United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D Brown, Barrister Instructed by- Mentor Services 134 West Regent Street GLASGOW G2 2RQ
For the Respondent	Mr G Bathgate, Solicitor Of- Messrs Allan McDougall Solicitors 3 Coates Crescent EDINBURGH EH3 7AL

SUMMARY
TIME LIMITS

Reasonable practicability

The ET was wrong to conclude that it was not reasonably practicable for the C to present her OA within the 3 month period in circumstances where her solicitor left the matter until the last minute, and having gone on holiday, left it to a secretary to complete and fax to the Central Office on the last day of the 3 month period. The secretary failed to do so. She did not attend work through sickness although she was able to telephone. There was no evidence as to why she failed to alert the office of the need to issue the OA. ET failed to have regard to the absence of such evidence.


 


HIS HONOUR JUDGE SEROTA Q.C.:

1. This is an appeal from a decision of a Chairman at the Employment Tribunal at Dundee (Mr R G Christie) sitting alone at a preliminary hearing on the issue of whether the Complainant's application was time-barred. In a decision registered on 12 January 2005 Mr Christie held that it was not reasonably practicable for the Claimant to present her complaint within 3 months of the effective date of determination of her employment and that it was presented within a reasonable period thereafter within the meaning of section 111(2) the Employment Rights Act 1996 ("The Act"). The appeal (less one ground) was referred to a full hearing by His Honour Judge McMullen Q.C. on 7 March 2005.
2. We refer to the relevant factual background which we have gratefully taken from the decision of the Employment Tribunal. The Claimant joined the Respondent as an administrator in 1999. She was dismissed on14 June 2004, ostensibly on the grounds of redundancy. The Claimant maintained that her position was not made redundant and that a fellow employee was trained to carry out her work. She also asserted that the Respondent acted unreasonably in treating the redundancy as a sufficient reason for her dismissal. She claimed the Respondent did not conduct any meaningful consultation with her in relation to her job being at risk and did not explore with her the possibility of her being redeployed within the company. The Respondent is a wholly-owned subsidiary of a larger company. It produces and markets seed potatoes employing some 15 individuals. The Respondent disputes the Claimant's claim and maintains that she was dismissed by reason of redundancy as a result of a change in the Respondent's working practices with a result there was no longer a requirement for her post. On 18 June 2004 the Claimant met an official of her Trade Union who undertook to make arrangements for instructing solicitors to present a claim on her behalf. On 23 June 2004 Mr Bathgate, a partner in Messrs Allan McDougall & Co was instructed by the Trade Union. At this point in time the Trade Union had decided to concentrate all work in East Scotland with Allan McDougall & Co and with Mr Bathgate in particular. Mr Bathgate was the only lawyer in the firm dedicated to the field of employment law. He was a member of a small department doing court work (two partners with two assistants doing mainly reparation work). He only acquired an assistant to assist in employment work late in September. According to the Employment Tribunal in the intervening period "his increased case load required him to give priority to his cases according to their respective exigencies" (see paragraph 4 of the judgment).
3. Allan McDougall & Co operated a central "time-bar list" which provided a record to inform the various solicitors of dates by which action was required to be taken for each case. The Claimant's case was entered into that system because Mr Bathgate had identified that the complaint was required to be presented to the Employment Tribunal no later than 13 September 2004. On 6 September 2004 Mr Bathgate dictated the claim form. This was typed on 9 September and signed by Mr Bathgate on behalf of the Claimant. Some of the information required to be entered on to the form had not been made available to Mr Bathgate such as the Claimant's date of birth and her hours of work and pay.
4. On 10 June 2004 Mr Bathgate was due to go on holiday in France but he attended the office before leaving. The 10 September was a Friday. He was told by his secretary that she had been unsuccessful in attempting to contact the Claimant. He told her to continue with her attempts to contact the Claimant and obtain the information but to ensure in any event that the application was faxed to the Central Office of the Employment Tribunals no later than 13 September, even if the information was not to hand. The Employment Tribunal found that the secretary was an experienced secretary who was familiar with the preparation and presentation of claims to an Employment Tribunal. Mr Bathgate did not make provision for any of his partners or colleagues to check whether or not the application had been issued on 13 September.
5. Mr Bathgate's secretary fell ill over the weekend. She had failed to obtain the information on 10 September. The Employment Tribunal was satisfied (based on Mr Bathgate's understanding of the position) that the illness of the secretary was not such as would have prevented her from calling the office by telephone on 13 September to instruct someone else to issue the claim form. There was no evidence as to the nature of the secretary's illness but some idea of its gravity may be gathered from the fact she was able to return to work on 14 September, the following day. No evidence was led as to why she had failed to telephone the office of Allan McDougall & Co in relation to the Claimant's application. On 14 September the secretary attended the office, obtained information from the Claimant and sent off the completed form by fax. It was thus issued one day out of time.
6. The Respondent sought to have the claim dismissed by reason of its having been made out of time. The Claimant sought an extension of time under section 111(2)(b) of the Employment Rights Act 1996.
7. It is helpful to set out section 111(2) of the Act:-

"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 reasonable practicable for the complaint to be presented before the end of that period of three months."

8. We now turn to the decision of the Employment Tribunal. The Employment Tribunal recognised that the test for granting an extension of time was a "strict" test particularly where solicitors had been instructed by the Claimant to present the complaint. However the cases did not indicate that there was an absolute rule to the effect that in all cases where solicitors or other skilled advisers were handling such a case for an employee, and where the complaint was not presented in time, it could be said ipso facto that it was not reasonably practicable for it to have been lodged in time:-

"Whether a solicitor or other skilled advisor is instructed, the matter is still to be governed by the terms of the statute i.e. that the test remains one of reasonable practicability."

The Chairman reminded himself that the issue must always be determined according to the circumstances of each individual case. He reminded himself that the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 had made clear that the words "reasonably practicable" meant something between reasonable on the one hand and reasonably capable physically of being done on the other:-

"The best approach is to read "practicable" as the equivalent of "feasible" and to ask "Was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?"

9. At paragraph 19 the Chairman noted there was nothing amiss about an application presented on the last day (which on the particular facts of the instant case would have been 13 September) so that it seemed:-

"appropriate to focus upon the latter end of that three month period and to determine whether or not it was reasonably feasible to present in time. This requires a focus upon the circumstances surrounding the reason or reasons why that was not done."

10. The Chairman was satisfied (see paragraph 20) that but for the secretary's illness the application would have been faxed no later than 13 September. The Chairman was in no doubt that Mr Bathgate himself did everything that was reasonably feasible in the circumstances by leaving express instructions to his secretary who was knowledgeable and had experience in such matters. The Chairman refers to a submission made on behalf of the Respondent that Mr Bathgate could have left the instruction with another solicitor as distinct from his own secretary. He concluded:-

"It seems to me however that that suggestion is nothing to the point as it is equally possible that whoever he had left instructions with could have fallen ill and been unable to deal with the matter on the day in question. The instruction left by Mr Bathgate was of an administrative nature and involved a function which a qualified solicitor would be unlikely to have carried out himself in any event, i.e. the sending of a document by fax."

The Chairman then went on to say this:-

"22. it was also possible (apparently – although I cannot be certain of this on the basis of the evidence led) that Mr Bathgate's secretary was not so incapacitated by her illness that she could not have placed a telephone call to the office to instruct someone else to carry out the task. However it seems to me that such suggestions suffer to some extent from being the product of hindsight. The question is not whether such a course of action was physically possible, but whether it was "reasonably" feasible at the time. Was it reasonable to expect the secretary to call in from her sick bed?

23. Not without hesitation, I have concluded that I would not be prepared to go so far as that. It seemed to me that what arose was an unforeseen absence on the part of the secretary and that this created an impediment to the course of action which Mr Bathgate had devised and had expressly instructed should be carried out. In my view it would be "too restrictive an interpretation" (May L. J. in Palmer) to say that such was reasonably practicable in the circumstances.

24. Each of these cases has its own facts and circumstances and I have not found it easy to decide on which side of the line those in this case should fall; but on balance I conclude that everything that one could regard as reasonably feasible was done and that the failure to present the complaint in time arose from the unfortunate and unforeseen event of the illness of Mr Bathgate's secretary. I therefore conclude that it was not reasonably practicable for the complaint to be presented within the period of three months."

11. We now turn to consider the grounds of appeal. Before considering the specific grounds Mr Brown, who appeared on behalf of the Claimant referred to the decision of the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council. We have already referred to that decision but it makes clear that the answer to the question as to whether it was reasonably feasible to present the complaint to the Employment Tribunal within the relevant three-month period was essentially or pre-eminently an issue of fact for the Employment Tribunal taking all the circumstances of the given case into account. Mr Brown took us through the decision of the Employment Tribunal and pointed to certain findings of the Chairman which he suggested showed that he had fallen into error

(a) in paragraph 19 albeit there is nothing amiss about an application presented on the last day the Chairman should also have had regard to the fact that if a Claimant or a Claimant's solicitor deliberately chooses to leave the presentation of an application until the last minute serious risks are run. Although it might be appropriate to focus upon the latter end of the three-month period it is clear that the period as a whole needs to be considered

(b) in paragraph 20 Mr Brown submitted that the Chairman side-stepped the issue as to why the secretary who could have called in, never did. No evidence was offered and it was beside the point to say that Mr Bathgate did everything that was reasonably feasible in the circumstances. It was not Mr Bathgate as such who should have been the subject of critical examination; the focus should have been on the position of the Claimant's solicitors Allan McDougall & Co rather than Mr Bathgate.

(c) in paragraph 21 Mr Brown suggests that the Chairman was guilty of speculation, and unreasonable speculation at that, when he said that it was equally possible that a solicitor to whom Mr Bathgate had left the matter might have fallen sick. The fact that a solicitor would have been unlikely to send a fax himself was beside the point. A solicitor would be expected to check that his secretary or member of the administrative staff had done so.

(d) paragraph 22; the question as to whether or not Mr Bathgate's secretary could have telephoned was said to suffer to some extent from being the product of hindsight. The Chairman said:-

"The question is not whether such a course of action was physically possible, but whether it was "reasonably" feasible at the time. Was it reasonable to expect the secretary to call in from her sick bed?"

Mr Brown submitted that this failed to reflect the fact that no evidence was given as to why the secretary had not phoned in.

(e) paragraph 24; Mr Brown submits that this paragraph is wholly wrong in that it was in effect perverse to say that everything that one could regard as reasonably feasible was done and that the failure to present the complaint in time arose from the unfortunate and unforeseen event of the illness of Mr Bathgate's secretary.

12. Mr Brown's first ground of appeal was to the effect that the Employment Tribunal Chairman was wrong to focus on the end period of 10-13 September and ignore the preceding period. He drew attention to the decision of the Court of Appeal in Schultz v Esso Petroleum Company Ltd [1999] IRLR 488, a decision of the Court of Appeal. He stressed that this was a case in which the Claimant had instructed solicitors to correspond with the Respondent but had not instructed them to issue proceedings. He became ill within the last six weeks of the initial three-month period and the Employment Tribunal was satisfied he was too ill to give instructions to solicitors during that period. The fact that the solicitors had not been instructed to issue proceedings was a matter of significance; see paragraph 27. The Employment Tribunal (whose decision was upheld by the Employment Appeal Tribunal) had held that it was reasonably practicable for the proceedings to have been issued within the three-month period. Potter L J had this to say:-

"in accepting that the absence of disabling illness before 11 September was ipso facto decisive of the overall question, the IT failed to have regard to the fact that, whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aid to be achieved. In a case of this kind, the surrounding circumstances will always include whether or not, as here, the claimant was hoping to avoid litigation by pursuing alternative remedies. In that context, the end to be achieved is not so much the immediate issue of proceedings as issue of proceedings with some time to spare before the end of the limitation period. That being so, in assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way focus upon the reasonableness or, as here, reasonable practicability.

Thus, while I accept Mr Wynter's general proposition that, in all cases where illness is relied on, the tribunal must bear in mind and assess its effects in relation to the overall limitation period of three months, I do not accept the thrust of his third submission, that a period of disabling illness should be given similar weight in whatever part of the period of limitation it falls. Plainly, the approach should vary according to whether it falls in the earlier weeks or the far more critical later weeks leading up to the expiry of the period of limitation. Put in terms of the test to be applied, it may make all the difference between practicability and reasonable practicability in relation to the period as whole. In my view, that was the position in this unusual case. The way in which the IT expressed its decision indicates to me that it had its focus wrong and, in the light of the primary findings of fact which it made, misdirected itself in its approach to the question of reasonable practicability."

The decision in Schultz, submitted Mr Brown may well have been different had she given instructions, as was the position in the instant case, to issue proceedings.

13. The general rule as Mr Brown went on to submit is that a Claimant cannot rely on the error of his or her solicitors; see Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379. He also referred to but did not cite the decision in Camden and Islington Community Services NHS Trust v Kennedy [1996] IRLR 381. This case concerned an application posted to an Employment Tribunal at a relatively late stage in the three-month period which was not received by the Employment Tribunal. The solicitors apparently did not have a system in place which enabled the solicitor to find out contemporaneously whether the conduct of business was taking a normal course and to check at or near the time that replies which should have been received at a given date, had in fact been received. The EAT presided over by His Honour Judge Colin Smith QC said:-

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

14. Mr Bathgate on behalf of the Claimant submitted that this was in effect a perversity appeal and before the Employment Appeal Tribunal can interfere it must be satisfied that the finding by the Employment Tribunal that it was not reasonably practicable for the application to be presented within the three-month period was one that no Employment Tribunal properly directed could have concluded. This, he submitted was a very high test and drew our attention to the well-known passage in the decision in Yeboah v Crofton [2002] IRLR 634 of the Court of Appeal presided over by Mummery L J at paragraph 93:-

"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care'."

15. He went on to submit that having regard to the decision in Schultz v Esso, to which we have referred, it was quite appropriate for the Chairman to focus on the end of the period. In relation to the question as to whether a more effective system should have been set up for ensuring that application was presented within time, the Chairman concluded on the basis of the facts that this was not reasonably feasible. The issue as to reasonable practicability was a factual matter which had been properly determined by the Chairman and could not be revisited by the Employment Appeal Tribunal.
16. We now turn to our conclusions. We have regard to what was said by Lord Denning MR in Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 at para 19:

"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 has then 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"

We also have regard to the well established rule that Allan McDougall & Co, as the Claimant's solicitors, must demonstrate that have taken all the steps they should reasonably have taken, in the circumstances, to see that the application was timeously presented, see for example Lord Coulsfield in Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 at para 6. We are satisfied that the Chairman misdirected himself in law by focussing exclusively on virtually the last minute of the three-month period and ignoring the earlier period. He also failed to take account of the fact that if one deliberately leaves the filing of an application until the last day of the three-month period there are bound to be risks. A competent solicitor practising in the field must be taken to have appreciated the vital importance of complying with time limits strictly. Accordingly, if he were to show he had acted reasonably and without fault, he was bound to have in place a rather better system for ensuring that applications were issued within time when he was away from the office, than simply relying on his secretary to ensure that applications were properly issued.

17. We are also not satisfied that the Chairman adequately directed himself as to the facts. For example he failed to have regard to the fact that the burden remained on the Claimant to satisfy him that it was not reasonably practicable for the application to have been lodged within time. This was a matter of great importance because there was simply no evidence or explanation at all as to why the secretary had failed to contact the office. It is wrong, in our opinion to simply look at the matter from the perspective of Mr Bathgate's position, as the Chairman did. He needed to have considered the position of the firm of which the secretary was an employee. Given these errors of law and fact we consider that had the Chairman properly directed himself as to the law and taken account of the fact that no explanation had been given as to why the secretary, who was able to call in, did not do so, the Chairman, in our opinion would have been bound to find that he was not satisfied that it was not reasonably practicable for the application to be lodged in time.
18. Even if we were to be wrong in this regard and having regard to the high standard for a perversity appeal set out in the passage we have quoted from Yeboah v Crofton we consider that this decision was one that no reasonable Tribunal, properly directed, could arrive at. Looking at the facts as a whole it seems to us that it is impossible to say it was not reasonably practicable for the application to have been presented in time. The Claimant had instructed Allan McDougall & Co, through her Trades Union at an early stage in the proceedings. The application was not issued because the solicitor concerned was so busy that he had to leave the matter until literally the last minute. He had the application ready to send off save for a few details, which he himself recognised would not have prevented him from issuing the application if necessary. He went on holiday leaving the matter only to his secretary but left no one legally qualified to check that the important, indeed vital, time limit was adhered to. We were wholly unimpressed with the suggestion made by the Chairman that had the matter been left to a solicitor to send he might also have fallen sick. This does not excuse or explain the failure of the firm to issue the application in time. In the absence of any explanation from the secretary as to why she did not call in when able to do so, and in the absence of any system providing for another solicitor to check that the application was issued within time during Mr Bathgate's absence, it seems to us that it is impossible for any properly directed Tribunal to have concluded other than that it was reasonably practicable for the application to have been issued within time. The appeal must accordingly be allowed.