United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr. G Clarke (of Counsel) Instructed by: Northumberland County Council Legal Services County Hall Morpeth Northumberland NE61 2EF
For the Respondent	Mr. M HAY (of Counsel) Instructed by: Messrs Beecham Peacock Solicitors 7 Collingwood Street, Newcastle Upon Tyne NE 1JE


 


SUMMARY

Unfair Dismissal-delay after the end of the prescribed 3 month period – whether the Employment Tribunal considered the correct issue

When deciding whether a claim for unfair dismissal could be brought outside the prescribed 3 month period, an Employment Tribunal has to consider "not merely what the employee knew but what knowledge the employee should have had had he or she acted reasonably in all the circumstances" per Lord Phillips M.R. in Marks and Spencer v Williams Ryan [2005] IRLR 562.

The Claimant was dismissed with effect from 4 November 2005. There were good reasons why she could not bring a claim for unfair dismissal within the three month period. She did not bring her claim until 12 October 2006 and the issue was whether her delay after the end of the 3 month period was reasonable. The Employment Tribunal held that it was.

Held:

Allowing the appeal, the Employment Tribunal had failed to consider what the Claimant knew and what knowledge she should have had had she acted reasonably. Thus the case had to be remitted.


 


THE HONOURABLE MR JUSTICE SILBER

1. The issues raised on this appeal are whether the Employment Tribunal sitting at Newcastle- upon-Tyne in its decision dated 8 February 2007 erred (a) by concluding that Ms Doris Thompson ("the Claimant ") was entitled to bring a claim for unfair dismissal against her employers Northumberland County Council ("the Respondent") notwithstanding that her claim was brought outside the three-month period prescribed for bringing such claims in section 111 of the Employment Rights Act 1996 ("the Act") and (b) by joining as the second Respondent the Governing Body of Choppington First School. I will describe the parties by the role which they had before the Employment Tribunal.
2. The facts found by the Employment Tribunal were (with the paragraph numbers in its reasons inserted in brackets) that:

(a) The Claimant was dismissed from part of her job as a classroom assistant on 4 November 2005

(b) The effect of the dismissal on the Claimant was that "it sent her into a deep depression" (paragraph 2.3);

(c ) "Within the first period of three months beginning with the effective date of termination [4 November 2005], the Claimant had not received advice from anybody apart from her doctor and her doctor had not told her that she should commence proceedings at the Employment Tribunal. She was in no fit state to have done so unaided" (paragraph 2.4);

(d) It was "satisfied that during Phase 1 i.e. the initial period [namely the three month period from the effective date of determination of 4 November 2005], the Claimant was incapacitated from presenting a claim" (paragraph 3.1);

(e) The three-month period for bringing a claim for unfair dismissal "would have expired on or about 19 February 2006 at the very latest" (paragraph 2.5);

(f) Between 22 March 2006 and 10 April 2006 the Respondent, who had contacted her union, spoke with a Mr Hodson who had worked for the County Council and "he decided the best thing to do would be to pursue the internal grievance procedure ... he told the Claimant that the matter could 'end up in Tribunal' but that would not have been said to her before the beginning of April" (paragraphs 2.5 and 2.6 with the underlining in the original);

(g) In respect of the period from the end of the three-month period which would have been ("on or about 19 February 2006 at the very latest") until the date of issue of proceedings on 12 October 2006 "the reason for the non-issuing of proceedings earlier than they were issued... is in my judgment that the Claimant was led into inactivity" (paragraph 2.8 with the underlining in the original);

(h) In respect of the period after the union were consulted between 22 March and 10 April 2006 and the commencement of proceedings, the reasoning of the Employment Tribunal was that:

"2.9. The grievance was made to the [Respondent] and after several meetings between the Claimant and Mr Hodson, a meeting with the [respondents] took place on 29 June 2006. Present at that meeting was a representative of the Education Department Mr Harbottle, a representative of the now second [appellants] the Governing Body of Choppington First School in the form of its acting Head Teacher, Mrs Scott, the Claimant and Mr Hodson. Mention was made that the case could go to Tribunal and the only person to reply was Mrs Scott who said that she thought the Claimant may say that. I then see a great deal of procrastination and delay. As the Claimant said school holidays, were used as a reason for delay. I do not lay all the blame for the delay at the door of the [respondents] or the Governors because Mr Hodson did not push. Discussions resulted in a compromise agreement, the terms of which I do not know, being tendered to the Claimant I believe from the evidence in the early part of September 2006. The Claimant decided, despite Mr Hodson's recommendation, to reject that compromise agreement on 25 September. She had by this time, I believe, rung a full-time official of the union, the GMB, who had told her, perhaps with not full knowledge of the facts, that she could not present her complaint to the Tribunal yet"(underlining in the original)."

3. The issue for the Employment Tribunal to consider was whether section 111(2) of the Act precluded consideration of the Claimant's complaint because it was not presented until 12 October 2006 even though the effective date of her dismissal was 4 November 2005. That section provides insofar as is material (with my underlining added) 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. It is not disputed that it was not "reasonably practicable" for the Claimant to have presented her claim within the initial three-month period and so the issue for the Employment Tribunal can be refined to being whether the delay by the Claimant from the end of the three-month period until 12 October 2006 when the claim was presented was "reasonable". The Employment Tribunal held that it was and it explained that:

"Bearing in mind [the Claimant's] continuing ill-health and the messages she was receiving loud and clear not only from her union but from the respondents, the Claimant in my judgment could not reasonably have been expected to issue before she did" (paragraph 4.5 with the underlining in the original)."

5. It was common ground in front of the Employment Tribunal that regulation 15 of the Dispute Resolution Regulations does not apply to this dispute and no submissions were made in respect of this regulation. I will start by considering the appeal against the order that "section 111(2) does not prevent this claim from proceeding".
6. Mr Gerard Clarke on behalf of the Respondent contends that the Employment Tribunal erred in considering it "reasonable" as stated in section 111(2) of the 1996 Act for the claim to have been presented between the end of the three month period after the effective date of dismissal on 4 November 2005 until the claim was brought on 12 October 2006.
7. Mr Clarke's submission was that there were clear errors of law in the approach of the Employment Tribunal. He points out that it was said that the Claimant had been somehow misled by the respondents but that these observations were neither clearly explained nor reasoned with the result that it was impossible to tell what the Respondent were supposed to have done and which somehow excused the lateness of the Claimant's presentation of her claim. Mr Clarke proceeds to say that even if the Respondent could be regarded as having conveyed a false impression to the Claimant about progress in respect of her grievance this does not address the question of whether the claim was presented within a reasonable time.
8. Mr Clarke stresses that the Employment Tribunal failed to identify any act or omission of the Respondent which had any impact on the Claimant's ability to launch her claim for unfair dismissal about which she must have known from at least March 2006 as appears from paragraph 2 (f) above.
9. Mr Clarke says where the trade union of an employee gives bad advice or fails to give good advice, this does not enable the employee to rely on it for justification for making a late claim. He points out it is accepted that where plainly wrong advice is given as was the case here, an employee is bound by the fault of her advisor: Croydon Health Authority v Jaufurally [1986] ICR 4.
10. Mr Clarke points out that there was an inexplicable delay from the time of the first consultation between the Claimant and Mr Hodson (which must have been the latest by 10 April 2006) and the meeting with the Respondent which took place on 29 June 2006. The respondents were not responsible for the delay. Indeed it is noteworthy that the Employment Tribunal only refers to "procrastination and delay" after the meeting on 29 June 2006. There can, Mr. Clarke says, be no question of any misrepresentation before then.
11. Mr Mohammed Hay, counsel for the Claimant, contends that the Employment Tribunal were quite entitled to reach the conclusion that it did and that it applied proper legal principles with the result that this appeal is one of fact and not of law. In his view, it follows that the appeal must therefore be dismissed as the Employment Appeal Tribunal does not have jurisdiction to deal with appeals relating to questions of fact.
12. The crucial issue on this appeal is how the Employment Tribunal should have construed and applied to the facts of this case the eight critical words in section 111 (2) (b) of the Act, namely "within such period as the tribunal considers reasonable". There has been much authority on the meaning of "reasonably practicable" but there is, as Mr. Hay has pointed out, a difference between the tests which have to be applied relating to construing the "reasonably practicable" test in section 111 (2) (b) of the Act and the test of what is "reasonable" in the same subsection. As May LJ explained in Palmer and Saunders v Southend-on- Sea Borough Council [1984] ICR 372 at page 374-375:

"We think that one can say that to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view too favourable to the employee".

13. Nevertheless although these two tests are different, they both embrace, although in different ways, the concept of reasonableness and both tests appear in the same sentence of the same sub-section although the "reasonably practicable" test has the additional requirement of practicability. In my opinion, matters of crucial importance in determining the reasonableness aspect (rather than the "practicable" aspect) of the test of "reasonably practicable" are likely to be of at least substantial importance in ascertaining if a Claimant has after the end of the three-month period launched proceedings "within such period as the tribunal considers reasonable". Indeed I am not aware of any reason why this should not be so.
14. Thus, an Employment Tribunal considering and applying these eight words should follow the approach on "reasonable practicability," on dealing with the reasonableness aspect (rather than the "practicable" aspect) of that definition. This exercise entails an investigation of: what the employee knew and what knowledge the employee should have had if he or she had acted reasonably in all the circumstances while ignoring the practicability aspect of that definition. In Marks & Spencer v Williams Ryan [2005] IRLR 562, (which was referred to by the Employment Tribunal in the present case), Lord Phillips M.R. in a judgment with which Latham and Keene LJJ agreed, explained at paragraph 21 (with my underlining added) that:

"…it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an Employment Tribunal , regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances".

15. It is noteworthy that the Master of the Rolls refers to the requirement that it is necessary for these matters to be considered. The decided cases require the Employment Tribunal considering whether it has been "reasonably practicable" for an employee to have brought proceeding within the three-month period to focus on and then to reach conclusions on the state of mind of the employees. Indeed, in London International College Limited v Sen [1993] IRLR 333, Sir Thomas Bingham M.R. explained (with my underlining added) in a judgment with which McCowan and Hirst LJJ agreed on the approach which should be adopted to whether it had been "reasonably practicable" to present a claim within the prescribed three month period when he said that:

"16…it would seem to me irrelevant whether or not the complainant had consulted a solicitor. That would seem to me to be a possible approach to the language of the section but it is one which previous authority has firmly rejected and such authority has concentrated on the state of mind of the prospective complainant and the extent to which he understood that position".

16. It is settled law that the Employment Tribunal must make a fact-sensitive decision relating to the particular employee and that there is no rule that a particular period is invariably or usually reasonable and another period is invariably or usually unreasonable (Marley (United Kingdom) Limited v Anderson [1994] ICR 295). Thus the task of the Employment Tribunal is to carry out a thorough examination of the facts focussing on the evidence before them in order to determine whether an employee for whom it was not reasonably practicable to issue his claim in the prescribed three-month period had thereafter issued his claim "within such period as the tribunal considers reasonable".
17. This would entail not only considering the matters to which I referred in paragraphs 14 and 15 above but also applying Lord Phillips' further comments in paragraph 21 of his judgment in the Marks & Spencer case (supra) where he said that:

"So far as that question [of not merely what the employee knew about the right to complain to the Employment Tribunal and the time limit for making such complaint and the knowledge which the employees should had had he or she acted reasonably in the circumstances] is concerned, there is a typically lucid passage in the judgment of Brandon LJ in Wall's Meat Co Ltd v Khan [1979] ICR 52 at page 61 which I would commend:

"With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be resented within the period concerned.

For this purpose, I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.

While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is `reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries"

18. As the oral submissions in this appeal did not focus on these important issues, after the hearing, I asked for written submissions from counsel about the significance to the present appeal of the Marks & Spencer and the Sen cases and also on the issues of:

"1. Whether the Employment Tribunal should have made any findings on the Claimant's knowledge at different times between her dismissal and the presentation of her claim to the Employment Tribunal on (a) the right to make a claim for unfair dismissal, (b) how to make it and (c) the time within which such claims should be brought;

2. Whether the Employment Tribunal in this case made any findings on each of the matters set out in paragraph 1 (a) ,( b) and (c) as I cannot find any such findings and if so what;

3. Whether any of the findings of the Employment Tribunal on each of the matters set out in paragraph 1 (a), (b) and (c) is defective and if so what should be done about it."

19. I duly received helpful written submissions in which Mr. Clarke accepted that "ideally the Tribunal should have found when the Claimant first became aware of the time limits for the presentation of a claim to the Employment Tribunal". Nevertheless he contends that as the Claimant had contact with advisers who are taken to know these time limits, the court's focus should have been on the effect of that contact rather than on the individual's knowledge. He proceeded to contend that that the decision of the Employment Tribunal is so plainly wrong that it should be reversed.
20. Mr. Hay submitted that the issue of what is reasonable is a question of fact and that the Employment Tribunal, in the words of his written skeleton argument:

"is obliged to consider objectively whether or not to consider its wide discretion of reasonableness of the relevant circumstances in which the delay occurred and it is then a matter of pure factual judgment whether the Employment Tribunal finds as a fact that the circumstances of the delay were reasonable or unreasonable".

21. I am unable to agree insofar as it is being suggested by either counsel that the Employment Tribunal should not have considered and applied to the facts of the present case the matters referred to by Sir Thomas Bingham M.R and Lord Phillips M.R. in the judgments from which I have quoted in paragraphs 14, 15 and 17 above.
22. Turning now to the decision of the Employment Tribunal under appeal, it is noteworthy that its findings were very limited in respect of the matters considered of great importance in the judgments in the Marks & Spencer case and the Sen case which I have quoted in paragraphs 14, 15 and 17 above. The findings in respect of what the Claimant knew about her right to complain to the Employment Tribunal and the time limit for making such a complaint or what she should have known had she acted reasonably are essentially that:

(a) Mr. Hodson told the Claimant in the period between 22 March and 10 April "the matter 'could end up in Tribunal'" (paragraph 2.6);

(b) At the meeting on 29 June 2006 "mention was made that the case could go to tribunal" (paragraph 2.9);

(c) Before 25 September 2006 "a full-time official of the union GMB ..had told the [Claimant] ,perhaps with not yet full knowledge of the facts, that she could not present her complaint to the Tribunal yet" (paragraph 2.9); and

(d) "Bearing in mind [the Claimant's] continuing ill-health and the messages she was receiving loud and clear not only from her union but from the respondents, the Claimant in my judgment could not reasonably have been expected to issue before she did" (paragraph 4.5 with the underlining in the original)

23. Unfortunately, the Employment Tribunal do not identify in any of these passages or elsewhere in their findings of fact the nature of the claim to the Employment Tribunal referred to in the passages set out at 22(a), (b) and (c). The claim could, for example, have been for wrongful dismissal or for arrears of wages apart from being for unfair dismissal. I will, however, assume that these comments in the Employment Tribunal's findings of fact related to a complaint of unfair dismissal. The Employment Tribunal did state "it would also be relevant for the Tribunal to consider whether at the time of dismissal or if not at what stage thereafter, [the Claimant] knew she had the right to complain on unfair dismissal" (paragraph 4.1). The Employment Tribunal did not state that such an inquiry was "necessary" as Lord Phillips had said was the correct approach in the Marks & Spencer case as I have explained in paragraph 14 above.
24. It is unfortunate that nowhere in its reasons does the Employment Tribunal refer to, let alone make findings of fact on , what Sir Thomas Bingham M.R described in Sen (supra) as "the state of mind of the prospective complainant and the extent to which he understood that position" or what Lord Phillips M.R described in the Marks & Spencer case (supra) as "not merely what the employee knew [about the right to complain to the Employment Tribunal about an unfair dismissal and of the time limit for making such a complaint], but what knowledge the employee should have had had he or she acted reasonably in all the circumstances".
25. In my view, this failure constitutes a serious and very significant omission and in reaching that conclusion, I have borne in mind that as Lord Phillips explained in the Marks & Spencer case (supra ) "section 111(2) should be given a liberal interpretation in favour of the employee" (paragraph 20). I have therefore proceeded to consider whether I can draw inferences from what the Employment Tribunal concluded on those matters by applying the approach advocated by Lord Denning M.R. (with whose judgment Lord Russell and Eveleigh LJ agreed) in Retarded Children's Aid Society v Day [1978] ICR 347 at page 443 G where he said about an issue, which was not specifically referred to by an Employment Tribunal in its reasons; that:

"So, reading between the lines, it seems to me that , although not stated explicitly in the reasons, the tribunal very probably did have all the considerations in mind which it is suggested they may not have had".

26. I concluded that I could not draw any inferences in the absence of any finding or evidence about what the Claimant knew and ought to have known about the matters referred to in the passages from the Sen and the Marks & Spencer judgments, which I have quoted in paragraphs 14, 15 and 17 above. Thus the next issue to be considered is how these defects in the decision of the Employment Tribunal should now be remedied.
27. Mr. Clarke contends that it is obvious that the appeal should be allowed and that I should so order. I cannot agree because as Buxton LJ explained (with my underlining added) in Wilson v Post Office [2000] IRLR 834 that the Employment Tribunal is:

"an industrial jury [and] it is only going to be in an extreme case, one that is very clear, that it is going to be possible for an appellate body properly to say that a jury would have inevitably reached the conclusion that the Employment Appeal Tribunal reached…"

28. This is not such an "extreme case" in which it is "very clear" that the Claimant will fail on this jurisdiction issue not least because the Employment Tribunal may have found that the Claimant was totally unaware of the right to bring a claim for unfair dismissal during the period from the end of the three-month period until the presentation of the claim because of what the Employment Tribunal described as the Claimant's "continuing ill-health" (paragraph 4.5 of the reasons) and/or because she had repeatedly been told that it was premature and she reasonably believed this to be so. In such circumstances an Employment Tribunal might be justified in concluding that the time that she waited after the end of the three month period before launching her claim was reasonable. There were no findings about the precise nature and effects of the Claimant's "continuing ill-health" and it could have been of a very serious effect or of very limited significance with the result that I do not know what weight to attach to it. I stress that the approach to be adopted to these limitation points is, as Lord Denning has explained in the Wall's Meat case (supra), "very much a matter for the [Employment] Tribunal".
29. For the avoidance of doubt, I should add that I also do not accept the submission that the Claimant would have been bound to succeed on the jurisdiction issue even if the Employment Tribunal had applied the correct principles because I have no idea what the Claimant's evidence would be in relation to the matters regarded as critical in the judgments of the Court of Appeal from which I have quoted in paragraphs 14, 15 and 17 above. In my view, the Claimant may or may not be able to justify her extremely long delay in starting the present claim and I cannot state what decision in Buxton LJ's words the Employment Tribunal "would have inevitably reached". Thus I must now decide how to resolve this matter in the light of the serious deficiencies in the reasons of the Employment Tribunal.
30. Mr. Hay contends that I should follow the approach set out in Burns v Consignia plc (No 2) [2004] IRLR 425 and approved by the Court of Appeal in Barke v SEETEC Business Technology [2005] IRLR 563 so that I should ask the Employment Tribunal to clarify, supplement or give its written reasons. This procedure is now codified in the Practice Direction (Employment Appeal Tribunal Procedure) 2004 paragraph 9.5.
31. The Consignia procedure has many attractions but it also has limitations, which were explained by the Court of Appeal in Barke (supra) in which Dyson LJ giving the judgment of the Court of Appeal explained that:

"46. there are dangers in asking the original tribunal for further reasons. It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision".

32. In my view, I have been driven to the conclusion that this case falls clearly into precisely this category as the Employment Tribunal simply did not consider and apply the fundamental principles applicable to this case as were explained in the judgments from which I have quoted in paragraphs14, 15 and 17 above. I am bound to conclude that the inadequacy of the Employment Tribunal's reasoning is so fundamental that there is the danger of the kind described by Dyson LJ. In any event, I strongly suspect that the Employment Tribunal did not consider the matters explained in the judgments of Sir Thomas Bingham and Lord Phillips from which I have quoted and so that is a further reason why the Consignia procedure would not be appropriate. Further, there must be a strong prospect that the Employment Tribunal would be unable in the light of the evidence adduced before it to give conclusions on the matters considered of importance in those judgments. Thus I do not propose to invoke the Consignia procedure in this case but will instead remit this case to the Employment Tribunal and the issue then arises as to whether it should go back to the same Chairman.
33. In the majority of cases, it would be appropriate and sensible for the matter to be remitted to the original decision-maker but in this case, I have concluded that three reasons individually and cumulatively drive me to the conclusion that this case should be remitted to a different Employment Tribunal. First, it is unlikely that the Chairman would have any memory of the evidence in this case and second, in any event it is unlikely that any costs or tribunal time would be saved by remitting the case to the same Chairman as the hearing when this case is remitted will be short irrespective of whether the same Chairman or another Chairman hears the application. Third, it is vital that this case dealing as it does with a preliminary issue concerning a dismissal, which occurred 21 months ago, should be heard as soon as possible and there might be a delay if the case has to be dealt with by the same Chairman as the one who dealt with the first hearing. If, which is not the case, I had been in any doubt about this conclusion, I would have reached it because of my deep concern about the failure to apply the correct principles at the first hearing means that there is much to be said in those circumstances for this case being remitted to be heard by a different Chairman.
34. Thus I have concluded that I must allow the appeal and remit this case to be heard by a different Chairman of the Employment Tribunal. In those circumstances, it is unnecessary to deal separately with the second ground of appeal relating to the joining of the Governing Body of Choppington First School as the second Respondent as this matter can and should also be considered by the Employment Tribunal when it is considering the jurisdiction issue which I have remitted.