United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CATHERINE CALLAGHAN (of Counsel) Instructed by: Messrs Beachcroft Wansboroughs Solicitors 100 Fetter Lane London EC4A 1BN
For the Respondent	MR MICHAEL REED (of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ

SUMMARY

Time Limits

Reasonable to be extend time – Applicant believed had to exhaust internal appeal procedure before applying to Tribunal. Advice from Citizens Advice Bureau.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a decision of an Employment Tribunal sitting at London (Central) on 30 October 2003 who unanimously decided that it was not reasonably practicable for the Respondent to present her complaint of unfair dismissal within the three month time limit and that in presenting it on 15 August 2003 she did present it within a reasonable time thereafter. The Tribunal's decision was promulgated on 17 December 2003.
2. The Appellant seeks to appeal this decision on five grounds, the principal of which is that the Tribunal erred in law in failing to properly consider or apply section 111 (2) of the Employment Rights Act 1996, both by failing to take into account relevant considerations and by improperly having regard to irrelevant or impermissible considerations. They also contend that the Tribunal erred in law in that it reached a conclusion which was unsustainable on the evidence and/or which no Tribunal properly directing itself could have reached, in other words an allegation of perversity.
3. Section 111 (2) of the Employment Rights Act 1996 provides that:

"(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."

4. It is clear that this subsection imposes a two-stage test. Firstly, the Tribunal have to determine whether it was or was not reasonably practicable for the complaint to be presented within the three month time limit and if it was not practicable they must then determine within what further period it was reasonable for the complaint to be presented.
5. The Respondent was employed as a part-time assistant with the Appellant at their Pantheon Branch in Oxford Street from 1997 until her summary dismissal following disciplinary hearing on 17 April 2003. The Tribunal records that two days later on 19 April the Respondent had a short telephone conversation with the Citizen's Advice Bureau in Camberwell and in the course of that conversation was advised to exhaust the Appellant's internal procedures. It was a conversation lasting about 5 minutes and the Respondent did not recall any discussion about taking a complaint to a Tribunal. The Respondent then sought advice from the Appellant's Head Office about her rights of appeal and on 29 April she received an explanatory letter dated 24 April containing this final paragraph:

"Separately to any right you have under the Internal Appeal Procedures you may be eligible to have your case considered at an Employment Tribunal, but you would need to seek external advice on this."

6. On 29 April the Respondent sent her letter of appeal and indicated that she would be sending copies of all documents to the CAB and the Employment Tribunal. Thereafter the Internal Appeal Procedure went ahead. The Tribunal find that at all stages the Respondent complied with the Appellant's time limits, whereas the Appellant did not.
7. On 28 May the Respondent eventually received a notice of hearing of her appeal due to take place on 16 June 2003. The letter enclosed with it a leaflet "Internal Appeal Procedure – Your Guide". The guide sets out in some detail the various Tribunal jurisdictions and the qualifying service an employee needs to have in order to apply to a Tribunal, but there is nothing in the document to suggest that the Tribunal operates within strict time limits. At the end of the leaflet is the following paragraph:

"Independently of the internal appeal process, employees with one or more year's continuous service have the right to take a claim of unfair dismissal to an Employment Tribunal. If the claim is for discrimination (e.g. sex, race, disability, Trade Union activity or whistle blowing) there is no service criteria. You should seek independent legal advice in all of the above cases."

8. On 20 June the Respondent received a brochure and blank application form from an Employment Tribunal which had been passed to her by a former colleague at the Appellant. By this time the Tribunal find that the Respondent was experiencing difficulties with her university course. She was a trainee teacher at Roehampton College and because of problems she had experienced following her dismissal she had failed her course work and had had to postpone her teaching practice. She was allowed to do these in June and July but was not successful and her course placement was terminated by the University. The three month time limit under section 111 expired on 16 July but it was not until 31 July that she was notified of the unsuccessful outcome of her appeal hearing.
9. On 6 August she wrote back expressing her disappointment at the outcome and indicating her intention to pursue her complaint through an Employment Tribunal. She submitted her Originating Application dated 11 August by post and it was received by the Tribunal on 15 August. The Tribunal also found that at all stages the Respondent had been optimistic that her internal appeal would succeed and her first priority was in retaining her job rather than seeking any other redress against the Appellant.
10. The Tribunal's conclusions were contained in paragraphs 19 and 20 of their decision as follows:

"19. The Tribunal accepts Miss Williams Ryan's evidence that she believed that she had to await the outcome of the internal appeal before she could make a complaint to a Tribunal. She referred to the advice given by the Citizens Advice Bureau and also to the Respondent's internal guide. In the circumstances, we are satisfied that it was not reasonably practicable for her to present her complaint within the necessary time limits. She was not aware that in order to protect her position, she needed to present a complaint before the three-month time limit expired.

20. Although she had the Tribunal's form and the booklet in [her] possession from late June onwards, we accept that there were other, far more pressing, considerations which prevented her from studying this information, relying as she did, on the fact that she could proceed to the Tribunal after notification of the internal procedure, when she received notification of the appeal on 6 August and submitted her complaint to the Tribunal within a reasonable period thereafter."

11. Ms Callaghan for the Appellant criticises the Tribunal's approach, particularly in paragraph 20, for failing to ask themselves whether it was reasonably practicable for the application to be filed by 16 July rather than considering 6 August. However, in paragraph 19 the Tribunal do make it clear that their view was that "it was not reasonably practicable for her to present her complaint within the necessary time limits". We read paragraph 20 as a finding that it was certainly not reasonable to present before 6 August and thereafter a further delay of 9 days was not considered by them to be unreasonable.
12. Ms Callaghan referred us to a number of authorities to try to establish some principles that the courts have set out in dealing with the issue of time limits and incorrect and/or misleading advice received by proposed applicants.
13. In Dedman v British Building & Engineering Appliances Ltd [1974] 1 WLR 171 an employee had sought legal advice about his dismissal but his solicitors had failed to inform him that his complaint had to be presented within the then time limit which was 4 weeks. At page 177 Lord Denning MR said this:

"Summing up, I would suggest that in every case the tribunal should inquire into the circumstances and ask themselves whether the man or his advisers were at fault in allowing the four weeks to pass by without presenting the complaint. If he was not at fault, nor his advisers – so that he had just cause or excuse for not presenting his complaint within the four weeks – then it was "not practicable" for him to present it within that time. The court then has a discretion to allow it [to] be presented out of time, if it thinks it right to do so. But, if he was at fault, or if his advisers were at fault, in allowing the four weeks [to] slip by, he must take the consequences. By exercising reasonable diligence, the complaint could and should have been presented in time."

At page 179 Scarman LJ added:

"Does the fact that a complainant knows he has rights under the Act inevitably mean that it is practicable for him in the circumstances to present his complaint within the time limit? Clearly no: he may be prevented by illness or absence, or by some physical obstacle, or by some untoward and unexpected turn of events.

Contrariwise, does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion, no. It would be necessary to pay regard to his circumstances and the course of events. What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would be appropriate to disregard it, relying on the maxim "ignorance of the law is no excuse". The word "practicable" is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance. But what, if, as here, a complainant knows he has rights, but does not know that there is a time limit? Ordinarily, I would not expect him to be able to rely on such ignorance as making it impracticable to present his complaint in time. Unless he can show a specific and acceptable explanation for not acting within four weeks, he will be out of court."

14. In Wall's Meat Co Ltd v Khan [1979] ICR 52 the employee was summarily dismissed on 22 August 1976 and 9 days later he went to an employment exchange to draw unemployment pay and was told that the matter would go to a Tribunal and he would not get it for 6 weeks. On 19 November, three days before the expiration of the time limit, the employee saw a notice at the employment exchange saying that unfair dismissal proceedings must be commenced within 3 months. He thought his claim for unfair dismissal was proceeding before the same Tribunal that was dealing with unemployment benefit. On 9 December he was told that he was entitled to unemployment benefit but that he should go to a solicitor and have his claim for unfair dismissal put before an Industrial Tribunal. He went to see solicitors on 4 January, the day after the long Christmas holiday, and the application was sent off on 7 January. The Industrial Tribunal had found that it was not reasonably practicable for him to have presented the complaint by 22 November and that it had been presented within a reasonable further period. That decision was upheld by both the EAT and the Court of Appeal. At page 56 Lord Denning MR said:

"I would venture to take the simple test given by the majority in Dedman's case [1974] ICR 53, 61. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences."

At page 60 Brandon LJ said:

"Looking at the matter first without reference to the authorities, I should have thought that the meaning of the expression concerned, in the context in which it is used, was fairly clear. The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, it 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."

15. In Bodha v Hampshire Area Health Authority [1982] ICR 200 the employee was dismissed for professional misconduct on 23 December 1980 following disciplinary hearing. On 24 December the employers wrote to him informing him of their decision stating that any internal appeal should be made within 21 days.
16. The employee was advised by his Union Branch Secretary to use the internal disciplinary procedure and then, if that was unsuccessful, to make a complaint of unfair dismissal to an Industrial Tribunal, even if it meant that the application to the Tribunal would be late.
17. The internal appeal was dismissed on 15 April 1981 and thereafter the employee presented his complaint to an Industrial Tribunal. The Tribunal held that it was reasonably practicable for the complaint to have been presented in time and the employee's appeal was dismissed by this court. Brown-Wilkinson J giving the judgment of the court said this at page 204:

"The statutory test remains one of practicability. The statutory words still require the industrial tribunal to have regard to what could be done albeit approaching what is practicable in a common-sense way. The statutory test is not satisfied just because it was reasonable not to do what could be done.

…

Reasonably practicable means "reasonably capable of being done" not "reasonable".

Further, at page 205 he added:

"There may be cases where the special facts (additional to the bare fact that there is an internal appeal pending) may persuade an industrial tribunal, as a question of fact, that it was not reasonably practicable to complain to the industrial tribunal within the time limit. But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not "reasonably practicable" to present a complaint to the industrial tribunal."

18. Finally, in Trevelyans Ltd v Norton [1991] ICR 488 at page 491 Wood J giving the judgment of this court said this:

"From the cases, it is our view that the following general principles seem to emerge. The first, as time passes, so it is likely to [be] much more difficult for applicants to persuade a tribunal that they had no knowledge to their rights in front of industrial tribunals to bring proceedings for unfair dismissal under the Act of 1978 and, of course, that is less likely to be acceptable because the time limit has been increased from four weeks to three months. Second, that where an applicant has knowledge of his rights to claim unfair dismissal before an industrial tribunal, then there is an obligation upon him to seek information or advice about the enforcement of those rights. Third, that if his advisers give him unsound advice or fail to give him proper advice, or fail to give him advice on a relevant issue, then the failure of those advisers is the failure of the applicant and does not provide a good excuse for the escape clause… Lastly, in the light of the foregoing principles, it is the duty of an industrial tribunal to make detailed and exhaustive enquiries of the applicant once it is established that he had knowledge of his rights."

19. Mr Reed for the Respondent has taken us to a more recent authority, London International College Ltd v Sen [1993] IRLR 333. In that case the employee was dismissed on 9 July 1990 and thus the time limit expired on 8 October. He knew that he had a right to complain of unfair dismissal and that there was a three month time limit. It was not certain as to when the three months in fact expired. His solicitor had told him that the application should be filed on or before 9 October and subsequently a Tribunal member of staff confirmed that the expiry date was 9 October and he presented the application on that date, one day too late. The Industrial Tribunal held that in view of the erroneous advice given by the member of the Tribunal staff, it had not been reasonably practicable for the employee to present his complaint in time. The EAT had dismissed an appeal against that decision and concluded that there was no rule of law that the mere fact of consulting a solicitor makes it then and thereafter absent any physical supervening circumstances reasonably practicable to present an application in time. The question is one of fact in every case.
20. The Court of Appeal dismissed the appeal and rejected the suggestion that when a prospective complainant consults a solicitor or trade union official or similar adviser he can no longer say that it was not reasonably practicable for him to comply with the time limit even if the adviser advised wrongly. Sir Thomas Bingham MR giving the judgment of the court said at paragraph 13:

"13. Secondly, Mr Pitt-Payne contended that the Industrial Tribunal ought to have concluded that, once Mr Sen had consulted a solicitor, it became reasonably practicable for him to present his application in time. He advanced as a point of principle that, once a prospective complainant seeks advice from a solicitor or other skilled adviser, then he is bound by any error the adviser may make and cannot thereafter contend that it was not reasonably practicable for him to present the complaint in time.

14. Mr Pitt-Payne drew our attention to two authorities in particular, the first of them Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 and the second Riley and another v Tesco Stores Ltd [1980] IRLR 103 (CA). Those authorities, Mr Pitt-Payne contended, gave support to the principle for which he contended.

15. I would for my part accept that those authorities, and in particular the passages referred to, do lend support to the proposition for which Mr Pitt-Payne contended. When a prospective complainant consults a solicitor or a trade union official or similar adviser, the authorities do suggest that he can no longer say that it was not reasonably practicable for him to comply with the time limit even if the adviser advised wrongly.

16. I must, however, say that, for my part, I find the rationale of that principle very hard to understand. If the test is whether it was reasonably practicable or practically possible or reasonably feasible to present the complaint in time, it would seem to me irrelevant whether or not the complainant had consulted a solicitor. That would seem to me to be a possible approach to the language of the section but it is one which previous authority has firmly rejected and such authority has concentrated on the state of mind of the prospective complainant and the extent to which he under- stood his position. If, however, it is his state of mind and his understanding of his position which matters, it seems strange to me that a complainant who is misled by incorrect advice into misapprehending his rights is unable to rely on the escape clause provided in s.67(2). If the rationale is that he cannot rely on the escape clause because in such circum- stances it is his adviser and not the employer who should compensate him, then there would appear, as the authorities suggest, to be a distinction between a solicitor who is prima facie liable for misleading advice and other sources of advice which are not, or may not be, liable for giving incorrect advice. In the second category I would put an employee of an Industrial Tribunal whose liability for incorrect advice is at best far from clear.

17. I do not for my part find it easy to apply these principles because, as I have indicated, I do not find it easy to understand them. I question, however, whether the earlier cases were really purporting to lay down a rule of law to govern what is essentially a question of fact, and I am not persuaded that the prospective complainant loses for all time his rights to rely on the escape clause in s.67(2) absolutely once he consults a solicitor potentially liable for wrong advice if, as in the present case" he distrusts that advice and immediately proceeds to obtain further advice from a body such as an Industrial Tribunal which may not be so liable. That, in effect, was the decision both of the Industrial Tribunal and of the Employment Appeal Tribunal and I do not, for my part, feel able to say that they were wrong in law to reach the conclusion that they did."

21. Ms Callaghan firstly argues that the fact that the Respondent received wrong or incomplete advice from the CAB in respect of time limits cannot constitute a relevant factor in determining whether it was reasonably practicable for her to present her claim within the three month limit, relying in particular on the dicta from the Wall's and the Trevelyans cases, cited above. However, insofar as those earlier cases sought to set down general principles, we believe that they must be read in the light of the approach taken by Sir Thomas Bingham in the Sen case, which is to concentrate on the state of mind of the prospective complainant and the extent to which he or she understood his position. In this case there was a clear finding from the Tribunal that as a result of the CAB advice the Respondent believed that she had to await the outcome of the internal appeal before she could make a complaint to the Tribunal.
22. Ms Callaghan then argues that even taking the CAB advice at face value, there were enough triggers thereafter during the three month period to alert her as to the need to check that advice or seek further advice. She reminds us of the two letters from the employers on 24 April and 28 May advising the employee of a right to claim unfair dismissal, the fact that the employee herself on 29 April was intending to send copies to the Tribunal clearly indicating that she must have been aware of the existence of a right to go to the Tribunal and lastly the fact that by 20 June she was in possession of an ET brochure and application form, which brochure as admitted by the parties would have contained advice about time limits.
23. Mr Reed submits that the Tribunal dealt with these issues properly. In relation to the letters from the Appellant the Tribunal found them "insufficient and misleading". We do not find these comments, as Ms Callaghan suggests, to impose an obligation on employers to advise ex-employees about Tribunal time limits, but rather as in the context of this case, where the employee's mind had been fixed with the notion that the internal appeal had to be exhausted before application made to the Tribunal, none of the Appellant's letters sent to the Respondent whilst mentioning the existence of Tribunal proceedings, gave any indication that the advice that she had previously received was incorrect.
24. Ms Callaghan also criticises the Tribunal for themselves criticising the employers over their delays in conducting the internal appeal procedure and that this was not a permissible factor to be taken into account on the test of reasonable practicability. Again, we read the Tribunal's reasons only as suggesting that there was no blame to be attached to the Respondent for the fact that the internal appeal procedure did not conclude until after the three month time limit. In other words, they were suggesting that had the employee delayed over the internal appeal procedure that was a factor that would have been held against her on the issue of presentation of her claim.
25. We fully accept that the existence of an internal appeal procedure is not by itself a reason for failing to commence proceedings, but that in the context of this particular case the Tribunal found that she had received advice that she should await the outcome of that procedure before making a complaint to the Tribunal.
26. Ms Callaghan also suggests that the Tribunal in considering the Respondent's personal difficulties with her university course took into account an irrelevant consideration, but again the Tribunal in assessing the Respondent's state of mind were in our view entitled to consider that as a factor in assessing why the Respondent had not taken action particularly in response to the application form and brochure that she had received on or around 20 June.
27. Finally, Ms Callaghan submits that once, as in this case, the dismissed employee was aware of her right to make a claim, then ignorance of the time limit is not per se a ground for granting extension of time. In order for any ignorance to render it not reasonably practicable to comply with the time limit, the ignorance must itself be reasonable. As Brandon LJ said in the Wall's case:

"While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries."

28. However, we do not read the passage as meaning that no applicant who is aware of their potential remedy but is ignorant of time limits could show that it had not been reasonably practicable to present their claim in time. That would be to disregard the intention of the legislation which is to leave this as a question of fact to individual Tribunals.
29. In this case the Tribunal carefully analysed the employee's state of mind following the advice that she had received from the CAB and concluded that

"19. She was not aware that in order to protect her position, she needed to present a complaint before the three-month time limit expired."

30. We can find no fault in the Tribunal's approach on this issue, nor indeed the other issues that we have outlined and we do not agree that the Tribunal's conclusions can be regarded as perverse and/or unsustainable on the evidence before them, bearing in mind the high standard that this court imposes upon an Appellant to satisfy the perversity test.
31. Accordingly, we dismiss this appeal.