United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I OMAMBALA (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Mr Langdon in the matter of D.J. Langdon against Cardiff City Council.

1. Mr Langdon resigned his job as a schoolteacher with Cardiff City Council on 31 March 1997. He presented an IT1 for unfair dismissal on 17 November 1999 – observe the gap. The Tribunal ruled that it had no jurisdiction as he was time-barred and it held that in the circumstances there was no available ground for permitting the claim to proceed out of time and hence that it had no jurisdiction in the matter and Mr Langdon appeals against that and also is concerned with the Tribunal's declining to allow him to amend to add a claim for sex discrimination.
2. This matter has caused us some anxiety and even though this is merely a preliminary hearing we thought it best to set out our reasoning at greater length than one usually does in this type of case.
3. Mr Langdon was at the material time in 1996 and 1997 a schoolteacher at a school run by Cardiff City Council. He resigned from that post with effect from 31 March 1997. He had been suspended pending allegations of sexual misconduct and investigation of them. They involved young people and involved acts of gross indecency (it was said) with boys or young men and buggery. Mr Langdon is homosexual. He repeatedly denied the misconduct. Solicitors advised him. His Solicitors' letters indicate that by 17 September 1996 he had received a summary of the allegations made against him. Cardiff City Council had, to judge from the correspondence, some reason to believe that he thought that some of his accusers had ulterior motives and by 26 November 1996 he directly stated that the accusers might be confused or malicious or were seeking to "ease the situations they find themselves in with the authorities".
4. In connection with Mr Langdon's alleged misconduct Cardiff City Council collected or had presented to it evidence in the form of written statements from the Principal Social Services Officer (Child Protection), from a Probation Officer, a County Council Children's Officer and a Detective Constable and other enquiries were also made. But the identity of the young complainants or accusers were not made available to Mr Langdon. Indeed, there is no evidence before the Tribunal that even Cardiff City Council knew of their identity at that early stage. Such of the Officers whom we have just mentioned who gave statements, if they knew (as some but not all of them must have done) of the identity of the accusers, withheld the information, as it is apparently common in such cases to withhold such details to preserve anonymity for the protection of the young people involved. Cardiff disclosed to Mr Langdon the written statements that they had collected and they offered him an option of retirement. In his IT1 Mr Langdon says:

"Cardiff County Council [I'm afraid I can't read the passage but it seems to indicate that they] were prepared to accept my resignation on extended notice as an alternative to proceeding against me. Based on the evidence disclosed against me, I concluded I had no choice but to accept this offer and I resigned."

And that resignation took effect, as we have mentioned, from 31 March 1997.

5. Later, a good deal later, in late August 1999, some two and a quarter years after his resignation, Mr Langdon learned of the identity of some at least of the accusers and also learned that they, or some of them, may have had or did have convictions for crimes including, he says, crimes involving dishonesty. He learned that not from Cardiff Council but in the course of fresh criminal proceedings against him and others, which were later dropped, but in the course of which presumably the prosecution made disclosures as is required of them. And so it came about that on 17 November 1999 he presented an IT1 for unfair dismissal. Cardiff's IT3, hardly surprisingly, raised the statutory time-bar point. They said:

"1. Mr Langdon resigned from his post as a teacher at Glan Ely High School on 31 March 1997 and has submitted his claim for unfair dismissal on 17 November 1999. It is the opinion of the County Council that Mr Langdon's claim is out of time."

Indeed, to judge from the IT3 that was not his only difficulty because paragraph 2 of it said:

"2. Mr Langdon was employed as a teacher at … School from September 1995 until 31 March 1997. At the time of his resignation Mr Langdon did not have sufficient service with the County Council to claim unfair dismissal."

6. A hearing of a preliminary issue was arranged for hearing on 2 February 2000 and the notice convening that hearing said:

"1. The hearing will be limited to consideration of the following preliminary issue(s);

THE EFFECT OF THE STATUTORY TIME LIMIT ON PROCEEDINGS."

It may be worth reminding ourselves of that time limit. Section 111 (2) of the Employment Rights Act 1996 says:

"(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."

7. The test of reasonable practicability does not give anything like the width of the justice and equity test found in Sex Discrimination and Race Discrimination cases. A stricter view is taken: see for example London Underground v Noel [2000] ICR 109 CA. But there is some doubt as to the nature of "the complaint" within section 111 (2) (b) in respect of the presentation of which reasonable practicability has to be addressed. If the reference to "the complaint" requires a close look at the IT1 actually presented, then it could become quite clear that it was not reasonably practicable for Mr Langdon to present the very IT1 that he did lodge within the statutory period. His IT1 alleges, firstly, that the Cardiff case against him relied on the testimony of individuals who had a series of convictions for dishonesty. Secondly, that he did not know of that at the time. Thirdly, that Cardiff failed to disclose it to him and fourthly, that he learned of it only in late August 1999. There was, so far as one can tell from the Tribunal's Extended Reasons, no attempt to disprove any of those four points. That being so, it is easy enough to see that until late August 1999 it was not reasonably practicable for Mr Langdon to have presented the very IT1 which he presents. But is that the right approach? If it were, then whenever a complainant could point to some fact asserted in his late IT1 which had come to his notice or perhaps even where only the means of proving it had come to his notice out of time, outside the statutory time period, he would be able to demonstrate the impracticability of an earlier timely complaint. That, as it would seem, would be far too broad. It would almost repeal the statutory time-bar.
8. The question or something much like it came up for decision in a case called Churchill v Yates & Sons [1983] ICR 380 EAT. Mr Churchill was dismissed for redundancy. Just short of a month after the statutory three month period he lodged an IT1. It asserted, inter alia, that redundancy had been merely a pretext on the part of his employer and that his employer, even within the three month period, had taken on another man to do the same or a similar job to his. When turning to Churchill we leave out of account that Mr Churchill's complaint raised other grounds too, as that does not form any part of the reasoning material to the case before us. Reverting to the Churchill case, it had not been until the very day before the expiry of the statutory three months that Mr Churchill learned of the employers having taken on a new workman to do his old job. His allegation was not that they had taken on the new worker exactly as he was dismissed. He could not be sure of the time when they had taken on the new worker; it could have been as late as two months after the dismissal. The Employment Appeal Tribunal, under Browne-Wilkinson J, recorded the submissions as they were then made, at page 382 C – D:

"Therefore, it was submitted, it was not reasonably practicable for him to have brought proceedings for unfair dismissal until he discovered the existence of the fact which provided the ground of his cause of action that he had been unfairly dismissed."

The EAT then identified two points, only the first of which is relevant to our case. They said:

"As it seems to us there are two related questions here. The first and possibly the most fundamental is this: Can ignorance of a fact, the existence of which is fundamental to the right to complain of unfair dismissal, amount to circumstances which render it not reasonably practicable to bring a complaint?"

A little later:

"As to the first point, we find it impossible to say that there cannot be cases where ignorance of a fact fundamental to the existence of a good cause of action is not a matter capable of leading an industrial tribunal to the conclusion that it was not reasonably practicable to bring the complaint within three months."

And then, on 383 continuing:

"As it seems to us it is impossible to say that it is practicable for somebody to bring a case of unfair dismissal until he is aware of the fundamental fact which renders his dismissal unfair. We are not saying that it is necessary for him to know all the facts. There must be very few cases indeed where the discovery of a new fact for the first time shows a cause of action to exist which, on the previously supposed state of facts, did not exist. But we cannot rule that there are no occasions in which ignorance of facts prevents an industrial tribunal from holding that it was not reasonably practicable to present the complaint within time.

In this case, if for the moment we assume a complaint presented by the employee relying on ground (1) alone (there being no reference to grounds (2) to (6)), the question is whether he can demonstrate to the industrial tribunal that until he was aware of the possibility of challenging the reason for dismissal given by the employers he reasonably took the view that he had no reasonable grounds to complain of unfair dismissal. If that could be established on the facts, then it would be open to an industrial tribunal to hold that it was not reasonably practicable for him to have brought that complaint until he discovered the crucial fact."

And the EAT there remitted the case, saying at page 384:

"For those reasons, we think that the right order is to allow this appeal and to remit the matter to the industrial tribunal for them to consider what were the facts of this case. If the industrial tribunal find that it was the discovery of the facts relating to some other person doing, as the employee alleges, his job which for the first time reasonably enabled him to put forward a claim on the grounds that he was not, in fact, redundant (he having previously taken the view or been advised that he had no good right to complain of unfair dismissal) then, in our judgment, it would be open to the industrial tribunal to make the finding that it was not reasonably practicable for him to bring his complaint within the three months' period.

We must emphasise that our decision in this case is limited very much to the very unusual facts of this case. We are dealing here with an allegation that there is a discovery of a fact of fundamental importance the existence or non-existence of which makes a crucial difference as to whether or not there is a claim for unfair dismissal. Nothing in this decision should be taken as indicating that ignorance of facts of a less fundamental kind can or should be considered as providing a ground for saying that it is not reasonably practicable to present the complaint."

9. Well, consistent with the Churchill case, it could have been a fact that the ground on which Mr Churchill had relied - namely that the employment of the new man illustrated that his redundancy was only a pretext - had not existed as a fact at the point of his actual dismissal. Indeed, it might not have existed until well through the statutory three month period. The dismissal had been on 21 December 1981 and he could not say that the new man had been employed earlier than February 1982. To adopt the language of the Churchill case in the case before us, in the Langdon case can it be said that there was discovery of a fact of fundamental importance, the existence or non-existence of which makes a crucial difference as to whether or not there was a claim for unfair dismissal? We are of the view that there is arguably such a position. Referring to the charges that he had to face, Mr Langdon on 26 November 1996 wrote:

"It is scarcely credible that, if my motives were other than innocent, I would take them [the boys or young men] to my own lodgings, and make no attempt to conceal my name or what I did for a living or where I worked.

I cannot begin to fathom the motives of the young men for making the statements they have. It may be that they are confused; it may be that they need somehow to ease the situations they find themselves in with the authorities; it may be malice that what they saw as a potential income source dried up before it started. There could be a host of other reasons."

And he continued, a little later:

"There is evidence from [and then he mentions a particular boy] a pupil at the school. It is not completely accurate."

I should say that the statement began summarily rebutting or denying the allegations that were made against him. He said:

"1. I have never utilised Cardiff Bus Station to procure the services of rent boys.

2. I did not procure and engage in sexual acts with your men under the age of 18.

3. I did not procure young men under the age of 18 to perform sexual acts in my presence.

4. I did not engage in sexual acts with young men under the age of 18 whilst in the presence of persons again under the age of 18."

10. It was thus his own argument at the time that Cardiff Council was relying on dubious or inaccurate evidence as the citations from his statement show. Had he not resigned, as he did, but had he instead faced a material disciplinary process and nonetheless been dismissed and had he then presented an IT1, at or shortly after such a dismissal, he would have been able to present an IT1 asserting that Cardiff had failed to carry out a reasonable investigation and had dismissed him without having a reasonable belief in his guilt sustained by the outcome of reasonable investigation, basing himself on the inadequacy or dubious nature of the evidence against him. He would have been asserting, in such a case, that the well known Burchell test had been failed. Such a case could have been lodged within the three month period but such a claim would have been very different in character to the nature of the complaint which, in fact, he now seeks to proceed with. He says in his IT1:

"I now believe that the failure to disclose highly relevant information concerning the complainants, and the offer to accept my resignation (in the knowledge that I was under enormous pressure and facing a case apparently stronger than actually was) were breaches of the duty of trust and confidence Cardiff Council owed to me and that I was constructively dismissed."

11. Constructive dismissal by reason of a fundamental breach of duty on Cardiff's part is a very different type of case to that which would have been asserted as a failure of the Burchell test and such a case in constructive dismissal could, as it seems to us, at least arguably to depend on Mr Langdon's acquisition of knowledge of the accusers' previous criminal convictions. The discovery by him of that fact in late August 1999, the date which he gives for it in his own IT1, can fairly be argued, as it seems to us, to be of fundamental importance and to make a crucial difference to whether he could make a case for a breach of contract by Cardiff consisting of its failure to disclose that fact to him in breach of a duty of trust and confidence.
12. If the reasoning of the Tribunal below had considered and regarded such an argument on grounds disclosing no arguable error of law we would, of course, have stopped the matter going further. But there are at least arguable flaws in the reasoning of the Tribunal below. Thus, firstly, it is not clear what "case" they had in mind when they said that it was not reasonably practicable for Mr Langdon to have presented it in time. If it was his new IT1, namely a case for constructive dismissal based on Cardiff's alleged failure to disclose to him, the Tribunal should have shown how it was that Mr Langdon could have complained of a failure to disclose a fact to him earlier than when he first learned of the fact, namely late August 1999, a date already outside the three month period. Secondly, when a complainant's case is that information as to material facts has been withheld from him, in breach of a duty to disclose it to him, it is arguably unrealistic to assert, as the Tribunal did, that if he had asked for the information he might have got it, especially when, as is his case, he did not know that the material fact existed at the time. Thirdly, the Tribunal's assertion that he should have known from the fact that some of his accusers were on probation that there was a credibility issue available to him suggests that the Tribunal had in mind not Mr Langdon's unfair dismissal case, as presented, but rather a case of the Burchell kind, namely that the employer had no reasonable belief in the alleged misconduct, being a belief that was still sustainable after a reasonable investigation by the employer. But that, as we have said, is not the type of case which Mr Langdon was in fact advancing.
13. With some reluctance we allow the case of reasonable practicability as to the unfair dismissal claim to go forward to a full hearing. We say reluctant because it is far from clear that Mr Langdon's form of claim has any prospect of success. The IT3 asserted that he had not served two years and so could not have a claim for unfair dismissal under the law applicable as at 31 March 1997. Unfortunately, and we cannot see the reason for this, that was not ruled on at the preliminary issue by the Employment Tribunal but, on the face of things, it would seem to deny his claim for unfair dismissal.
14. Secondly, the existence of any duty on the Council of the kind which he alleges is doubtful, as also would be the question of whether its breach could be regarded as so fundamental as to justify constructive dismissal.
15. Thirdly, it is not improbable, given that the Witness Statements appear to have been designed to preserve the anonymity of the youthful accusers, that Cardiff itself did not know of the crucial convictions of the accusers at any material time and certainly proving that they did might prove at least difficult even were there to be a duty to disclose. Therefore, Cardiff might be found not to have been in breach of such a duty, were it to exist, as they did not know the information themselves at the time. Moreover, if, as the IT1 claims, Mr Langdon knew in late August of the convictions and not earlier, even so he has a further period of delay to explain until the IT1 was lodged on 17 November 1999. Mr Langdon must therefore not think that by our allowing the limited point before us to go forward to a full hearing, we are in any way suggesting that he has any prospect of ultimate success. So much for the constructive dismissal side of things.
16. There was another application to the Employment Tribunal. It was whether the Tribunal should have permitted the IT1 to be amended to include a claim for sex discrimination. Such a claim was first raised with the Employment Tribunal by a Solicitor's letter from Mr Langdon's Solicitors on 23 December 1999, some two and three-quarter years after his resignation. The Tribunal ruled, inter alia, that as they were striking out the claim for constructive dismissal they were not in a position to add an amendment to a claim that was being struck out. But they added that, in effect, in any event, they would not have allowed the amendment as it would not be just and equitable to allow the amendment within the provisions of section 76 (5) of the Sex Discrimination Act 1975. They dealt with the matter very briefly because they had struck out the IT1 and hence felt that could not amend it but they then added that it was, in any event, not just and equitable to permit the claim for sex discrimination to be added so late "for the above reasons", which we take to be a reference to it having been reasonably practicable to have presented the claim within three months of the resignation and certainly well before 23 December 1999. Reasonable practicability, of course, is comprehended not as such but as a general consideration which can fall for consideration within the far broader subject of the justice and equity of any extension. The Tribunal added:

"And also because of the detrimental effect the delay would have on evidence".

17. Ms Omambala, who appears for Mr Langdon today, has argued that there was a crucial difference that came to Mr Langdon's notice when, in the course of disclosure to him as late as October 1999, he learned that the young people concerned as his accusers were not under 16 but over 16. This, she argues, was a crucial fact which enabled, for the first time, Mr Langdon to see that he had a claim in sex discrimination. It was knowledge without which he could properly have taken the view that he had no such claim. We have difficulty in accepting that, but, even if we did, we are left with the substantial point that the Tribunal makes as to the detrimental effect of the passage of time on available evidence and also, of course, given that Mr Langdon accepts that the knowledge which, he says, was crucial came to him in October, there is no explanation of the further delay until 23 December 1999. We have to detect, if we are to assist Mr Langdon with this part of his case, some arguable error of law in the decision of the Tribunal not to allow amendment within the justice and equity test. It is, of course, a very broad test that has to be applied by the Tribunal and that makes it peculiarly difficult to point to error of law. In effect, Ms Omambala has to identify something that the Tribunal took into account which they should not have done or failed to take into account something which they should have done, or some other basic principle in respect of which error can be demonstrated. We have not been able to find any such error. We find no arguable error of law in their declining to allow amendment to add sex discrimination so late and, as to that, we dismiss the appeal but, as we indicated earlier, the issue as to reasonable practicability of the constructive dismissal case may go forward to a full hearing.