if the Appellant succeeds on the other part or limb of his appeal, namely that applying the relevant test as to the introduction of new evidence we should remit the proceedings to an Employment Tribunal.

The test for admitting further evidence

17. Counsel were agreed and we accept that the test to be applied by this Tribunal as to the admission of further evidence is the same test as applied by the Court of Appeal: see Ladd v Marshall [1954] 1 WLR 1489 and Wileman v Minilec Engineering Ltd [1988] IRLR 144. The test is referred to in paragraphs 10 to 15 of the Wileman case and, as is correctly set out in the Skeleton Argument put in on behalf of the Appellant, it is a three-fold test as follows:

(1) that the evidence could not have been obtained with reasonable diligence for use at the trial,

(2) that the evidence would probably have an important influence on the result of the case, and

(3) that the evidence must be sufficiently credible.

18. The points I have already made as to the evidence are of relevance to the third limb of that test.
19. I shall deal with the second limb first, simply because it can be disposed of quickly. We accept and, at the end of the day, it was not seriously argued to the contrary that if evidence as to the involvement of the Appellant in the abduction and abduction proceedings was to be admitted it would be a relevant and important factor to be taken into account in considering the applicability of section 111 and thus, whether or not it was reasonably practicable for the Appellant to present his claim in time.
20. We however, do not go as far as Counsel for the Appellant's submission went in saying that evidence of that involvement is by itself is the relevant factor. In our judgment, the relevance of that evidence is its effect upon the state of mind and actions of the Appellant in not issuing his claim for unfair dismissal in time. In that context, very properly Counsel for the Appellant has accepted that certainly towards the end of the relevant period the Appellant was very well aware that there was a time limit. But, in our judgment the second part of the test is satisfied.
21. In our view the most important point is whether the first part of the test is satisfied.
22. As to this we are also of the view that because the evidence was known to the Appellant in this case there is potential for an overlap between the test applied in Ladd v Marshall and the Wileman case and the approach applied as to the introduction of a new point in, for example, Glennie v Independent Magazines [1999] IRLR 719 and Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 and the cases referred to therein. Those cases show that there is a discretion to allow a new point but generally in the absence of exceptional circumstances the new point will not be allowed to be raised for the first time on appeal. If anything that overlap would make the test harder than the first limb of the test in Ladd v Marshall. However, the cases relating to the introduction of a new point also adopt the approach in the Court of Appeal to that issue and therefore we propose to apply the test set by the Court of Appeal in Ladd v Marshall and applied by this Tribunal to the introduction of new evidence without such overlap. In our judgment this approach assists the Appellant. That test is one of reasonable diligence which does not involve the establishment of exceptional circumstances.
23. We also pause to comment that, as is recognised in the Wileman case (see paragraph 15 of the judgment) hearings before Employment Tribunals are intended to be speedy and informal and there is, on the face of it, some tension between an approach which in the absence of exceptional circumstances precludes litigants (and in particular litigants in person) from raising a new point at a later stage notwithstanding the strong public interest, also recognised in the Wileman case, that it is important that hearings before Employment Tribunals should be decisive. It is that public interest which lies at the heart of the reasoning in the Jones v Burdett Coutts and Glennie cases.
24. What the Appellant says as to the "reasonable diligence" part of the test is contained in paragraph 25 of his affidavit where he says this:

"25 I did not mention to the Tribunal at the hearing on 26th August that I had gone through complicated and emotionally exhausting Family Division litigation during the period when my IT1 form should have been lodged. I thought that I was not permitted to mention it to anyone other than my family law lawyers and those directly involved in that litigation. I had been told that court proceedings involving children were confidential in order to protect their identity and I had observed that witnesses and the Sudanese law expert had not been permitted to be in court during the proceedings except when they were called to give evidence. Therefore, when deciding whether or not it had been reasonably practicable for me to present my IT1 before 22 June 1999, the Tribunal did not hear any evidence of these proceedings or of my involvement in these proceedings."

25. For present purposes we accept that the Appellant was told that the proceedings were confidential. Indeed, it is well known that proceedings in the Family Division are heard in Chambers and are confidential, and those acting for parties regularly and properly impress upon their clients the need for confidentiality.
26. From that paragraph of his affidavit, it was argued on behalf of the Appellant, that he made no effective choice and therefore his position, for example, is to be distinguished from that of the Appellant in Bingham v Hobourn Engineering Ltd [1992] IRLR 298 and in respect of that submission we were referred specifically to paragraphs 15 and 16 of the judgment.
27. Accepting that approach and thus that here the Appellant made no conscious choice or decision because he thought that the proceedings were confidential and could not be mentioned, the issue which to our minds arises in considering whether or not he acted with reasonable diligence in the period leading up to 26 August, is whether somebody acting with reasonable diligence would stand back and ask himself the question "Can I use this information?".
28. If, as the Appellant now seeks to argue, the existence of the abduction and the abduction proceedings was central to the reasons why he did not bring his proceedings in time as opposed, for example, to a thought process where he was working simply on the wrong date, it seems to us that somebody acting with reasonable diligence would ask himself the question "Can I put before the Employment Tribunal the most important factor to enable it to decide whether or not it was reasonably practicable for me to issue my proceedings in time?".
29. In our judgment as soon as anybody asks that question of themselves, they would not be acting with reasonable diligence if they did not consult their Solicitors. Here it is apparent that the firm who acted for the appellant in the abduction proceedings, if they had been asked earlier, would not have put the telephone down on the Appellant and would have dealt with the matter. Naturally if they had been asked and had refused to deal with the matter that would have been another factor to take into account.
30. We were told, although it is not in the Appellant's affidavit, that following the decision of the Employment Tribunal the possibility that he could refer to the abduction and the abduction proceedings did not come to his knowledge because he went and specifically asked his family lawyers about it. Rather we were told he became aware of the possibility that he could refer to the abduction proceedings because before his return to Sudan he telephoned his family lawyers to say goodbye and, no doubt, to thank them for the considerable amount of work that they did in the abduction proceedings which resulted in the return of his children to Sudan, and the point arose in that context.
31. It is in the above context that we have asked ourselves the question "Whether a person in the position of the Appellant who, as the timetable shows, has instructed a number of Solicitors over the period of time of these proceedings would have questioned in his own mind whether the confidentiality of the abduction proceedings prevented him from putting before the Employment Tribunal the most important, or a very important, point in his case as to why it was not reasonably practicable for him to bring his proceedings out of time?"
32. Standing back from it and assessing the matter by reference to common sense, we have reached the conclusion that somebody acting with reasonable diligence would have asked himself that question and, if he had asked himself the question, he would have discovered that he could have given the evidence and therefore, the Appellant has not acted with reasonable diligence.
33. In this context we have considered carefully whether we are being too harsh, having regard to (a) the benefit of hindsight and further, or alternatively, (b) the fact that we are judging this question without having suffered the emotional distress that the abduction proceedings would have caused to the Appellant. In this context we are of the view that the fact that the Appellant accepts that he knew of the time problem on 26 July when he saw a Solicitor, albeit that he did not raise the matter with him, supports the conclusion we have reached that at some time between 26 July and 26 August the Appellant, if he had acted with reasonable diligence, would have asked himself the question "Can I use this information?" and would have pursued the avenue that he thought was open to him to obtain an answer to that question, namely he would have asked the Solicitors who acted for him in the abduction proceedings. During this period the abduction proceedings were over and his children were back in Sudan.
34. For those reasons, although we have considerable sympathy for the Appellant, having regard to the emotional upset he suffered as a result of the abduction proceedings, we have concluded that he does not satisfy the first limb of the Ladd v Marshall test.
35. That renders it unnecessary for us to consider in any detail the third limb of that test relating to the credibility of his evidence and we do not propose to deal with that limb, save to say that if it had only been that limb that had been an issue, we think it unlikely that we would have refused this appeal, notwithstanding the conflict and the gaps I have drawn attention to earlier in this judgment.
36. It follows that the essential reason for our decision is that, in our judgment, the Appellant has not satisfied the first limb of the Ladd v Marshall test.
37. This appeal is dismissed.