United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW GLENNIE (of Counsel) Messrs Finers Stephens Innocent Solicitors 179 Great Portland Street London W1N 6LS
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE BELL: This is Mrs Langley-Di Giuseppe's appeal against the decision of the Employment Tribunal held at Stratford on 16th, 17th and 18th November 1998 that her complaints of (i) unauthorised deduction of wages in respect of bonus; (ii) direct racial discrimination in connection with payment of bonus; (iii) direct racial discrimination in connection with payment of a contractual redundancy payment; (iv) breach of contract and (v) unfair dismissal were out of time so that the tribunal had no jurisdiction to hear them. The tribunal therefore dismissed her Originating Application in its entirety.

1. There is in fact no opposition to the appeal from the respondent. Indeed, in June 2000 the parties sent to this tribunal's a form of consent order to allow the appeal and to remit the matter to the Employment Tribunal for a hearing on the merits, but even where an appeal must succeed on the merits, as we believe this appeal must, the Employment Tribunal is entitled to know why it has been overruled. The appeal is not necessarily allowed on all the grounds put forward by an appellant and in this particular case this Appeal Tribunal must decide whether it should extend time or merely remit so that that question can be reconsidered. In any event, it is not, as we understand it, the practice of this tribunal to make consent orders on issues of jurisdiction of the Employment Tribunal.
2. The background to Mrs Langley-Di Giuseppe's Originating Application is that she was employed by the respondent at its office in Finsbury Pavement from 1st April 1990 to 1st December 1997, which the Employment Tribunal found to be the effective date of termination of her employment. She was assistant to the Chief Economist.
3. The respondent's parent company suffered serious losses. There were redundancies in September 1997 but Mrs Langley-Di Giuseppe was persuaded to stay with a particular promise, as the tribunal found, that she would be looked after.
4. A meeting of staff took place in November 1997 at which Mr Nakajima, the respondent's Chief Executive, explained its financial situation but assured staff that their bonus which had for many years been paid in December or shortly thereafter would be paid. The tribunal found that the date for payment of the bonus would have been the 19th December 1997. Before then, however, the decision was made to close the respondent's operation.
5. Mrs Langley-Di Giuseppe was made redundant along with many others. In her case, as we have already indicated, with effect from 1st December 1997.
6. The respondent went into voluntary liquidation on 1st June 1998. Mrs Langley-Di Giuseppe's bonus was never paid.
7. Different members of staff continued to believe the assurance that their bonus would be paid or cease to believe that it would be paid at different times. The tribunal appears to have accepted Mrs Langley-Di Giuseppe's evidence that she first thought that she had a claim at the end of March 1998. That was then when a Mrs Keene, who had been a fellow co-employee and was a leading figure in the group of what later became applicants to the Employment Tribunal, gave her information that some employees had received their discretionary bonus for 1997, and some had received an enhanced redundancy payment, whereas Mrs Langley-Di Giuseppe and others had received the statutory payment only.
8. In our view, those features, looked at in the round, amounted to the first information which indicated to Mrs Langley-Di Giuseppe that she might have the claims which she later made to the Employment Tribunal. It is true that it can be said that so far as unfair dismissal is concerned she already knew that there had been a lack of consultation, but the lack of consultation itself bore on whether she might have received an enhanced redundancy payment if in fact she had been consulted. So it seems to us that Mrs Langley-Di Giuseppe did not know that she had claims of the nature which she made until the end of March 1998. In the meantime she had been on maternity leave. She had borne a child, 6½ weeks prematurely. The child was unwell and Mrs Langley-Di Giuseppe was herself unwell for a period. In fact she presented her Originating Application containing all the claims which we have previously described on 1st May 1998, about four or five weeks after her conversation with Mrs Keene.
9. The racial discrimination depended upon an allegation that Japanese staff were treated better than London engaged staff like Mrs Langley-Di Giuseppe. 57 members of staff made various applications, mostly similar to those of Mrs Langley-Di Giuseppe. They made them to the Employment Tribunal at various times. Some of them well after Mrs Langley-Di Giuseppe presented her own form IT1.
10. The hearing on 16th, 17th and 18th November 1998 was held to determine whether the applications of 30 of the applicants were out of time. In its decision with extended reasons, which was promulgated on 15th December 1998, the Employment Tribunal set out the relevant statutory provisions relating to time limits. It is unnecessary to repeat them here. So far as the complaint of deduction of wages in respect of bonus is concerned, the primary period for presenting a complaint is three months from the deduction. In the cases of breach of contract and unfair dismissal it is three months from the effective date of termination of the contract. That meant that the three months ran out in the first case on 19th March 1998 and in the other two cases on 1st March 1998. But the relevant statutory provisions allow for extension of the period for presentation of a complaint within such further period as the tribunal considers reasonable in a case where it is satisfied that it is not reasonably practicable for the complaint to be presented before the end of the period of three months. The tribunal decided that it was reasonably practicable for Mrs Langley-Di Giuseppe's complaints to be presented within the three month period. So far as her complaints of racial discrimination were concerned, the period for presenting a complaint is the period of three months beginning when the act complained of was done, but the Employment Tribunal may consider a complaint which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so. The primary period, so far as alleged discrimination in respect of redundancy payment is concerned expired on 1st March 1998. The primary period in respect of alleged discrimination relating to bonus expired on 19th March 1998.
11. On the question of whether it was reasonably practicable to present the three complaints to which that test was relevant, within the three month time limit, the Employment Tribunal considered that the factors to take into account in all cases, not just Mrs Langley-Di Giuseppe's, were firstly, when each individual knew of his or her right to complain; secondly, when she knew that she had a complaint; thirdly, what advice she received and by whom the advice was given and the extent and nature of the advice, and, fourthly, whether there was any substantial fault on the part of the individual applicant. The tribunal found also that it was material to take account of reliance on the assurance of Mr Nakajima that the bonus would be paid, and the late discovery of inequality of treatment. The tribunal decided that very little weight was to be placed on any ignorance or mistake as to time limits, as mere ignorance of that sort was not of itself grounds for granting an extension. Mr Glennie originally challenged that approach in relation to the "reasonably practicable" test but he has not pursued that challenge before us today rightly in our view.
12. In relation to whether it was just and equitable to extend time for the racial discrimination claims, the Employment Tribunal said that it took account of the suggestion that there would be no prejudice to the respondent if the claims went ahead, as the respondent would have to prepare its case in respect of other similar claims which were judged to be in time, even if that involved a greater extension of time than would be necessary in Mrs Langley-Di Giuseppe's case. The tribunal said that it took account again of reliance of Mr Nakajima's assurance about the bonus and upon any late discovery of unequal treatment. However, so far as this last factor was concerned, the Employment Tribunal decided that each applicant must present his or her Originating Application within a reasonable time of discovering the relevant fact. It said at paragraph 18 of its decision:

"… We considered that a reasonable period in these circumstances where there is large multiple application and a group set up to deal with it that 21 days after discovery is a reasonable period for presenting an Originating Application."

We see no harm in provisionally taking a period such as that against which to measure each claim where there are a number of similar claims in respect of which the Employment Tribunal has to deal with the question of extension of time. It is a way of getting off the mark in considering such applications. But, in our view, the Employment Tribunal must still look at the individual features of each applicant's case and exercise its discretion in the light of the particular circumstances, especially when the period selected is comparatively short, as 21 days is in our view. Again in respect of whether it was just and equitable to extend time for presenting the claims of race discrimination, the Employment Tribunal did not take account of ignorance or mistake as to time limits. Mr Glennie has challenged that approach in respect of the test of "just and equitable", which, as he has reminded us, is a very wide test. In our view, although it may technically be possible to take into account ignorance of the time limit in judging whether it is just and equitable to extend time, certainly in the circumstances of this particular case, ignorance was a feature which the Employment Tribunal was entitled to think should really carry no weight at all. There was nothing to distinguish Mrs Langely-Di Giuseppe's case, so far a knowledge of time limits was concerned, from that of any ordinary member of the public. All of us are, fairly or not, presumed to know what the law is.

13. Having set out the principles and approach which we have related the Employment Tribunal found some material facts which related to all applicants. It then dealt with each case individually, making further findings of fact and coming to its conclusions. We have already set out the facts which, in our view, matter in Mrs Langley-Di Giuseppe's case. On those facts, in our view, she might well have expected to succeed in obtaining the requisite extension of time in respect of all her complaints. But the Employment Tribunal simply concluded in her case that:

"86 The Tribunal were not satisfied that Mrs Langley-Di Giuseppe had shown that it was not reasonably practicable for her to present her complaint of unfair dismissal, all complaints of breach of contract and her complaint of unauthorised deduction from wages in respect of the bonus within the prescribed time limit and the Employment Tribunals has no jurisdiction to consider these complaints.

87 In relation to the complaints of racial discrimination in relation to the bonus and racial discrimination in relation to the contractual redundancy pay, Mrs Langley-Di Giuseppe did not present her Originating Application within 21 days of discovering, at the end of March, that others had received bonus and contractual redundancy pay and it is the unanimous decision of the Tribunal that it is not just and equitable to extend time and the Employment Tribunals has no jurisdiction to consider Mrs Langley-Di Giuseppe's complaints of racial discrimination."

So on the issue of whether it was reasonably practicable for Mrs Langley-Di Giuseppe to present the complaints to which that test applied the Employment Tribunal gave no indication of what regard and weight it attached to the factors which it had identified as material. In the result, in our view, Mrs Langley-Di Giuseppe could not know why she had lost on that point.

14. On the issue of whether it was just and equitable to extend time for her discrimination claims the Employment Tribunal appears merely to have applied rigidly the 21 day "cut-off" without apparent regard to the particular circumstances of Mrs Langley-Di Giuseppe's case and without regard to whether the respondent would suffer prejudice if time was extended.
15. On those grounds these appeals must succeed, in our view, in respect of all heads of claim so far as the Employment Tribunal's decision on jurisdiction is concerned. But should we merely remit the questions of extension of time for reconsideration or can we properly judge and decide the matters ourselves on the information available to us, including the Employment Tribunal's findings of fact?
16. In our combined and unanimous judgment we can follow the second course. In our view, it was not reasonably practicable for Mrs Langley-Di Giuseppe to present her claims for unauthorised deduction of wages, breach of contract and unfair dismissal within three months of them arising. She had every reason to wait upon Mr Nakajima's promise to pay the bonus and she was misled by it, as she probably was by the earlier promise that she would be looked after. She had been away on maternity leave, unwell and no doubt distracted by her baby being unwell. She was only aware of the facts which really mattered at the end of March 1998 when she was visited by Mrs Keene. It was not, in our view, reasonably practicable for her to present her complaints before she had that information and by then she was outside the three month period in respect of all claims. Moreover, Mrs Langley-Di Giuseppe did then present her complaints for unauthorised deduction of wages, breach of contract and unfair dismissal within the comparatively short period of four to five weeks after Mrs Keene's visit. That, in our view, was a reasonable period in which to present those claims, especially if one measures it against the statutory primary period of three months.
17. For much the same reasons, in our view, it was just and equitable to extend the time for presenting her discrimination claims so as to encompass the date when they were presented, which was only about four or five weeks after she had reason to believe that she had the relevant causes for complaint. She was in fact only a week or two outside the 21 day period which the Employment Tribunal thought generally applicable and of course in her particular case she had had the fact of giving birth to a child prematurely, the illness of the child and her own illness as part of the background to the situation she found herself in when deciding to present her discrimination complaints.
18. For all these reasons, we allow this appeal and remit all Mrs Langley-Di Giuseppe's complaints for hearing on the merits, together with the other 45 applications which we are told by Mr Glennie are still proceeding.