United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS T GILL (of Counsel) Messrs Thompsons Solicitors Percy House Percy Street Newcastle-upon-Tyne NE1 4QW
For the Respondent	MR J FALKENSTEIN (of Counsel) Messrs Hodgsons & Mortimer Solicitors 16 Duke Street Darlington Co. Durham DL3 7SA


 


SIR CHRISTOPHER BELLAMY QC:

1. This is an appeal by the GMB against a decision of the Employment Tribunal sitting at London South sent to the parties on 7 January 2000. In that decision the Tribunal held that the complaint against the GMB presented by Michael Hamm, the Respondent to this appeal, should not be dismissed on the ground that it was presented out of time.
2. Although Mr Hamm's IT1 refers to "Unfair Dismissal and Victimisation", the Tribunal made it plain, at the hearing on 30 November 1999, that it intended to treat his complaint as made under section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA "). Sub-sections (1) and (2) of section 174 provide:

"(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.

(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) -

(a) he does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union,

(b) he does not qualify, or no longer qualifies, for membership of the union by reason of the union operating only in a particular part or particular parts of Great Britain,

(c) in the case of a union whose purpose is the regulation of relations between its members and one particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers, or

(d) the exclusion or expulsion is entirely attributable to his conduct."

In this case the GMB relies on sub-paragraph (d) of section 174(2) .

3. Section 174 (5) of the TULRCA provides:

"An individual who claims that he has been excluded or expelled from a trade union in contravention of this section may present a complaint to an employment tribunal."

4. Section 175 of the TULRCA, as amended, provides:

"An employment tribunal shall not entertain a complaint under section 174 unless it is presented-

(a) before the end of the period of six months beginning with the date of the exclusion or expulsion, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the tribunal considers reasonable."

5. The Tribunal found that the GMB's decision to expel Mr Hamm was notified to him by recorded delivery on 19 February 1998. Mr Hamm then made some contact with the CAB and, perhaps more importantly, pursued an internal appeal in accordance with the procedures of the GMB. Mr Hamm was not notified by the final dismissal of that internal appeal until 6 March 1999, and the complaint was presented on 1 June 1999. The principal issue before the Tribunal was whether, in those circumstances, it was satisfied that it was "not reasonably practicable" for the complaint to be presented before the end of the period of six months from 19 February 1998 (i.e. before 19 August 1998) in accordance with paragraph (b) of section 175.
6. On that issue, the Tribunal made the following relevant findings of fact, at paragraphs 15 to 20 of their reasons:

"15. The decision to expel Mr Hamm was notified to him by recorded delivery on the 19th February 1998. He went to the citizens advice bureau in Bishop Auckland, County Durham. He spoke to a volunteer part time advice worker. He explained the background and was advised that he should pursue it internally, and he acted upon that advice and launched his internal appeal. He was not given any advice concerning presentation of a complaint to the employment tribunal.

16. After the 6th March 1999, when he had been informed that his appeal was dismissed, he spoke to a welfare officer with whom he was concerned in respect of his disability pension. He was given an address at which to seek advice in Gateshead, but that office would not give him advice because he was not resident in Gateshead. The welfare officer also gave him the details of a solicitor in Newcastle, but the solicitor required a substantial fee for such advice.

17. Between the 6th of March and the 28th May, Mr Hamm was going to hospital, as an in patient and as an out patient, because of a knee problem, in respect which he is in receipt of a 40% war disability pension.

18. Mr Hamm was also influenced by the fact that he had previous experiences in the Employment Tribunal in Newcastle which had left him dissatisfied with the quality of justice which he received there. We are not in any position to comment on the merits of that view; we simply accept that it is a view which Mr Hamm had. The relevance of it was that he wished to pursue the internal proceedings to a point where the relevant decision was being made outside the Newcastle area, ie to Manchester and then to London.

19. Mr Hamm had a broad appreciation that he was able to pursue the case against the union before the employment tribunal, and that there would be a three month time limit applicable to such an application, that being the time limit with which he was familiar in respect of his previous litigation before the tribunals. He took the time limit to be three months from the date of the appeal letter.

20. In the course of his closing argument, rather than when he was testifying, Mr Hamm stated that his mother died in June 1999, of cancer, and that he had spent five weeks away from the North East before the end of May. Mr Scott was invited to comment on that additional matter of fact, and chose not to do so."

7. On the question of the application of paragraph (b) of section 175, Tribunal concluded as follows, at paragraphs 23 to 26 of their reasons:

"23. We do not accept Mr Scott's argument that the case law in respect of unfair dismissal complaints is necessarily binding upon us in connection with the jurisdiction under section 174 & 176. This is a different area of the law, dealing with a different sort of complaint in different circumstances to those of an ordinary dismissal by an employer. Not only are the grounds of complaints different, but the time limit itself is different; six months instead of three months. We therefore consider ourselves to be free to decide the point.

24. We accept that time runs from the date of expulsion in 1998.

25. We accept the Application's argument that it was not reasonably practicable for him to present his complaint to the tribunal in time, because he was pursuing his internal appeal procedures, and he was given inaccurate advice by the CAB.

26. We find that the complaint was presented within such a further period as the tribunal considers reasonable having regard to the circumstances of Mr Hamm's life in the period 6 March 1999 to the presentation of the Originating application, as set out above in our findings."

8. The main issue on this appeal is whether the Tribunal erred in law in finding, at paragraph 25 of the reasons, that "it was not reasonably practicable" for the complaint to be presented during the period of six months of the date of expulsion in February 1998 having regard to (a) Mr Hamm's pending internal appeal and (b) the advice Mr Hamm received from the CAB. No point is taken as regards the period between the dismissal of his internal appeal on 6 March 1999 and the presentation of the complaint on 1 June 1999.
9. Counsel for the GMB has drawn our attention to a number of statutory provisions which contain the same wording as section 175 of the TULRCA, notably Section 111 (2) of the Employment Rights Act 1996 ("the 1996 Act") relating to the time limit for presenting a complaint of unfair dismissal, and several other provisions of that Act. She submits that the words "reasonably practicable" in section 175 of the TULRCA should be construed in the same way as the identical provisions of the 1996 Act. If Parliament had intended a different approach to be adopted, it would have so provided, as for example under section 68(6) of the Race Relations Act 1976. Attention is also drawn to section 66(2) (b) of the TULRCA itself where, in cases concerning members who are "unjustifiably disciplined" by a union contrary to section 64, a complaint may be presented out of time either where it is "not reasonably practicable" to do so (sub-section (i)) or where the delay is due to "a reasonable attempt to appeal" against the disciplinary sanction in question (sub-section (ii)). No provision equivalent to sub-section (ii) of section 66(2)(b) is to be found in section 175.
10. On the footing that the existing case law on the meaning of the words "reasonable practicable" is transposable to section 175(b), the GMB submits that neither the existence of the internal appeal nor the "inaccurate advice" obtained by Mr Hamm from the CAB rendered it "not reasonably practicable" to present the complaint in time: see notably Walls Meat Co Ltd v Khan [1979] ICR 552, Riley v Tesco Stores [1980] ICR 323, Parker v Southend-on-Sea Borough Council [1984] ICR 372 and London Underground Limited v Noel [1999] IRLR 621.
11. Counsel for Mr Hamm submits that paragraphs 23 to 25 of the reasons reflect the fact that the Tribunal is there responding to the arguments put to them by the GMB, and not dealing with arguments advanced by the applicant, who was unrepresented. In paragraph 23 of the reasons the Tribunal is merely saying that the circumstances of Riley and Palmer, which were cited to them, were not binding because the circumstances were different. As regards the reference to 'inaccurate advice' in paragraph 25 of the reasons, there is no finding in paragraph 15 that Mr Hamm was seeking advice about a complaint to an employment tribunal, nor that the advice he got was misleading, nor that he relied on the advice: Riley is not therefore in point. As regards the internal appeal, Counsel for Mr Hamm accepts, on the basis of Palmer and Noel, that the fact that an internal appeal is pending is not of itself sufficient to satisfy the 'reasonably practicable' test. He submits, however, that Mr Hamm was under a misapprehension as to the date from which time for appealing ran: see the last sentence of paragraph 19 of the reasons. That finding distinguishes this case from Palmer and Noel. Moreover, it was for the Tribunal to investigate the circumstances of Mr Hamm's ignorance of the time limit to determine whether that ignorance was reasonable. In this case there were elements to support the view that Mr Hamm believed that he was still a member of the union, notably some promotional material sent to him by the GMB in April 1998 and July 1998, in which case he could reasonably have believed that time ran from the date of the final dismissal of his appeal, ie from 6 March 1999. Although there is no express finding by the Tribunal that Mr Hamm believed that he was still a member of the union, such a finding is implicit in the last sentence of paragraph 19 of the reasons. Considering also the less well-known nature of the rights under section 174 of the TULRCA, the Tribunal was entitled to find on the facts that the 'not reasonably practicable' test was satisfied.
12. We take the view, first of all, that the words "not reasonably practicable" are, in principle, to be given the same meaning whenever they appear in an equivalent context in comparable legislation. In this case, the wording of section 175(b) of the TULRCA is the same as section 111 (2) (b) of the 1996 Act, which deals with time limits in cases of unfair dismissal. That section is itself worded identically to its predecessor sections: see e.g. section 67 of the Employment Protection (Consolidation) Act 1978. The same wording is used in several other provisions of the 1996 Act dealing with time limits for presenting complaints (see e.g. sections 23(4), 34(2), 48(3), 51(2), 54(2), 57(2), 60(2), 63(2), 63C(2), 70(2) and 188(2), and also in a number of identically worded sections of the TULRCA: see e.g. sections 147(b), 175(b), 189(5) and 192(2).
13. Since all those statutory provisions occur in the same general context, that is to say the time limits for presenting various kinds of complaint to an employment tribunal, Parliament presumably intended the words "not reasonably practicable" to bear the same meaning in the different sections in question. Parliament could have, but did not, choose to adopt different words, as it did when adopting the wider test provided under section 68(6) of the Race Relations Act 1976, which provides that a complaint presented out of time may nonetheless be considered by the employment tribunal "if, in all the circumstances of the case, it considers that it is just and equitable to do so" (see also section 76(5) of the Sex Discrimination Act 1975 and paragraph 3(2) of Schedule 3 of the Disability Discrimination Act 1995). Moreover, in accordance with the normal principles of statutory construction, Parliament must be presumed to have known, when enacting the TULRCA, of the meaning given to the words "not reasonably practicable", by previous decisions of the courts.
14. It follows, in our view, that the Tribunal erred in law, at paragraph 23 of the extended reasons, in giving insufficient weight to previous decisions of the courts concerning the interpretation of the words "reasonably practicable" in the context of time limits for presenting complaints to employment tribunals, albeit under different statutes.
15. The principles to be applied, in that context are discussed in a number of previous decisions under section 111(2) of the 1996 Act (or its predecessors) notably the cases of Walls Meat, Riley, Palmer and Noel already mentioned. First, what is or is not "reasonably practicable" is primarily a question of fact for the employment tribunal, whose decision should normally prevail unless it is perverse or erroneous in law (see the judgment of Peter Gibson LJ in Noel, [1999] IRLR at 12, citing Shaw LJ in Walls Meat [1978] ICR 52, at 57 D-E). Secondly, the best approach is to ask colloquially and untrammelled by too much legal logic "was it reasonably feasible to present the complaint to the employment tribunal within the relevant period?" (see the remarks of May LJ in Palmer [1984] ICR at 384H-30SA, cited in Noel, at 13 by Peter Gibson LJ). Thirdly, the statutory test is one of practicability: that test is not satisfied just because it was reasonable not to do what could have been done (Bodha v Hampton Area Health Authority [1982] ICR 200, at p 204, cited in Noel at 24 by Judge LJ). Fourthly, ignorance of, or mistaken belief with regards to, essential matters are not impediments making it not reasonably practicable to present a complaint within the time limit unless the ignorance or the mistaken belief is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him. (See Brandon LJ in Walls Meat, at 60F to G, cited by Waller LJ in Noel, at 29.) Fifthly, ignorance of the time limit does not, of itself, prevent the presentation of a claim from being reasonably practicable (see Shaw LJ in Walls Meat, 59B-E). Where the employee knows of the right to make a complaint but professes, ignorance of how to make it, or of the relevant time limit, it will be normally difficult for him to demonstrate that he acted reasonably if he failed to make inquiries as to how, or within what period, he should exercise that right (see Brandon LJ in Walls Meat, at 61 B-F).
16. More specifically, the Court of Appeal has held that the fact that employer's internal appeals procedure has not been exhausted does not render it "reasonably impracticable" to present a complaint, see e.g. Bodha at p 205, approved in Palmer at p 384 E, and explicitly confirmed in Noel by Peter Gibson LJ at 20. It follows that the fact that Mr Hamm had instituted an internal appeal, relied on by the Tribunal at paragraph 25, does not, of itself, mean that it was "not reasonably practicable" to present his complaint within the time limit.
17. As regards the Tribunal's further reliance, at paragraph 25, on the "inaccurate advice" that Mr Hamm is said to have obtained from the CAB, the Tribunal merely found, at paragraph 15, that he was not given any advice as regards a possible complaint to an employment tribunal. There is no finding by the Tribunal that Mr Hamm sought advice about that possibility.
18. In any event, even on the assumption that Mr Hamm did receive incorrect advice from the CAB, the fact that the employee received incorrect advice from a CAB or other advisor does not in law justify the conclusion that it was "not reasonably practicable" to present a complaint within the relevant time limit: see notably Walls Meat at p 60H and Riley at p 328F.
19. In our view it follows that the Tribunal erred in law as regards both the matters relied on, at paragraph 25 of the reasons, as grounds for allowing the complaint to proceed out of time.
20. As regards the submission on behalf of Mr Hamm that he may have had, or the Tribunal may have thought he had, reasonable grounds for believing that he was still a member of the GMB after February 1998, we can find nothing in the Tribunal's reasons to support a finding to that effect. Indeed, the contrary view is supported by the Tribunal' s finding, at paragraph 24 of the reasons, to the effect that time ran from February 1998, which is the date when Mr Hamm was first notified of his expulsion.
21. As regards the material on this point that was introduced during the hearing of this appeal- which exceptionally we agreed to read-the GMB's letter to Mr Hamm of 19 February 1998 expressly states that with effect from 12 February 1998 "you are expelled from Membership of the GMB." In our view that letter leaves no doubt that Mr Hamm was no longer a member of the union with effect from that date. As regards the promotional material which Mr Hamm received after that date, and which was apparently sent in error, Mr Hamm's subsequent letter to the GMB of 13 July 1998 protesting against the sending of that promotional material confirms Mr Hamm's own belief that he was no longer a member of the union.
22. For these reasons we reject the submission founded on Mr Hamm's alleged belief that he was still a member of the union after receipt of the letter of 19 February 1998.
23. That leaves us with the findings of fact in paragraph 19 of the reasons, which are to the effect that Mr Hamm knew in general terms that he had the right to complain to an employment tribunal, that he believed (erroneously) that the time limit was three months but that he "took the time limit to be three months from the date of the appeal letter". However, Mr Hamm's mistaken belief as to the date from which time ran is legally irrelevant unless, exceptionally, that mistaken belief was based on reasonable grounds. In our view, it follows from the authorities already cited that neither the fact of the internal appeal, nor the contact with the CAB, suffice to establish that Mr Hamm had reasonable grounds for his mistaken belief. It was up to Mr Hamm, knowing of the existence of his right, to make the necessary inquiries as to the time limit. Even on the assumption (which does not appear clearly from the Tribunal's findings of fact) that Mr Hamm was misadvised, that fact constitutes insufficient grounds in law for permitting a complaint to be proceeded with out of time under section 175(b).
24. We add that it appears from paragraph 18 of the reasons that Mr Hamm was not wholly unfamiliar with the procedures of employment tribunals, and that he apparently wished to defer presenting his complaint until the relevant decision in the internal appeal process was made in London or Manchester. That latter consideration, however, did not render it "not reasonably practicable" to present a complaint within the statutory time limit.
25. We are conscious of the statutory anomaly whereby, if a member is expelled from a union under section 64 of the TULRCA, time may be extended, pending an internal appeal, under section 66(2) (ii) (b), whereas the same dqes not apply under section 176(b), albeit that the time limit is shorter under section 66 than under section 176. However, we do not feel able to interpret section 176(b) as if it contained an express provision equivalent to section 66(2) (ii) (b),
26. Subsequent to the hearing of this appeal Mr Hamm forwarded to the Registrar in manuscript certain additional submissions which he wished us to take into account. Despite the irregularity of that procedure, and the objections of the GMB, we have read the material submitted by Mr Hamm. However, nothing in that material enables us to come to a different conclusion.
27. It follows from the above that the GMB's appeal must be allowed. Since our conclusion in this case is compelled by previous decisions of the Court of Appeal on the basis of the facts already found by the Tribunal, we see no scope for remitting this matter: see McLeod v Hillyer Brothers Ltd [1986] ICR 120 at 130. Accordingly we find ourselves obliged to dismiss Mr Hamm's complaint on the grounds that it was presented out of time.