United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J STONE (Of Counsel) Instructed by: Messrs Christian Khan Solicitors 42 Museum Street Bloomsbury London WC1A 1LY
For the Respondent	MR M A HAY (Of Counsel) Instructed by: Messrs Pollard Associates The Old Mill Reedness Road Swinefleet East Yorkshire DN14 8EN

SUMMARY

2C

Time Limits – just and equitable extension

Adequacy of reasons – Perversity.


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Ms Anderson, the Claimant, against the reserved Judgment of a Chairman, Mr R Postle, sitting alone at the Watford Employment Tribunal on 17 August 2005 at a Pre Hearing Review, holding that it would not be just and equitable to extend time for filing her claims of unlawful sex and race discrimination against the Respondent, George S Hall Ltd. That Judgment was promulgated with Reasons on 5 September.

Background

2. The Claimant commenced employment with the Respondent or its predecessor in June 1997. On 23 December 2004 she was given notice of dismissal by reason of redundancy to take effect on 10 February 2005.
3. On 13 January 2005, before the expiry of that notice, the Claimant, who has no legal training or experience, took advice from a solicitor, Mr David Rommer of Christian Khan solicitors. She was advised that she had potential claims against the Respondent of unfair dismissal, race and sex discrimination. She was advised to appeal internally against her dismissal and to submit a written grievance.
4. Unhappily Mr Rommer mistakenly read the provisions of the Employment Act 2002 (Dispute Resolutions) Regulations 2004 (The Regulations) to meant that provided the Claimant complied with step 1 of the Statutory Grievance Procedure, regulation 15(1) of the Regulations operated so as to extend the normal primary time limit of 3 months for the discrimination claims by a further 3 months, thus taking the last date for lodging those claims from 9 May to 9 August 2005. His view of the Regulations overlooked regulation 6(5), which provides that neither the standard nor modified grievance procedures apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee.
5. Based on that misapprehension Mr Rommer did not lodge the claim until 24 May. For completeness I should add that the claim of unfair dismissal was later withdrawn, leaving only the two discrimination claims lodged 14 days out of time.
6. Thus the sole issue before the Chairman at PHR was whether it was just and equitable to extend time under section 76(5) of the Sex Discrimination Act 1975 and section 68(6) of the Race Relations Act 1976.

The Chairman's decision

7. In directing himself as to the law the Chairman referred in his reasons to Chohan v Derby Law Centre [2004] IRLR 685 (EAT, HHJ McMullen QC presiding) and Nwoke v London Borough of Brent (EAT 1137/02. 18 July 2003. Unreported. Wall J presiding) and British Coal Corporation v Keeble [1997] IRLR 336. (EAT, Janet Smith J, presiding), all cases on the just and equitable extension provision.
8. He paid particular attention to the factors relevant to the court's exercise of discretion to extend time in personal injury cases under section 33 of the Limitation Act 1980 imported into the just and equitable extension jurisdiction under discrimination statutes as modified by Smith J in Keeble.
9. In order to balance the prejudice which each party would suffer as a result of the decision to be made, the Chairman considered each of the five factors identified in section 33. They are:

"…a) the length of reasons and for the delay: b) the extent to which the cogency of the evidence is likely to be affected by the length of the delay: c) the extent to which the parties should have co-operated with any request for information: d) the promptness for which the Claimant acted once she knew of the facts giving rise to the course of action: e) the steps taken by the Claimant to obtain appropriate professional advice once she knew of the possibility of taking action."

10. His findings are at paragraph 7.7 to 7.11.

"7.7 Dealing with the length of and reasons for the delay, one accepts in this case that the length of delay was only 14 days but one has to look at the reasons for the delay, there were none other than incorrect advice the solicitor and failure to understand the rules an regulations in relation to the Dispute Regulations. Clearly having raised the grievance in writing on behalf of the Claimant on 22 March a response was received on 29 March, there was no reason whatsoever why the solicitor could not have issued the proceedings at the end of 28 days following the 22 March at which point he would still have been in time. The only reason for the non issue offered by the Claimants solicitor was his work was time limit driven and as he thought the claim did not have to be registered until August he simply did nothing.

7.8 The extent to which the cogency of the evidence is likely to be effected by the delay, clearly in this case that is not likely to have occurred if one simply looks at the main thrust of the Claimants claim namely that she suffered sex and race discrimination when she was selected for her redundancy.

7.9 The extent to which the Party sued cooperated with the request for information, clearly in this case the Respondents responded very quickly to the Claimants grievance letter of 22 March namely by reply on the 29 March. Allowing for the 28 days to elapse following the 22 March there is simply no reason why the claim could not have been issued at that stage again within the time limits.

7. 1 0 The promptness with whim the Plaintiff acted once he or she knew the facts giving rise to the cause of action, again it is slightly unclear at which stage the solicitor acting for the Claimant realised that the last date for filing the claim was the 9 May but certainly a period of 2 weeks elapsed before that realisation occurred.

7. 11 Finally the steps taken by the Plaintive to obtain appropriate professional advice once he or she knew of the possibility of taking action, clearly, this case even before the Claimants redundancy became effective she was taking legal advice on the 13 January 2005 and was certainly advised at that stage that she had a potential claim for unfair dismissal race and sex discrimination."

11. Having made those findings the Chairman concluded at paragraph 7.12:

"7.12 Taking all those factors together this is not a case where the Tribunal feels that it is appropriate to extend its discretion on the justice and equitable principle..."

12. Further, the Chairman went on to consider, although he said not a major factor, the merits of the claims. His findings on this aspect are expressed thus at paragraph 7.13:

"7.13 On this aspect it was quite dear to the Tribunal that on matters the Claimant advances as part of her claim going back to 2003 are very unclear as to the specific incidents dates and times and indeed during the course of this hearing the Claimant has expanded further on matters not previously raised. It is true to say as Mr Pollard (appearing for the Respondent) advanced that the claims put forward by the Claimant today are far greater than those made out in replies to Further and Better Particulars which again were only received the day before this hearing having been requested by the Respondents some time in June. It is therefore fair to say that the case certainly in relation to events of 2003 has little prospect or success and if one looks at the original claim which sets out the alleged less the favourable treatment on the grounds of sex or race is not greatly assisted in any event by the replies to Further and Better Particulars provided by the Claimant."

13. In these circumstances he declined to exercise his discretion in favour of extending time.

The Appeal

14. I shall deal separately and cumulatively with the Chairman's approach to extending time regardless of the merits and then the merits finding.
15. I bear in mind that the Tribunal has a broad discretion to refuse or grant an extension of time under the just and equitable principle. Hutchison v Westward Television Ltd [1977] IRLR 68. I can only interfere with that exercise of discretion where an error of law is made out. Has the Chairman taken into account irrelevant factors; failed to take into account relevant factors, misunderstood and/or misapplied the law or otherwise reached a perverse conclusion in the Wednesbury sense? Additionally, his reasons must be Meek-compliant.
16. At paragraphs 11 to 16 of Chohan Judge McMullen helpfully summarized the principles to be applied in this exercise of discretion; an approach later endorsed by HHJ Burke QC in Baynton v South West Trains Ltd [2005] ICR 1730, paragraph 55. In particular, whereas the receipt of wrong professional advice will not assist a Claimant seeking to rely on the reasonably practicable escape clause in Employment Rights Act limitation cases, see for example, Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379, it is a relevant consideration in considering the just and equitable extension discretion, see for example Hawkins v Ball [1996] IRLR 258, paragraph 28, per Keene J. I also respectfully adopt the observation of the Court of Appeal in the Personal Injury case of Steads v Peveral [2001] EWCA Civ 419, paragraphs 38 to 40 that the failure by a legal adviser to enter proceedings in time should not be visited upon the Claimant for otherwise the defendant (here the Respondent) would be in receipt of a windfall. See also Chohan, paragraph 16. The delay should not be held against the Claimant personally where the fault lay solely with his or her adviser. Steads, paragraph 40, per Sir Christopher Slade. A similar view was expressed by HHJ Burke, in the context of the just and equitable discretion in Baynton at paragraph 57. Based on those authorities I reject Mr Hay's submission that, as with the reasonably practicable question, the default of an adviser is to be treated as the default of the party retaining that adviser.
17. Against that setting I return to the Claimant's approach to the five factors identified in section 33 of the Limitation Act and applied, with modifications, by Smith J in Keeble

(a) the length of the delay was only 14 days. The sole reason for that delay was the fault of the Claimant's solicitor. She bore no personal responsibility for that delay

(b) the cogency of the evidence was not affected by the 14 day delay

(c) there is no criticism of the Respondent

(d) the Claimant acted promptly in approaching a solicitor for advice during the notice period. I accept Ms Stone's submission that the Chairman appears to have misunderstood this factor. He answers the question not by reference to what the Claimant did, but what her solicitor did. How that affected the balancing exercise undertaken by the Chairman is wholly unclear. An exercise to which I shall return shortly.

(e) the Claimant took prompt steps to obtain legal advice.

18. If that is the proper analysis of the Keeble factors how then did Chairman balance the respective prejudice to the parties, that being the ultimate question? Again, I accept Ms Stone's submission that it is wholly unclear from the Chairman's reasons. He merely states his conclusion without explaining his reasoning process. The reasons given in this respect are not, in my judgment, Meek-compliant.
19. It follows at this stage that the Chairman has fallen into error in arriving at his primary conclusion; he has misunderstood a relevant factor to be taken into account and failed to give proper reasons for his conclusion.
20. However, the Chairman went on to consider the merits. Ms Stone submits primarily that he was not permitted to do so. I cannot accept that submission; as Mr Hay points out, by reference to Hutchison paragraph 10, per Phillips J, the Chairman may want to form a fairly rough idea as to whether the claim is a strong or a weak one. However, I accept Ms Stone's point that this matter was raised on the day of the hearing by the Chairman, giving the Claimant little opportunity to meet it by evidence; secondly, it is unclear what weight the Chairman attached to his view that the case, in relation the events of 2003, had little prospect of success in circumstances where the complaint related to the dismissal in February 2005, the earlier matters being by way of background. Overall, I am perplexed as to precisely what the Chairman found in relation to the merits of the actual claim and how that fed into his overall exercise of discretion.

Conclusion

21. In these circumstances I am persuaded that this appeal succeeds. The Chairman's Judgment, refusing an extension of time, is set aside.
22. The question then is what course I should take. I have decided that this is not a case in which I can properly exercise my discretion on the findings of the Chairman. Nor am I satisfied that the Chairman's conclusion is either plainly and unarguably right or wrong. Accordingly I shall remit the limitation issue to a different Chairman for rehearing.