United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M D ROSS (Solicitor) Messrs Paris Smith & Randall Number 1 London Road Southampton SO15 2AE
For the Respondent	MR J H MALLISON (Representative)


 


JUDGE CLARK

1. This is an appeal by the Respondent employer before the Brighton Employment Tribunal, Blue Prince Mushroom Ltd, sitting on 25 October 1999 against that Employment Tribunal's decision, promulgated with extended reasons on 8 November 1999, determining that it was not reasonably practicable for the Applicant, Mrs Khan, to present her complaint of unfair dismissal against the Respondent to the Tribunal within the primary 3 months limitation period provided for in Section 111(2) of the Employment Rights Act 1996.

The Facts

2. The Employment Tribunal made the following findings of fact. The Applicant's employment with the Respondent terminated on 5 March 1999. Accordingly time for lodging a complaint of unfair dismissal expired on 4 June 1999. In fact her Originating Application was not lodged until 8 June. It was therefore out of time.
3. The Applicant has some difficulty in understanding English. However her daughter Rifat, who has assisted her, does not. Rifat was also employed by the Respondent. The Employment Tribunal found that the Applicant's difficulties with the language was not a material factor in this case.
4. Some time in April 1999 the Applicant accompanied by Rifat, consulted Mr Mallinson, a voluntary worker at the Crawley Citizen's Advice Bureau. The Employment Tribunal found that the Applicant was aware that she had rights following her dismissal.
5. Mr Mallinson prepared a draft application to the Employment Tribunal and sent particulars of the complaint under Box 11 of form IT1 to the Applicant on 14 April.
6. On 21 May the Applicant visited Mr Mallinson at the Citizen's Advice Bureau offices. At that stage he got the Applicant to sign the form IT1, which bears the date 21 May. Rifat was present on that occasion and as a result of what he was told, Mr Mallinson redrafted the particulars of complaint and then sent out that new draft to the Applicant, perhaps unnecessarily say the Employment Tribunal, on 27 May. He did not draw her attention to the need for a prompt response.
7. On Friday 4 June, the last day for lodging the Form IT1 either the Applicant or her daughter telephoned the Citizen's Advice Bureau and spoke to the Bureau Manager to approve the draft sent out on 27 May. Mr Mallinson was not then present and the Manager did not appreciate, there being no note on the file, that the matter needed to be dealt with that day. We observe that the closing date was apparent from the date of termination of employment in Box 4 of the draft form IT1, and the complete document could have been faxed to the Employment Tribunal, in time, that afternoon.
8. Mr Mallinson came into the office on Monday 7 June. He appreciated the time problem. He decided to take no action then and there, but waited until he had spoken to the Applicant. He did so at 7pm that evening. Having obtained her instructions as to what precisely is unclear from the Employment Tribunals reasons, he arranged for the Originating Application to be faxed to the Employment Tribunal the following day.
9. On 8 June the IT1 was faxed to the Employment Tribunal with a covering note from the bureau manager which read: -

"Mrs Kausar Khan

We attach an IT1 for Mrs Khan. It is four days over the deadline. We earnestly hope you will allow the application to proceed. Mrs Khan speaks little English, and there was a breakdown in communication between her and our adviser. Mrs Khan is naturally devastated by this blow to her hopes of redress. The oversight is due to a succession of unlucky coincidences. Mrs Khan has suffered greatly with the accident to her son, and it would be tragic if now she finds her way blocked."

The Law

10. Section 111(2) of the Employment Rights Act provides: -

"An [Employment Tribunal] shall not consider a complaint under this section unless it is presented to the tribunal-

before the end of the period of three months beginning with the effective date of termination, or

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."

11. In Dedman –v- British Building & Engineering Appliances Ltd (1974) ICR 53, the Court of Appeal held that an Applicant who engages advisers to act for him who then fail to submit his application to the Employment Tribunal on time will not be able to say that it was not reasonably practicable for him to present an application in time. His remedy will lie against his adviser. In Riley –v- Tesco (1980) ICR 323 the Court held that a CAB representative is to be treated as a skilled adviser in the same way as a solicitor or Trade Union Official. In London International College –v- Sen (1993) IRLR 333, Sir Thomas Bingham MR made certain observations on the reasoning in Dedman and Riley but was not prepared to depart from those cases.
12. Finally, it is well settled on appeal that the question whether or not it was reasonably practicable to present a complaint within time is essentially a question of fact for the Employment Tribunal, which should consider and weigh the relevant factors. See Palmer –v- Southend-on Sea Borough Council (1984) IRLR 119.

The Employment Tribunal Decision

13. Having set out the facts the Employment Tribunal directed themselves to the statutory test and considered the cases of Riley and Dedman on which Mr Ross, who appeared below, relied. In particular, the Employment Tribunal referred to the judgment of Waller LJ in Riley where he said, at page 336(B):-

"If you have retained a skilled adviser and he does not take steps in time, you cannot hide behind his failure. There may be circumstances, of course, where there are special reasons why his failure can be explained as being reasonable. Like Stephenson LJ. I am, however, doubtful whether this situation depends on the skill of the adviser. The defence of not being reasonably practicable might fail, whether or not the adviser was skilled, if in fact he was properly acting."

14. The Employment Tribunal then goes on to express their conclusions on reasonable practicability at paragraphs 20 – 21 of their reasons in this way:-

"(20) We have not found this matter easy. We remind ourselves we should not decide it on a question of sympathy. Here, the applicant knew of her rights and in fact had given to the Citizen's Advice Bureau her version of her application within the necessary time. Mr Mallinson has frankly explained the fault. He had left the office before the phone call approving the draft application.

(21) Having considered the matter and all the law, we consider that this is one of those cases where we should and do find that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months. Put another way, we find the failure of Mr Mallinson can be explained as being reasonable."

15. The Employment Tribunal then went on to find that the complaint was presented within their reasonable time after the expiry of the primary limitation period.

The Appeal

16. Mr Ross attacks those conclusions. He submits that those findings are contrary to authority and inconsistent with the Employment Tribunals own findings of fact. Put another way, there was no factual basis for the conclusion that it was not reasonably practicable for this Applicant to present her complaint within time.
17. In response, Mr Mallinson submits that there were grounds for the Employment Tribunals conclusion, particularly difficulties of communication with the Applicant, which meant that her daughter, who was away at University, had to act as interpreter.

Conclusion

18. We accept Mr Ross' submissions. The Employment Tribunal has advanced no cogent reason why it was not reasonably practicable for the Applicant to present her complaint within time. She relied on the Citizen's Advice Bureau who failed to lodge the application in time in circumstances where there were plenty of opportunities to do so from shortly after 14 April. Even on the last day, 4 June, the completed application could have been lodged by fax. Although the Employment Tribunal state, in paragraph 21 of their reasons, that they find that the failure of Mr Mallinson can be explained as being reasonable they do not state why that is so. Search as we may in the factual findings we cannot see any support for that conclusion. On the contrary, this is a case in which a failure to lodge the Originating Application in time was wholly avoidable.
19. We, like the Employment Tribunal, remind ourselves that we must not decide this case on sympathy; sympathy for the Applicant, who is deprived of the opportunity to pursue her claim against the Respondent and must now consider alternative proceedings against the Citizen's Advice Bureau and sympathy for the Citizen's Advice Bureau, which does valuable work for the community, often through unpaid volunteers, such as Mr Mallinson.
20. Nevertheless, justice must be done between the parties. In our view the Respondent has an unanswerable limitation defence. It was reasonably practicable for this claim to be presented within time. We so hold and allow this appeal. Accordingly the Applicant's complaint is dismissed.