United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PHILTON MOORE (Representative) CCRS (UK) PO Box 556 Enfield Middlesex EN1 3JZ
For the Respondent	MR STEVEN LANGTON (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF

SUMMARY

Time Limits

Claims presented to Employment Tribunal 11 minutes out of time - Employment Tribunal's decision that it was reasonably practicable to present complaints of unfair dismissal, unlawful deduction of wages and breach of contract within the three month period upheld – balance of prejudice inapplicable under the "reasonably practicable" test.


 


THE HONOURABLE MR JUSTICE BEAN

1. The Appellant, Sandra Fishley, was dismissed from her employment with the Respondent, the Working Men's College, on 10 December 2003. She presented a claim to the Employment Tribunal, alleging unfair dismissal, unlawful deductions from wages, breach of contract and race discrimination, by fax transmission at 11 minutes past midnight on the morning of Monday 10 March 2004.
2. The London Central Employment Tribunal, under the Chairmanship of Professor Neal, decided that her complaints of unfair dismissal, breach of contract and unlawful deductions from wages were out of time and were dismissed. They decided that her complaints of unlawful racial discrimination and victimization, insofar as they related to matters up to and including 9 May 2002, were out of time and were dismissed, but the discrimination and victimization complaints, insofar as they related to matters arising out of disciplinary proceedings initiated on 28 May 2002 and culminating in the Applicant's dismissal on 10 December 2002, though out of time, should be heard on their merits on the grounds that it was just and equitable that they should be heard.
3. The starting point is that the Employment Tribunal were undoubtedly correct to hold that all the claims were out of time, albeit by only 11 minutes. The tests for unfair dismissal, deduction from wages and breach of contract are essentially the same, and it is convenient simply to set out the wording of section 111(2) of the Employment Rights Act 1996, which relates to unfair dismissal. That provides, by subsection (2), that 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. Dealing with subsection (2)(a) first, it is clear that the period of "three months beginning with the effective date of termination" means that, if the effective date of termination is 10 December 2003, the last date for presentation of the complaint is 9 March 2004. In the present case, the last date was a Sunday. Until the decision of the Court of Appeal in Hetton Victory Club Ltd v Swainston [1983] ICR 34 it was thought that in such cases that time was extended to the Monday, being the first date on which the Tribunal Office was open. However in the Hetton case the Court of Appeal held that this was wrong and ever since then the position has been that even if the last date of the period is a date on which the Tribunal Office is closed, it is nevertheless the relevant date for the purposes of section 111(2)(a).
5. The next issue to consider is that contained in section 111(2)(b), namely whether it was reasonably practicable for the complaint to be presented before the end of the period of three months. It is very well established that this is an issue of jurisdiction, not merely of procedure, and even if the employer does not raise the issue, it is the duty of the Employment Tribunal to do so. The mandatory words saying that an Employment Tribunal "shall not consider a complaint" in section 111(2) make that clear as do many authorities which it is unnecessary to recite. For the sake of completeness we add that the statutory provisions relating to deduction of wages claims (Employment Rights Act 1996 section 23) and breach of contract claims (Article 7 of the Employment Tribunals (Extension of Jurisdiction) England and Wales Order 1994) are materially identical to the unfair dismissal provision in section 111(2) of the 1996 Act.
6. The problem the Appellant faced in this case is not the words "within such further period as the tribunal considers reasonable". No doubt if that were the only hurdle in an Applicant's path the Tribunal would take little persuasion that an extension of time of 11 minutes was reasonable. The real problem is the requirement that, in order to extend time in an unfair dismissal case, the Tribunal has to be satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. The test for unfair dismissal, deduction of wages and breach of contract alike is not whether it would be just and equitable to extend time. That is part of the test in considering discrimination complaints. We shall come to the discrimination part of this case later in the judgment.
7. The argument presented by Mr Moore, who has appeared before us on Miss Fishley's behalf, is that the statutory purpose of limitation provisions, whether the Limitation Act itself or the equivalent provisions for employment cases such as section 111(2) of the 1996 Act, is to prevent tribunals from being burdened with stale claims; to ensure that evidence is reasonably fresh, and thus the best available; and overall to ensure fairness and justice. As part of that exercise, he argues, the Tribunal should consider the question of prejudice to the Applicant if it refuses an application for extension of time.
8. At first this sounds an attractive argument, but the reasonably practicable test for extension of time in unfair dismissal and other employment claims has stood for 30 years, and there is no trace in the authorities of the suggestion that the Employment Tribunal can have regard to the question of prejudice in order to tip the balance in favour of an Applicant who is out of time where the reasonably practicable test applies. If there were such a principle, then we would expect many of the reported cases to be decided, or at any rate argued, on an entirely different basis. For example, in the recent Court of Appeal case of Consignia plc v Sealy [2002] ICR 1193, a complaint of unfair dismissal was put in the post on a Friday when, as in the present case, the last day of the three month period was Sunday. Due to delay in the post, the complaint did not reach the Employment Tribunal until Tuesday. There was then an extended discussion before the Tribunal, the Employment Appeal Tribunal and the Court of Appeal about whether the Applicant could reasonably expect that a letter posted on Friday should arrive on Saturday, rather than on Monday. The Court of Appeal reversed this Tribunal on that issue. But there is no trace in the judgments of the Court going on to consider whether, even if the Applicant failed, as they held he did, on this ground, nevertheless the Tribunal could and should have carried out a balancing exercise as to whether the prejudice to the employers in allowing the claim to proceed when it had been presented two days out of time was outweighed by the obvious prejudice to the Applicant in being shut out at the door of the Tribunal on a jurisdictional issue.
9. It appears to us that the question of prejudice simply does not arise in the causes of action governed by the reasonably practicable test. The position is quite different in discrimination cases, as in personal injury cases, and we shall come to the discrimination case later.
10. The next aspect of the argument on the unfair dismissal, deduction from wages and breach of contract claims is that it was not, Mr Moore argues, reasonably practicable for the Applicant to present the case in time when she only had nine days between her solicitor withdrawing from the case and the expiry of the three month period. It has again been long established, for example from the decision in Wall's Meat Co Ltd v Khan [1979] ICR 52 at p57, that whether it was reasonably practicable for an Applicant to present an Originating Application to the Tribunal in time is a question of fact for the Employment Tribunal. It is not for us to say whether we would have determined the issue in the same way. It is only for us to say whether the Tribunal erred in law, and we are quite satisfied that they did not.
11. The final point on these causes of action is that Mr Moore argues that the Applicant's printer broke down at the last moment. She had very sensibly completed the formal parts of the ET1 form by hand, and typed on her computer the quite extensive statement in which she sets out the narrative of her complaints. She had successfully word processed that on the computer, and was trying to print it out with a view to faxing it when the printer malfunctioned. Mr Moore relies upon another part of the judgments in Wall's Meat Co Ltd v Khan, where Brandon LJ, as he then was, said at page 60F:

"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."

12. We do not doubt the correctness of that dictum as far as it goes, but it is not addressed to the question of what happens where the "impediment" only lasts for a short time. The more usual case, as in Wall's Meat Co Ltd v Khan itself, is where, throughout the three month period, the employee has a mistaken belief as to his rights in law. Another example is where for all or most of the three month period an Applicant acting in person is so seriously ill that he or she simply cannot physically present the complaint.
13. But here the difficulty with the printer only arose at the last moment. Again this was a question of fact for the Employment Tribunal, and they took the view it was reasonably practicable for the complaint to be presented in time. We must say it is the common experience of anyone who has tried to operate a computer, a printer, or a fax machine, that they are temperamental creatures and one cannot rely on success first time within a few minutes. We think that if the presentation of an Originating Application is left to the very last moment, then a temporary impediment, such as the breakdown of a piece of office equipment or something of that kind is one of the risks of life which has to be taken. The Tribunal were well entitled to find that it does not bring the Applicant within the escape clause.
14. The reasonably practicable test is, as the Court of Appeal have said, a strict one. It may be, in the view of some people, a harsh one, certainly in regard to an Applicant who is only 11 minutes late. But nevertheless it is quite clear to us that the Tribunal were entitled to find as they did, and this part of the appeal must fail.
15. We turn to the discrimination complaints. We have already set out the findings of the Tribunal. Section 68(1)(a) of the Race Relations Act 1976 provides, again in mandatory terms, that:

"(1) An [employment tribunal] shall not consider a [race discrimination] complaint… unless it is presented to the tribunal before the end of

(a) the period of three months beginning when the act complained of was done."

There is a further subsection which is not applicable in this case.

16. Again, albeit only by 11 minutes, the complaint is plainly out of time, at least to that extent, but in a discrimination case there are two escape clauses which are much wider than in an unfair dismissal complaint. The first is section 68(6)

"(6) A court or tribunal may nevertheless consider any such complaint, claim or application 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 second escape route is section 68(7)(b):

"(7) For the purposes of this section- …

(b) any act extending over a period shall be treated as done at the end of that period;"

17. In their Decision the Employment Tribunal said this:

"20. It is not in dispute that the presentation of the Applicant's complaints was outside the time limit provided by section 68(1) of the 1976 Act.

21. That being the case, the Tribunal has considered whether, by virtue of the powers granted by section 68(6) of the 1976 Act, it would be just and equitable nevertheless to consider the Applicant's complaint. In approaching that question the tribunal has noted the parallel statutory wording contained in section 76(5) of the Sex Discrimination Act 1975, and reminded itself of the guidance on the exercise of that power in the context of claims alleging unlawful discrimination by reason of sex contained in case-law since the decision in Hutchinson v Westward Television [1977] ICR 279.

22. Having considered all the circumstances of the case, the Tribunal is of the view that a distinction needs to be drawn between the various acts complained of which were alleged to have taken place up to and including 9 May 2002, and those which arise out of disciplinary proceedings initiated on 28 May 2002 and culminating in the dismissal of the Applicant on 10 December 2002.

23. In the view of the Tribunal, the matters complained of which were alleged to have taken place up to and including 9 May 2002 were matters which the Applicant was well aware of and informed about during the relevant period. They were furthermore matters of a kind which the Applicant had direct experience of handling herself, and were matters about which the Applicant and her advisers appear to have done little or nothing by way of consideration with a view to proceedings before the Tribunal. In the light of the remarkable neglect of those matters by the Applicant and her advisers, the Tribunal is of the view – even if we were to discount (which we do not) considerations of practical problems and prejudice occasioned by reason of the time lapse which has occurred between the dates of the alleged acts and the present – that it would not be just and equitable to hear those complaints notwithstanding their having been presented out of time.

24. The Tribunal therefore dismisses the complaints of unlawful race discrimination and victimization raised by the Applicant in respect of matters alleged to have taken place up to and including 9 May 2002.

25. In relation to the complaints of unlawful race discrimination and victimization raised by the Applicant in respect of matters arising out of disciplinary proceedings initiated on 28 May 2002 and culminating in the dismissal of the Applicant on 10 December 2002, however, the Tribunal takes a different view. It is our unanimous view that this group of complaints – which, for the avoidance of doubt, do not on the evidence before us appear to constitute a "continuing act" of the kind envisaged by Their Lordships in Barclays Bank plc v Kapur [1991] IRLR 136 – comprises matters which, in all the circumstances of this case, we consider it to be just and equitable that they be considered notwithstanding that they have been presented out of time.

26. The Tribunal therefore finds that the Applicant's complaints of unlawful racial discrimination and victimization in so far as they relate to mattes arising out of disciplinary proceedings initiated on 28 May 2002 and culminating in the dismissal of the Applicant on 10 December 2002 are out of time but it is just and equitable that they should be heard."

18. The Employment Tribunal do not expressly consider whether the pre and post May 2002 matters constituted an "act extending over a period" within the meaning of section 68(7)(b) of the Act, as interpreted in, for example Hendricks v Commissioner of Police for the Metropolis [2003] ICR 530. By implication they hold that there was not an act extending over a period, since that was their finding in respect of the disciplinary procedure leading up to dismissal. Unfortunately they do not give the reasons for the latter conclusion. This is understandable given their Decision that it would be just and equitable to extend time, and the issue did not really arise on the later period, but it makes it difficult for us to know the rationale for the finding, which might be used as the rationale for the implicit finding in relation to the earlier acts.
19. We have great sympathy with the Employment Tribunal, who may have been distracted by the large number of legal submissions presented to them, some of which were not seriously arguable. But it seems to us that the Applicant was entitled to a decision with reasons, not necessarily lengthy, as to whether the pre and post May 2002 acts can be considered to amount to "an act extending over a period" within the meaning of section 68(7)(b): if so, why and if not, why not. This is simply a feature of the general duty traditionally ascribed to the decision in Meek v City of Birmingham District Council [1987] IRLR 250 and more recently to the Court of Appeal judgment in English v Emery Reimbold & Strick Ltd [2003] IRLR 710: on any significant point in issue in the proceedings, the loser is entitled to be told why he has lost.
20. We therefore allow the appeal to the extent of setting aside finding 2 on the first page of the Tribunal's Decision that the complaints of unlawful racial discrimination and victimization, insofar as they relate to matters up to and including 9 May 2002, are out of time and must be dismissed.
21. We remit to the same Employment Tribunal, which will hear the post-28 May 2002 discrimination and victimization claims on the merits, the question of whether there is jurisdiction to hear the pre-9 May 2002 matters by virtue of section 68(7)(b) of the 1976 Act, or of that subsection in combination with the discretion to extend time on the grounds that it is just and equitable. Plainly a decision that it would not be just and equitable to grant an extension of time of seven months or more does not necessarily lead to the conclusion that it would not be just and equitable to grant an extension of one day, or a fraction of a day, if that were to be the conclusion to which the Employment Tribunal came. Whether they do in fact reach that conclusion is entirely a matter for them, and it is also entirely a matter for them whether they think it appropriate to consider the issue which we have remitted to them at the start of proceedings before hearing evidence on the complaints which they have already allowed to proceed, or to postpone that decision until after they have heard the evidence.
22. It is of course the position that in a discrimination case the Applicant may rely on matters occurring prior to those which are advanced or permitted to be advanced as grounds of complaint in themselves, by way of background material which throws light on the actions of which complaint is made directly: see, for example, Eke v Commissioners of Customs and Excise. But it is very much a matter for a Tribunal to what extent it allows matters which are background material, as opposed to direct causes of action, to be developed in detail. The fact that background material can be brought forward should not, in our view, be the basis of turning what might otherwise be a relatively straightforward discrimination complaint into a kind of wide ranging public enquiry, going back over many years. So it will be a matter for the Tribunal's discretion and case management how to handle the case on remission.
23. We should mention one or two other matters in conclusion. Firstly, there was an application to the Tribunal to review its Decision, which was refused. An appeal was entered against that refusal. Mr Moore has sensibly not argued that before us today, and if it had been pursued we would have dismissed it without hesitation. This was plainly not a case within the limited jurisdiction of a Tribunal to review.
24. Secondly, Mr Moore's written grounds of appeal and submissions to the Employment Tribunal contained an attack on the reasonably practicable test as being out of conformity with the obligations of the Tribunal under Article 6 of European Convention on Human Rights. This was a bold submission, which he did not repeat in oral argument. In our judgment it is unsustainable.
25. Finally, we are grateful to both advocates for the moderate way in which the oral argument was presented to us today. The written grounds of appeal were somewhat vehement in their criticisms of the Employment Tribunal. There is, in our view, not a shred of evidence of bias or partiality on the part of the Employment Tribunal in this case and we hold that they were correct on every point except one, which is the one on which we have remitted the issue to them for further consideration. No court or tribunal is infallible, but it does not assist the process of justice when criticisms of a tribunal are pitched quite so high. However, as we say, the matter was dealt with very sensibly today and we accordingly make the orders to which we have referred.