United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B CARR (Of Counsel) Instructed by: Messrs Eversheds LLP Solicitors 115 Colmore Row Birmingham B3 3AL
For the Respondent	MR J BERTRAM (Of Counsel) Instructed by: Messrs Flint Bishop & Barnett Solicitors St Michael's Court St Michael's Lane Derby DE1 3HQ


 


SUMMARY

Reasonable practicability

Unfair Dismissal claim lodged out-of-time. Claimant relied on Trade Union Representative who wrongly advised her that time ran from expiry of process of appealing against the dismissal under Employer's procedure. Employment Tribunal Chair extended time on basis that "innocent" claimant could not have reasonably practicably filed claim in time.

Appeal allowed. Classic Riley v Tesco case. Claimant fixed with actions of her negligent adviser.


 


MR RECORDER LUBA QC

1. This is an employer's Appeal from a judgment of a Tribunal Chairman (sitting alone) that a claim for unfair dismissal and damages for breach of contract brought by a former employee, although filed out-of-time, should be allowed to proceed to a determination on its merits.

The Facts

2. The Chairman found that the effective date of termination of employment of the employee was 13 April 2006. In order to be "in time" any complaint of unfair dismissal, or indeed a complaint for damages for breach of contract, should have been filed by 12 July 2006 i.e. within the statutory time limit of three months. The relevant application form or complaint was not received by the Tribunal Service until 31 July 2006 and therefore was out-of-time by a measure of some nineteen days or so.
3. The Chairman recorded the following further factual material which I have gathered up and set out in simple list form as follows:

(1) The employee had been represented by her union official, a Mr Greenwood, since November 2005 when the employer's disciplinary process against her had been put in hand;

(2) Mr Greenwood had continued to represent her interests after she had been dismissed;

(3) The employee had appealed against the dismissal under the employer's internal appeal procedure;

(4) She had been notified of the unsuccessful outcome of that appeal on 7 July 2006 which was a Friday;

(5) She was not able to secure an appointment with the Union's solicitor until 20 July 2006;

(6) The application to the Employment Tribunal was despatched about a week later;

(7) Mr Greenwood had throughout been of the view that the three months time limit for an unfair dismissal claim ran from the date of conclusion of the internal appeal process;

(8) The employee had throughout relied on Mr Greenwood's advice;

(9) The employee bore no personal fault for the lateness of the submission of the application to the Tribunal.

Relevant Law

4. The Chairman properly directed himself to Section 111 of the Employment Rights Act 1996 and in particular to sub-section (2). That provides:

"(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 3 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 3 months".

5. The Chairman having set out that statutory provision in his judgment immediately thereafter distilled from it, correctly, the two stages for application of the Section 111(2) rubric. The two stages are: firstly, to determine whether it was reasonably practicable for the complaint to have been presented within three months and; secondly, if not, whether the complaint was then presented within such further period as could be considered a reasonable period.

The Decision under Appeal

6. The Chairman directed himself that Mr Greenwood, a trade union official, was in no different position as a matter of law, vis-a-vis the employee, than that in which a solicitor adviser would have been. He found that Mr Greenwood frankly acknowledged that he had made a mistake and had given the employee the incorrect advice. Further, he found that the employee had relied on that advice. That incorrect advice was not corrected until after the time limit had expired. In those circumstances the Chairman was satisfied that it had not been reasonably practicable for the employee to have presented her complaint within the initial time limit.
7. As to the second stage of the test, that is to say whether the complaint albeit out-of-time had been presented within a further reasonable period, the Chairman concluded that the employee had personally pursued the matter "vigorously", that she was hoping for the right result from the internal appeal, and that when she received a different result she "immediately took action" and within a reasonable time lodged her application to the Tribunal. On that basis, the Chairman concluded both that it had not been reasonably practicable to present the complaint in time and that the complaint had thereafter been presented within a reasonable period. That led him to direct that the claim go forward for determination on its merits as the terms of Section 111(2) were satisfied.

The Appeal

8. The employer's Notice of Appeal raises four grounds challenging the decision of the learned Chairman. They are in summary form as follows. First, that the Chairman wrongly took into account and derived guidance from a decision of the Employment Appeal Tribunal in the Verdi case. Secondly, that the Chairman wrongly directed himself that reliance on a skilled adviser who thereafter acted negligently necessarily led to an employee being able to satisfy the reasonable practicability test. Third, that the Chairman had failed to apply the correct statutory test. Fourth, he had failed to give adequate reasons.
9. The employee opposes the appeal and seeks to uphold the Chairman for the reasons he gave but, alternatively and additionally, on the basis that his decision could have been founded on an application of the correct test having regard, in particular, to the twin factors of the employee's ill-health at the relevant time and the fact that Mr Greenwood was a lay trade union official rather than an employed or skilled adviser.
10. In determining this appeal, I have derived considerable assistance from the cogent oral submissions made to me by Counsel and the very helpful skeleton arguments furnished in advance.

Discussion and Conclusion

11. I shall deal with the grounds as set out in the Notice of Appeal, and as argued, in turn.

Ground 1: Reliance on Verdi.

12. The decision of this Employment Appeal Tribunal in Verdi v Commissioner of Police of the Metropolis [2007] IRLR 24 was not concerned at all with the application of the time limit for unfair dismissal claims set out in Section 111 of the Employment Rights Act. Rather it was concerned with the differently phrased time limit set out in Section 68 of the Race Relations Act 1976. That provides at sub-section (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."

That formulation or rubric is common to many of the statutory time limits relating to claims of discrimination and the like. The Verdi case, being concerned with a different statutory formulation of the time limit nevertheless came to be put before the Employment Tribunal Chairman. However, no criticism is to be made of Mr Bertram who was acting for the employee before the Chairman and who furnished this authority. That is because the employee's claim, of which it was believed the Chairman would be wholly seized, also contained a discrimination element. The decision of Elias J in the Verdi case had been furnished to the Tribunal Chairman in relation to the discrimination aspect rather than in relation to the time limit for the unfair dismissal claim. In the Verdi case Elias J had been concerned, in part, to deal with the circumstance in which an employee who may bring a discrimination claim relies on the assistance of a solicitor or other skilled adviser. Elias J in the course of his judgment said this at paragraph 35:

"It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419 [2001] All ER (D) 370 (Mar) paragraph 27. For that reason it is not legitimate for a Court to refuse to extend time merely on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor."

Later in that judgment, at paragraph 40, he says:

"When assessing whether time should be extended the fault of the claimant is plainly relevant, as it is under s.33 [of the Limitation Act]. So if the failings are those of the solicitor and not the claimant that is highly material. But the errors of his solicitors should not be visited on his head, as in the Steeds case and the authorities to which it refers, make abundantly clear."

From those dicta, therefore, it would seem that when applying some statutory time limits an 'innocent' employee is not to be visited with the consequences of the errors made by his negligent adviser. There is no doubt that the Tribunal Chairman considered the Verdi decision. Mr Carr for the Appellant employer, in the course of his submissions, reminded me in particular of two passages in the judgment of the learned Chairman. At paragraph 18 the Chairman says:

"I have considered all the judicial guidance referred to me. In particular (my emphasis) the judgment of Mr Justice Elias [President of the EAT] in the case of Verdi …"

Furthermore, at paragraph 25 the Chairman says:

"First of all I accepted that Mr Justice Elias' words in the case of Verdi related to the test in discrimination cases …. Consequently the test there to be applied was a just and equitable one. There was also an issue whether the guidance set out by Mr Justice Elias could apply to the reasonable practicable test. There was a further distinguishing feature in the case of Verdi namely that the adviser who got it wrong was a solicitor not a union official as Mr Greenwood was. I came to the view that the claimant was in no way at fault for the lateness of the application."

Mr Carr urges that those passages suggest the Chairman wrongly treated Verdi as an authority that would assist on the wholly different question of the reasonable practicability test in Section 111. Pointing to later passages in the Chairman's judgment, Mr Carr submits that the Chairman treated Verdi as authority for the proposition that the negligent failure of an adviser could not visit adverse consequences on an applicant for an extension of time. For his part Mr Bertram, for the Respondent employee, suggested that it was "a pity" that the Chairman had "seized so firmly" on the Verdi decision. He acknowledged that Verdi was a case concerned with a quite different statutory test. Mr Bertram conceded that the reliance in Verdi had been "inappropriate" but, as will become apparent later in this judgment, he nevertheless urged that I uphold the result even if one were to apply the right authorities and the right approach.

13. In my judgment the learned Chairman was plainly wrong to place any reliance on Verdi in the context of applying Section 111 of the Employment Rights Act. Verdi gives guidance on the application of a quite different test. I was inclined to think that Mr Carr was perhaps being over critical and that the Chairman could, in paragraph 25 which I have extracted above, be taken to have in fact been distinguishing the Verdi case. He refers both to the fact that it was concerned with a different test and that there was a "further distinguishing feature". But looking at the Chairman's judgment in full, it seems to me that Mr Carr is right to submit that he was in fact seeking to derive - and did derive - what he took to be assistance from the approach of Elias J in the Verdi case. He was wrong to do so. This first ground of appeal is therefore made out. But it does not avail the Appellant unless the Appellant can show that a different result flows if the correct approach be adopted.

Ground 2: The correct approach

14. Mr Carr submits that the only proper reading of the Chairman's judgment is that he was concluding that where a lay applicant has failed, by the negligence of her adviser, to submit a claim in time, that ought not to result in the disbarment of a late claim but rather in a finding that it was not reasonably practicable to lodge a claim in time. He took me, in particular, to paragraph 32 of the learned Chairman's judgment where it is said as follows:

"That negligent advice was not rectified until after the primary time limit had expired. In these circumstances it was not feasible or reasonably practicable for her, the claimant, to put in her claim."

Mr Carr submits that this conclusion, and indeed this approach, is wholly contrary to a well-established line of authority in relation to the unfair dismissal time limit which runs from the decision of the Court of Appeal in Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 and which has been consistently applied since. Mr Carr took me to passages in the judgments of the majority in Dedman and in particular to the following passage from the judgment of Lord Denning M. R. at page 61 Letter E.

"But what is the position if he goes to skilled advisers and they make a mistake? The English court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It was held that it was "practicable" for it to have been posted in time. He was not entitled to the benefit of the escape clause: see Hammond v Haigh Castle & Co Ltd [1973] I.C.R. 148. I think that was right. If a man engages skilled advisers to act for him - and they mistake the time limit and present it too late - he is out. His remedy is against them."

To like effect, Scarman LJ says at page 64 Letter G:

"When one turns from the general to the particular, Mr Dedman's case is hopeless. He knew he had rights and he was being advised by solicitors well before the expiry of the time limit. There was no reason why he could not present his complaint in time. It was practicable to do so; the fact, if it be so, that his solicitors overlooked the time limit did not make it impracticable, though it may give him a right to damages against them."

Dedman was followed and applied by the Court of Appeal in the later case of Wall's Meat Co Ltd v Khan [1979] ICR 52. In that case Lord Denning reiterated the statement he had formulated in the Dedman case and at paragraph D on page 56 says as follows:

"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 have been 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 they must take the consequences."

The particular significance of the Wall's Meat Co Ltd case is that it dealt with the time limit as phrased in the Trade Union and Labour Relations Act 1974 which was a time limit expressed in precisely the same wording as that now to be found in the Employment Rights Act. The authorities of Dedman and Wall's Meat were considered again in the 1970s in Riley v Tesco Stores Ltd [1980] ICR 323. From those three authorities, taken together, one must deduce the proposition that in this class of case (that is to say a class of case in which the test is whether a complaint could reasonably practicably have been presented in time) it is no answer for a "innocent" employee to rely upon the negligent advice of those to whom he has entrusted the task of assisting him in relation to these employment matters.

15. However, it is right to note - as both Counsel recognise - that these authorities were pronounced some thirty years ago. Mr Carr very properly took me to the more recent decision of the Court of Appeal in London International College Ltd v Sen [1993] IRLR 35. Certain passages in the judgment of the Master of the Rolls in that case suggest some lack of comfort with the wording of the earlier authorities. However, nothing in the judgment of the Master of the Rolls goes so far as to undermine their impact albeit that they are "qualified" by the Master of the Rolls in the sense that he recognises that there will be circumstances where, even after an adviser has been instructed, it may not be reasonably practicable for a complaint to be presented in time. In the course of argument before me examples were offered. They included cases where a sole adviser is taken ill for the requisite period. Or where a sole practitioner solicitor's office is burned down. One can easily think of other illustrations.
16. Mr Bertram's response to this line of authority is that even if the Chairman was directing himself wrongly by applying the Verdi test, nevertheless the Chairman could have reached the same result applying the Section 111 test but adapting the decisions of Dedman, Wall's and Riley to construct a more modern or flexible approach to time limits. He urged upon me for a possibility that I might depart from the effect of the earlier decisions and adopt the spirit of the approach taken perhaps by both Elias J in the Verdi case and by the Court of Appeal in the decision in Steeds to which Elias J refers. Pursuing that line of argument would lead to the conclusion that the negligence of an adviser would not debar the claim for an extension of time even where the test is one of reasonable practicability. Despite those attractive submissions, I am fully satisfied that the Chairman was bound, as I am bound, by authority to hold that the employee could not rely on the negligent advice given to her alone as making it not reasonably practicable to bring her complaint in time. Dedman, Wall's and Riley are all binding upon me as they were binding upon the Chairman. If it is time for a different view of the correct approach to the Section 111 test it is for the Court of Appeal, or perhaps even the House of Lords, to say so.
17. I do not overlook, in dealing with the second ground, the Respondent's Notice and Mr Bertram's reliance upon it. In that Notice he seeks to uphold the Chairman's actual decision by reliance on a permutation of the Claimant's illness and the comparative lack of skill of the Trade Union adviser as together amounting to such "exceptional circumstances" as to justify the Tribunal Chairman's conclusion in this case. The point as to lack of skill of the Trade Union adviser is wholly undermined by the Tribunal Chairman's finding of fact at paragraph 27 in these terms:

"I also decided that this union official who advised Mrs Kidd on the law was in the same position as a solicitor in terms of the advice given."

It is right to note that the Chairman had earlier considered, in his recitation of the factual background, the particular level of expertise of Mr Greenwood. Further, Mr Carr reminded me that, in his own submissions to the Tribunal below, Mr Bertram had said that the "inaccurate advice of Greenwood is akin of the negligent advice of a solicitor." In short, it is not open to the Respondent employee to rely in this appeal upon the asserted lack of expertise of the adviser whom she in fact engaged.

18. The point as to the medical dimension is developed by reference to two aspects of the health of the former employee. The first relates to an injury she sustained on holiday shortly after her dismissal and the other to a situation of stress which she had been experiencing for the two years 2005 and 2006. However, the medical material does not suggest, in any way, that she was disabled from communicating with her adviser and in fact it is to be noted that during the relevant period she was actively pursuing the employer's internal appeal procedure.
19. In short, this second ground of appeal succeeds. This appeal must be allowed. In those circumstances I can deal with grounds 3 and 4 together and briefly.

Grounds 3 and 4; Discretion and Reasons

20. Mr Carr criticises in particular paragraph 35 of the Tribunal Chairman's judgment. There he says as follows:

"Apply the discretion that I have and accepting that it is a limited discretion I find that Mrs Kidd must succeed in her application under Section 111(2)(b) and consequently this matter must go on to a full hearing."

Mr Carr's criticism of that passage is to be reflected in the two alternate grounds of appeal, grounds 3 and ground 4. Ground 3 suggests that paragraph 35 demonstrates that the Tribunal Chairman was wrongly directing himself that Section 111 provided an overarching or general discretion which he was exercising on consideration of the matter before him. Alternatively, and this is ground 4 of the Grounds of Appeal, if the Tribunal Chairman was in fact saying that the limit of his discretion was to the question of "reasonable period" then his reasoning is not sufficiently articulated to allow that to be readily deduced.

21. If these grounds had been taken alone, I would have considered them of little substance but in context they merely underscore the extent to which the Chair has, with respect, failed to address himself properly to the task he had in hand. It is simply not clear whether he was treating Section 111 as providing him with a discretion "at large" and some support is given, by parts of his judgment, for the proposition that he was so directing himself. This underscores the failing I have already identified in relation to ground 2.
22. In conclusion therefore, this appeal succeeds. My Order will be:

(1) Appeal allowed.

(2) Decision of Chairman set aside.

(3) The complaints of unfair dismissal and breach of contract were out of time.

Mr Bertram applies for leave to appeal to the Court of Appeal. In particular he wishes to pursue the opportunity, ventilated before me in argument, to seek to strike-out on a new path in relation to Section 111 of the Employment Rights Act and to leave behind what may be described as the "older principles" to be derived from the decisions in Dedman and Wall's and Riley. I have some sympathy for that application for leave to appeal, not least having regard to terms of the criticism of the earlier judgments given by the Master of the Rolls in the Sen case. However, it is in my judgment right that I should refuse leave to appeal and leave it to the Court of Appeal, should it receive an application from Mr Bertram for permission to appeal, to determine for itself whether it wishes now to consider striking out on that new course.