United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR WORRALL (of Counsel) Instructed by: Messrs Listers Solicitors Ltd Austin House 33 Manor Row Bradford BD1 4PS
For the Respondent	MR KIRTLEY (of Counsel) Instructed by: Messrs T I Clough & Co. Solicitors 24 Sunbridge Road Bradford BD1 2TD


 


HIS HONOUR JUDGE SMITH QC

1. This is an appeal by Listers Solicitors Ltd, the Respondent's employers before the Employment Tribunal against the decision of an Employment Tribunal held at Leeds on 9^th April 1999 of which extended reasons were sent to the parties on 30^th April 1999. Whereby the Employment Tribunal held on a preliminary question that it had jurisdiction to consider that Applicant before them, Mr Lambert's complaint of unfair dismissal against the solicitors.
2. Mr Lambert had been employed as a Probate Clerk by the solicitors Listers Solicitors Ltd until his dismissal on 2^nd November 1998. Before we come to the arguments that were addressed to us on the hearing of the appeal and consider the submissions made to us, it is necessary for us to set out the facts as they were found by the Employment Tribunal so that the matter could be put in its proper context. It appears from the findings of the Employment Tribunal that it was common ground that the effective date of termination of Mr Lambert's contract was 2^nd November 1998. It was thus clear that for the originating application to be presented in time in accordance with the 3 months time limit, it had to be presented by 1^st February 1999. The Employment Tribunal that although the complaint had been presented by the Applicant's solicitor, Mr Hussain four days late on 5^th February 1999 when as we say the 3 month period expired on 1^st February 1999, they held that they were satisfied, it was not reasonably practicable to present it in time and that it had been presented within a reasonable further period within Section 111(1)(b) of the Act. It is against that finding that it was not reasonably practicable to present the complaint in time, that of course the appeal is directed before us today.
3. The Employment Tribunal found that the originating application had been posted by first class post to the Regional office in Leeds on 18^th January 1999, a fortnight before the deadline by the Respondents solicitor, Mr Hussain of Messrs T I Clough & Co. and the Employment Tribunal went on to hold further that Mr Hussain had in place what the Employment Tribunal described as a quality procedure which required a diary note to be made 2 weeks and a day from the date of posting to check that the usual acknowledgement had been received from the Tribunal. On the findings of the Employment Tribunal, in consequence, the file was first checked in accordance with that quality procedure on 3^rd February 1999 by Mr Hussain's secretary, ie; after the expiry of the relevant time limit when it was found that the Tribunal office had no record of receiving the application with the result that a further copy of the originating application was faxed the following day, 4^th February 1999, arriving on 5^th apparently, 3 days out of time. The Employment Tribunal found that there must have been an unexplained and unforeseeable postal failure, but that Mr Hussain had in place what they held to be a proper sufficient and reasonable quality procedure and thus did what could reasonably be expected of a reasonably diligent solicitor to check whether the conduct of business was taking a normal course.
4. The Employment Tribunal considered in paragraph 8 of its decision, the relevant authorities, to which they had already been referred by Counsel, namely, St. Basil's Centre –v- McCrossan [1991] IRLR 455, Capital Foods Retail Limited –v- Corrigan [1993] IRLR 430 and Camden and Islington Community Services NHS Trust –v- Kennedy [1996] IRLR 381 and concluded in paragraph 8 that the solicitors had a reasonable system in place. They considered that the solicitors system did enable the solicitors to find out sufficiently contemporaneously whether the conduct of business was taking a normal course and so they thought it complied with the principles laid down in Capital Foods –v- Corrigan as followed by the Employment Appeal Tribunal in the later decision of Camden and Islington Community Services NHS Trust –v- Kennedy. The Employment Tribunal concluded that those cases did not impose upon a solicitor an absolute duty to ensure that every application which he puts in the post is actually received in time. The Employment Tribunal stated that this would be to put an unacceptable gloss on the wording of Section 111. So that is a summary of the Employment Tribunal's decision, of course for the full reasoning of their decision it is necessary to look at the decision itself, we have done no more than summarise the decision.
5. Before us, Mr Worrall, Counsel on behalf of the Appellants solicitors, Listers Solicitors Ltd, submitted to us that the Employment Tribunal erred in law, in that they misunderstood and misapplied the appropriate test as developed in the cases in deciding whether or not the system of checking by the Applicant's solicitor was a reasonable system. He submitted that it is clear from the authorities that where an Applicant who is minded to present a complaint to an Employment Tribunal is represented by a solicitor and the solicitor chooses to post an application to the Tribunal, he must have in place a system which allows the solicitor to be able to make a check before the expiration of the 3 months time limit as to whether the application has in fact been received by the Employment Tribunal within the time limit. Mr Worral submitted that to be a reasonable system, the system must be designed to guard against the possibility that something has gone wrong with the post before the time limit expires. The system, to be reasonable must carry with it the ability to lock the stable door before the horse has bolted, that is not to impose, submits Mr Worrall and absolute duty upon the solicitor to ensure that applications are received in time. It requires no more than that there be in place a system suitably designed to achieve that simple end, thus if for some good reason or another the system breaks down, why then it may well be not reasonably practicable to present the complaint in time.
6. Mr Worrall submits that the test as to what is a reasonable system in these circumstance when one is considering the position of a solicitor acting for an Applicant and having the conduct of the matter must reflect the stringency of the requirement that time limits for complaints to Employment Tribunals are to be strictly observed and the vital importance of complying with time limits strictly. He submitted that judged against these perfectly reasonable criteria, Mr Hussain's system was demonstrably inadequate. On the facts here the first check under Mr Hussain's would inevitably be made after the 3 month period had expired, namely on 2^nd February 1999 when the time limit had expired on 1^st February 1999, thus the system in place did not allow the solicitor to make any check before the period expired as to whether the complaint had been lost in the post. The inevitable effect of Mr Hussian's system was if the complaint was lost in the post that it would have to be presented out of time. Mr Worrall submitted that that cannot be a reasonable system. Mr Worrall submitted that whilst it is a question of fact, whether it was reasonably practicable to present a complaint in time, the Employment Tribunal here have failed to apply the test correctly since that they have held that the case was supported and that it was reasonable to have in place a system which did not allow a check to be made within the 3 month period, whereas the principle laid down by Corrigan and Camden properly construed is that there must be in place a system which is so designed as to provide for checks to be made before the expiry of the time limit, ie; that the conduct of business is taking its ordinary course in the context of the rules as to time limits in proceedings before Employment Tribunals.
7. Mr Kirtley on the other hand, Counsel on behalf of the Applicant for the Tribunal, Mr Lambert and the Respondent before us of course, submitted that it is clear from the Court of Appeal the decisions in Palmer –v- Southend on Sea Borough Council [1984] ICR 372 and the case of Schultz –v- Esso Petroleum Company Limited [1999] ICR 1202, another Court of Appeal decision, that the question of reasonable practicability is a question of facts for the Employment Tribunal and it is only in rare circumstances that the Employment Appeal Tribunal is entitled to intervene and he drew to our attention the important passage in Palmer in Lord Justice May's judgment, particularly at page 385 between b and f and also the passage in Lord Justice Potter's judgment in Schultz, particularly at page 1209 between g and h, we have of course those passages fully in mind. He submitted that the effect of Mr Worrall's submission would be to elevate the requirement that a reasonable system should be in place beyond its proper place in the scheme of things and in this way fetter the discretion of the Employment Tribunal to consider all the surrounding circumstances and to reach conclusion of fact, whether or not it was reasonably practicable to present the complaint in time. He submitted that the Employment Tribunal were entitled to reach the conclusion it did and we should not interfere.
8. We have considered this matter carefully and have unanimously concluded here that the Employment Tribunal did with respect to them misapply the test laid down by the Employment Appeal Tribunal in Corrigan as followed in the Camden case. In our judgment the starting point must be that the solicitor acting for the Applicants, who is intending to bring proceedings in the Employment Tribunal, should be expected to take reasonable steps to ensure that so far as is reasonably possible, that time limits are complied with in relation to those proceedings. In our judgment, in order to do so there must be in place some system which if it works properly would provide for a check to be made that a complaint which has been entrusted to the post has in fact arrived in time before it is out of time. The check to be made before it is out of time. In other words the system must prompt a check to be made with the relevant Tribunal office before the expiry of the 3 month period and not after it. Such a requirement in our judgment is plainly reasonable and reflects the aim to be achieved by the system, namely the vital aim of ensuring compliance with time limits, judged by this standard in our judgment, Mr Hussain's system was demonstrably flawed since he did not allow for any check to be made until after the expiry of the time limit. In our judgment such a system does not fulfil the standard set in Corrigan, namely the taking of all reasonable steps to see that the application was timorously presented to use the wording of that case. Mr Hussain's system could not achieve that purpose since its implementation, however efficient, only provided for a check to be made after the time limit had expired. We repeat what was said by the Employment Appeal Tribunal in the Camden case, namely

"a competent solicitor practising this field must be taken to appreciate the vital importance of complying with time limits strictly and have in place a system designed to ensure that such limits are complied with at the time when they are supposed to be being complied with"

9. We conclude that with respect the Employment Tribunal either misunderstood the test laid down in the cases or alternatively reached a conclusion which was demonstrably wrong on this occasion, since it had the result that the Employment Tribunal held that it was not reasonable practicable to present a complaint in time, despite the fact that the solicitors did not have in place a system which provided for a check to be made that the complaint had been received by the Employment Tribunal before the expiry of the time limit. We consider that any experienced litigation solicitor if asked whether a system was reasonable when it involved no check before the expiry of the relevant time limit, would be bound to accept that it was manifestly deficient. For those reasons we consider that the proper order is and we will hear Counsel on this in any event since we have not actually heard submissions it, but we consider that the proper order that we should make is to allow the appeal and subject to hearing Counsel, to substitute our decision, that it was reasonably practicable to present the complaint in time with the result that the complaint for unfair dismissal will be dismissed as being out of time. But we repeat, before we actually make that order as flowing from our judgment, we will hear Counsel on that matter.
10. We have considered carefully after hearing submissions, what order we should make in all the circumstances here, we are of course allowing the appeal. The question is whether we should make an order substituting our own decision for that as a Tribunal or whether we should remit the case for a rehearing before a different Tribunal. We have concluded that we have reached a decision as a result of the misdirection in law that we have found that the Employment Tribunal here have reached a plainly wrong decision on the facts that they found. We have concluded that those primary facts are plain and do not require amplification or reinvestigation and accordingly the correct order for the Employment Appeal Tribunal to make in the circumstances is to substitute our own decision for that of the Employment Tribunal based of course on the facts that were found by the Employment Tribunal and accordingly our order is that it was reasonably practicable for the complaint to be presented in time and since it was presented out of time, the complaint for unfair dismissal must be dismissed.