United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A NAWBATT (of Counsel) Instructed by: Messrs Hammonds Solicitors 2 Park Lane Leeds LS3 1ES
For the Respondent	MR C HUTCHINSON (of Counsel) Instructed by: Newcastle Law Centre First Floor 1 Charlotte Square Newcastle upon Tyne NE1 4XF


 


SUMMARY
Time limits

ET decision to extend time in an unfair dismissal case because it has not received his IT1 in time and he acted promptly after limitation period had expired upheld.

No error of law to appeal.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Decision of an Employment Tribunal sitting in Newcastle upon Tyne on 7 July 2003 and 30 September 2003. The Chairman was Mr J D Myers and the members were Mrs R A Davison and Mr J W Robinson.
2. This was a preliminary hearing and the unanimous decision of the Employment Tribunal was that:

"the Applicant's Originating Application was not presented within the statutory time allowance (it was posted but never arrived) and was presented after the time limit as soon as was reasonably possible in the circumstances and it is just and equitable to extend time to allow this Originating Application to proceed at a date to be fixed."

The Decision was entered in the Register and copies were sent to the parties on 15 October 2003.

The Employment Tribunal Decision

3. The Extended Reasons are relatively short and can therefore be set out in full.

"1 This matter is a preliminary hearing to determine whether this Application was presented within time and, if not, whether time should be extended. The Applicant has given evidence. Mr Etienne Attala, Solicitor, has appeared on the Applicant's behalf. Mr Jason Springer, Solicitor, has appeared on behalf of the Respondent, Royal Mail and at the adjourned hearing he called Mr Bob McGuire, full time CWU official to give evidence.

2 The Originating Application of Mr Thomas Spence of 39 Beech Grove Road, Newcastle upon Tyne, NE4, was presented to this office of Employment Tribunals on 7 April 2003. In his Originating Application he stated that his date of dismissal was 20 December 2002, and therefore without straining the calculator very much, it is obvious that there is a late presentation of this Application. We find that the date of 20 December 2002 is the date when the employment terminated.

3 The Applicant was a Royal Mail postman who had been employed from as far back as May 1988. He was dismissed, he complains, because of the "unfair application of Royal Mail's attendance procedure". He asks for a declaration of unfair dismissal and reinstatement.

4 On 7 July 2003 we heard Mr Spence give evidence and we heard submissions, but it was because the Applicant was quite certain in his evidence that he had never been told by CWU representatives that there were time limits, that Mr Springer made the application (which we felt obliged to allow) to have this case adjourned so that some member or members of CWU would be able to come to give their evidence, and hence, although one or two possible days were set which had to be adjourned here on 30 September 2003 and we have heard Mr McGuire.

5 Mr McGuire is, and has been for a number of years, a CWU official. We find that he, on a number of occasions told the Applicant that there were time limits that he must follow and obey.

6 What is really at issue is the credibility of the Applicant. He said in the first hearing that he had not been told of time limits nonetheless, he was quite certain and unshaken in his evidence that between 17 February and 20 February of this year, he sent by post his ET1 application to this Tribunal Office. His evidence which is uncontested was that either at the end of March or early April 2003 he found out that he ought to present a fresh application because the Employment Tribunal Office had no record of receiving his Application. We are therefore left with a single point in this case. Is Mr Spence telling us the truth? Did he in fact send an Originating Application through the post sometime in February? If he did, then he attempted to present it within the requisite statutory period of time. This is a case of an Originating Application that has not been received at all, so the issue is "Is Mr Spence telling us the truth?" Mr McGuire told him about time limits of that we have no doubt. We disbelieve Mr Spence if he in any say suggests to the contrary. But he did, he says, post off the Application and we have no reason not to believe him. There is only his word for it that between February 17 to 20 he sent it off.

7 We are satisfied that he is telling us the truth and that it just has not arrived. It has been lost in the post somewhere between his home, his nearest post office and this Tribunal office in Newcastle on the Quayside. We have no reason to disbelieve Mr Spence. We find on the balance of probabilities, and he has the onus of proving it, that he did post his Originating Application.

8 Because there was a delay eventually the penny of doubt dropped in his mind. We refer to page 2, paragraph 6, of this proof of evidence:

"As a result of speaking with that colleague I went straight down to the Union 8 room and they telephoned the Tribunal on my behalf. The Tribunal Offices had no record of having receiving my application and I assumed that it had got lost in the post. I immediately completed a fresh application and faxed it to the Tribunal. I then followed it up by putting the application in the post."

Mr Spence tells us and we note, that at the same time a letter to the Inland Revenue was also lost in course of posting.

9 At the last hearing the Chairman reminded the parties that there had been a recent case questioning whether the same standard applied to ordinary folk as applies to solicitors and similar organisations that are familiar and regularly come to Tribunal. Thanks to Mr Springer's diligence, we have the judgment of the Employment Appeal Tribunal in the case of Mrs D Grossman v Barnet Health Care. Reference EAT/0134/01 given on 22 February 2002. We find that that case is to be applied here. In that decision earlier cases of Palmer v Saunders in 1984, Capital Foods v Corrigan in 1993 are referred to. In the judgment the learned judge presiding in the Employment Appeal Tribunal says this:

'We agree with the Employment Tribunal's view expressed in C v Slate Quarry case that there is on the authorities a world of difference between a case in which an Applicant acting in person submits an application in good time, so that in the normal course of post, it would be received in time and has no alarm bells sounding when the Tribunal takes several weeks (as in this case) to acknowledge receipt of the application, and on the other hand the circumstances which pertain where the Applicant is acting through a firm of solicitors whose professional duty encompasses having in place systems which will alert them when applications sent in good time are not acknowledged as having been received in what they will know "to be the normal course of business".

Mrs Grossman was an ordinary soul we may respectively describe her as such and Mr Spence is as well. However much he knew about time limits through Mr McGuire or anybody else, did he know, could he have known that it is prudent to get in touch with Employment Tribunal within a matter of few weeks if you have not had the necessary letter through the post acknowledging your Originating Application?

10 In our judgment there is no way that he could know about the practice of Tribunals and the decisions that have been referred to in the Employment Appeal Tribunal and other places. There is no way that Mr Spence could know anything like that. We are quite satisfied that, therefore, he came to this Tribunal as soon as there was a problem; he did something about it as soon as he knew through his colleague who has been unnamed and who we have not seen, but we are prepared to accept is alive and well and perhaps living not that far away from this Tribunal. We are satisfied that when he was aware because the union or somebody from the union room told him there was no record of presentation at this office that he did something about it.

11 So, first of all, was the application presented in time? We believe the Applicant sent it through the post but presentation of course requires it to come to the Tribunal through its post box or wherever is designated as the proper place for receiving applications. It never arrived. What did arrive, arrived through fax and then by the post and it arrived on 7 April 2003, it is date stamped as such, and we can see it before us now. We are satisfied that it was not presented in time because it never arrived, but it was presented within such a reasonable time thereafter as was in all the circumstances appropriate and that it is just and equitable to extend the time to allow this matter to proceed. We rely on Grossman and the observations therein. For these reasons, and unanimously, we accept that this case shall and must proceed to a hearing on merits on a date to be fixed."

The Notice of Appeal

4. The Notice of Appeal alleges a number of errors of law which were helpfully expanded on by Mr Nawbatt for the Appellant in his Skeleton Argument and in his oral submissions. We are grateful to him and Mr Paul Draycott who prepared the Respondent's helpful Skeleton Argument and to Mr Hutchinson, who represented the Respondent before us.
5. We deal with the arguments put forward by the Appellant in what we hope is a logical order. First, Mr Nawbatt argued that the Employment Tribunal applied the wrong test in deciding whether or not to extend time to permit this application for unfair dismissal to proceed out of time. We have set out above what the Employment Tribunal actually said and it is clear that it used language in the record of the Decision at the beginning and in paragraph 11 of the Decision which appeared to indicate a confusion between two quite different statutory tests. Section 111 (2) of the Employment Rights Act 1996 sets out the test for an Employment Tribunal to apply in extending time in a complaint of unfair dismissal. It says this:

"111. -

    (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."

Section 111(3) has no application to this case.

6. By contrast, the test for discrimination claims is different. For example, section 76(1) of the Sex Discrimination Act 1975 also specifies a three month limitation period, but section 75(5) says this:

"(5) 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."

7. We have already pointed out the apparent confusion in the language used by the Employment Tribunal. The choice of language is unfortunate and is to be regretted. However, it is quite clear from the remainder of the Employment Tribunal's Decision that the evidence it heard and the Decision itself is addressed solely to the reasonable practicability test under section 111(2) of the Employment Rights Act 1996. That was the correct test in this case which was one of unfair dismissal. Mr Nawbatt does not seek to argue that the use of the language alone constitutes an error of law, but rather directs his criticism to the substantive Decision of the Employment Tribunal when it decided to extend time.
8. Mr Nawbatt's primary submission is that time limits are strict and that any exception to them does indeed have to be exceptional. He relies upon Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 at paragraphs 6-7 per Lord Coulsfield; Camden & Islington Community Services NHS Trust v Kennedy [1996] IRLR 381, headnote and paragraphs 1, 5 and 15 per His Honour Judge Colin Smith QC; Grossman v Barnet Healthcare [EAT/0134/01 unreported) at paragraphs 13 - 14 per His Honour Judge Alan Wilkie QC and Peters v Sat Katar [2003] IRLR 574, headnote and paragraph 14 per Peter Gibson LJ.
9. From those authorities, Mr Nawbatt submits that there are three separate categories of applicant. They are as follows:

(i) An applicant in person,

(ii) An applicant in person who has the benefit of trade union or other advice (e.g. Law Centre or Citizens Advice Bureau).

(iii) An applicant who is represented in the sense that the name and details of his representation appear on the Originating Application.

10. Mr Nawbatt goes on to argue that in the present case it is clear that Mr Spence had the benefit of trade union advice in that he was

(a) a member of the Communication Workers Union; (b) after Mr Spence's dismissal on 27 September 2002, but before the effective date of termination on 20 December 2002, a Mr Robert McGuire, who was a full-time union official, held a pre-appeal interview with Mr Spence on 20 November 2002 at which he confirmed that Mr Spence had three months from the effective date of termination of his employment to submit a claim to the Employment Tribunal. He told him what that date would be, i.e. 19 March 2003. He advised Mr Spence to arrange a meeting with another union official (Mr John Woodhouse) in order to receive instructions as to how to fill out and submit the Originating Application.

(b) Mr Spence did not in fact attend the meeting arranged with Mr John Woodhouse on a date between 20 and 26 November 2002.

(c) Following Mr Spence's appeal hearing, Mr McGuire again advised Mr Spence that he had a right of appeal (should the appeal be unsuccessful) to pursue the matter in an Employment Tribunal, and again reminded him of the need to submit an application prior to 19 March 2003.

(d) Following the dismissal of Mr Spence's appeal, Mr McGuire again informed Mr Spence of the need to submit an application to the Employment Tribunal prior to 19 March 2003.

All of those facts appear from the witness statement of Mr McGuire: EAT bundle pages 53 - 56. Mr McGuire gave evidence for the Appellant at the Employment Tribunal.

11. From these facts Mr Nawbatt invites us to agree that there are indeed three categories of applicants, as set out above, and that Mr Spence falls into the second category. Throughout the relevant period of time he was a member of the Communication Workers Union and had the benefit of advice from Mr McGuire, and could have had the benefit of advice from Mr Woodhouse, if he had chosen to attend the meeting which had been arranged for him. Mr Nawbatt goes on to argue that even if Mr Spence did post his first Originating Application to the Employment Tribunal between 17 - 20 February 2003, he should have made enquiries with his Union when he did not receive a response by the expiration of the statutory time limit on 19 March 2003, i.e. some four weeks later. Mr Nawbatt concedes that an ordinary applicant, who has no advice or representation, might not be expected to contact the Employment Tribunal office and find out what has happened to their Originating Application and why they had not heard from the Employment Tribunal office. However, he submits that Mr Spence falls into his second category and therefore the Employment Tribunal made an error of law in finding that it was not reasonably practicable for the complaint to be presented within the three month limitation period.
12. Mr Hutchinson submits that the Employment Tribunal applied the correct test, i.e. the test under section 111(2) of the Employment Rights Act 1996. He points to the fact that Mr Spence's first application to the Employment Tribunal was in time by some month. The Employment Tribunal found as a fact that Mr Spence did post that first application between 17 and 20 February 2003: Decision paragraphs 6 - 7. That first Originating Application was not received by the Employment Tribunal at all. It was therefore necessary for the Tribunal to look at the date of the second Originating Application and the explanation for it being sent on that date. In this case the explanation was that Mr Spence spoke to a colleague, and as a result of that became aware of a problem, because the colleague, who had also lodged an application, had had a communication from the Employment Tribunal. As a result of that Mr Spence went straight to his union office, lodged an application the same day i.e 7 April 2003: Decision paragraph 8; Mr Spence's witness statement paragraphs 5 - 7. There was also evidence before the Employment Tribunal that at the time of posting his first Originating Application to the Employment Tribunal Mr Spence had posted his P45 to the Inland Revenue and that that letter had also not arrived: Decision paragraph 8; Mr Spence's witness statement paragraph 8.
13. We agree with Mr Hutchinson. In our judgment, it is not helpful to try to sharply categorise applicants in the way that Mr Nawbatt has suggested. While we can see a clear distinction between an applicant who is represented and one who is not, it seems to us there are a number of sub-categories in Mr Nawbatt's second category. These could range from advice given by a trade union, a Citizens Advice Bureau, a Law Centre, an employment consultant, a colleague at work, a friend who had himself or herself conducted an unfair dismissal claim or who had appeared before an Employment Tribunal as a representative. There are no doubt other situations we have not thought of. While we can see the logic of the case law distinguishing between an applicant who is represented and one who is not, we can see no useful purpose that would be served in carving out a third category which is so uncertain. There is no authority for such a proposition. We reject it. In our judgment, the discretion of the Employment Tribunal should not be fettered in this artificial way. It is far better to approach the application of the statutory discretion on a case by case basis. It is a matter for the Employment Tribunal to reach a decision depending on the facts of the case. Only if there is error of law can such a decision be successfully appealed.
14. Mr Nawbatt's second submission is that the Employment Tribunal made an error of law in that it failed to make any reference to the fact, or have sufficient regard to the fact, that Mr Spence was a member of the union and the function of the union in this situation was to give him advice; in particular he refers us to the Decision at paragraphs 9 - 11 and Mr Spence's witness statement paragraph 5: EAT bundle page 51. He argues that the Employment Tribunal did not ask itself the right question when it looked at the facts of the case. Having posted his Originating Application between 17 and 20 February 2003 Mr Spence took no action to check with the union as to whether he should or should not have had a reply from the Employment Tribunal's office or whether he would get a reply, or when a reply might reasonably be expected to arrive. In other words, Mr Nawbatt argues that if Mr Spence had checked with his union between 20 February 2003 and 19 March 2003, the fact that the Originating Application had not arrived at the Employment Tribunal's office would have been discovered and a second Originating Application could have been lodged in time.
15. It is important to notice that Mr Spence filled in his first Originating Application himself. He had obtained it from the Job Centre through a friend who was going there. He did not consult the union about what information should go into that first Originating Application. Indeed, it is perfectly possible that he was not greatly enthused about the assistance he had been given from the union at that time, because he had specifically been told by Mr McGuire that Mr  McGuire did not think that his case was strong enough to warrant the union representing him in the Employment Tribunal: Mr McGuire's witness statement paragraph 12, EAT bundle page 55.
16. In our judgment, the factual position, i.e. that Mr Spence did not speak to the union or seek its advice between 20 February 2003 and 19 March 2003, is quite clear from the facts found by the Employment Tribunal. There was no suggestion in any evidence before the Employment Tribunal that Mr Spence had spoken to or consulted the union: see his witness statement EAT bundle pages 50 - 52 and that of Mr McGuire: EAT bundle pages 53 - 56. It is therefore inevitable that the Employment Tribunal would have had that fact in its mind when it reached its decision. We can find no error of law here. Neither can Mr Spence be criticised for not consulting his union during this period.
17. Mr Nawbatt's next submission is that the Employment Tribunal made an error of law in finding that the application was presented within such period as was reasonable, as required by section 111(2)(b) of the Employment Rights Act 1996. In support of this submission, he repeats his earlier submission. For the reasons we have already given, we find no substance in it.
18. In the alternative, Mr Nawbatt submits that the Decision of the Employment Tribunal is perverse, for the reasons he has already advanced. Again, we find no substance in this ground of appeal.
19. Finally, Mr Nawbatt submits that the Employment Tribunal fell into error when it said that it had "no reason to disbelieve Mr Spence" when he gave evidence to the effect that he had posted his first Originating Application between 17 and 20 February 2003, and because it had not arrived, it must have been lost in the post somewhere between his home, his nearest Post Office and the Employment Tribunal office in Newcastle upon Tyne. The Employment Tribunal properly applied the civil standard of proof, which is the balance of probabilities, with the onus of proof being upon Mr Spence: Decision paragraph 7. The argument here is that the Employment Tribunal had specifically disbelieved Mr Spence when he asserted in his evidence that the union had never advised him about the three month time limit. The Appellant had called Mr McGuire to give evidence on its behalf and the Employment Tribunal accepted Mr McGuire's evidence: Decision paragraph 6. We can see no difficulty in an Employment Tribunal accepting part of an applicant's evidence and rejecting another part. Indeed, if that were not possible, it is difficult to see how the trial process would operate at all. In this case, the Employment Tribunal had the benefit of seeing Mr Spence giving evidence; they also heard from Mr McGuire, who was called by the Appellant. On one part of Mr McGuire's evidence they disbelieved him. On another part they believed him. That is the judicial function performed by the Employment Tribunal. They were fully entitled to do so. In our judgment, there is error of law here.

Conclusion

20. The essence of the Appellant's attack upon the Employment Tribunal here is upon the exercise of its discretion. Having heard all the evidence, the Employment Tribunal made the findings of fact that it did and we refer in particular to paragraph 10 of its Decision. Based upon those findings of fact, the Employment Tribunal decided that it was not reasonably practicable for Mr Spence to present his claim in time, i.e. by 19 March 2003 and that the further period of time between that date and 7 April 2003 was reasonable in this case. Those are findings which it is open to the Employment Tribunal to make on the facts as found by it in this case. There was no error of law and the appeal is dismissed.