United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SHAW (The Appellant in Person)
For the Respondent	MR ANTONY SENDALL (of Counsel) Instructed by: Messrs Halliwells LLP Solicitors St James Court 30 Brown Street Manchester M2 2JF


 


SUMMARY

Practice and Procedure: Application/Claim

Where the Employment Tribunal erroneously failed to accept an ET1 and a second ET1 was, as a consequence, said to be out of time, the Employment Appeal Tribunal overturned that latter decision by agreeing to review it and to order that the second ET1 be accepted and the claim proceed.


 


THE HONOURABLE MR JUSTICE WILKIE

1. This is Mr Shaw's appeal in a case which has to date followed a labyrinthine process with which Mr. Shaw, legally unqualified and unrepresented, has had to cope with complex procedural requirements and, as I find, erroneous statements by those in charge of the process. Mr Sendall of Counsel appearing for the Respondent in this appeal has helpfully and fairly endeavoured, to a large extent successfully, to clarify the position and I am indebted to him for his assistance.
2. This is the full hearing of an appeal number 0241 of 2007 against a decision of a tribunal chairman, Mr Hardwick, refusing to review a decision which he had made on 6 September 2006, that decision being a decision dismissing Mr Shaw's claim of constructive unfair dismissal because it was presented outside the time limit prescribed by section 111 of the Employment Rights Act 1996 (ERA).
3. Mr Shaw launched his appeal under an appeal number 1677 of 2006 on 13 November 2006. His grounds, at least in one sense, identified simply and succinctly what had always been his point in the case, namely that section 111 of the ERA states that:

111 "Complaints to an employment tribunal

(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(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.

And then a little further on he says the time limit has not been breached.

4. The notice of appeal identified as the decisions from which the appeal was being made as comprising both the pre-hearing review of 6 September already alluded to and the review of that decision said to have been 6 October 2006, but in fact contained in a letter dated 3 October 2006. The EAT treated this single notice of appeal as being two appeals against, respectively, the dismissal of his claim on 6 September; and the refusal of a review of that decision on 3 October 2006, and allocated separate EAT numbers to each of those appeals. The appeal number 1677, the original number, continued to be the number associated with his appeal against the decision of 6 September. By virtue of the fact that the appeal was not lodged until 13 November, that appeal was out of time and consideration was given to an application by Mr Shaw by letter dated 6 February 2007 for an extension of time and, by a decision of the registrar which has not been challenged dated 5 April 2007, she refused the application for an extension of time. After that the appeal fell, as being launched out of time. The appeal in respect of the review decision was not out of time and has proceeded to this full hearing.
5. Mr Hardwick set out, in the letter evidencing the decision, his reasons for refusing the review and in so doing he referred, correctly in my judgement, to the full history of these proceedings. Unfortunately they are a little convoluted. Mr Shaw commenced proceedings in the Employment Tribunal by an ET1 which, on the face of it, was stamped as having been received by the Employment Tribunal on 4 April 2006 and was given a pre-acceptance number of 167/06. In that application he claimed unfair constructive dismissal. He identified his dates of employment as being between 30 March 1998 and 5 January 2006. His complaint began with the sentences:

"I had been suffering from stress which was caused by work. I have now fully exhausted the company's grievance process with no conclusion."

He then sets out his case both in respect of the dates of the various stages, from his point of view, in the grievance process and the unsatisfactory, from his point of view, response of the Respondents. In part three of that ET1 headed 'action before a claim', he answered a number of the tick box questions and, in response to question 3.5 "Have you put you complaint in writing to the Respondent?" he responded "yes". When asked what date he had put it to them in writing he said "the 25^th of July 2005". To question 3.6, "did you allow at least 28 days between the date you put your claim in writing to the Respondent the date you sent us this claim?" he ticked the answer "yes". This was manifestly accurate if the complaint was received by the Tribunal on 4 April. It is also worth noting that in his substantive statement attached to the complaint he stated that he had raised his grievance on 25 July 2005 and it was first heard on the 31 October 2005, a period of some three months later. This delay was said to be a ground for his complaint.

6. On the face of it, therefore, this ET1 seems both to have been submitted in time and to have contained the relevant necessary information about action before making a claim in order to have enabled it to have been accepted and processed in due course. Unfortunately, the Employment Tribunal, in a letter of baffling opaqueness, with which Mr Sendall has frankly struggled to make very much sense, wrote him a letter citing the pre-acceptance reference number 167/06. The first odd thing about this letter is that is was dated 21 March 2006, that is to say some 13 days before the Tribunal had actually received the ET1 and allocated that pre-acceptance number. It may well be that that date was simply a typographical error but the problems with the letter by no means end there. The letter reads as follows:

"Your claim form has been referred to a Chairman, Mrs J Hill, who has decided that your claim cannot be accepted for the following reason: Your complaint of constructive unfair dismissal is one to which the statutory grievance procedure applies. Such a complaint cannot be presented to an Employment Tribunal unless the Claimant has first sent a written statement of grievance to the Respondent at least 28 days before presenting their claim. Although you have indicated that your claim is about something other than dismissal, you have not stated:

- whether or not you sent a written statement of grievance concerning this matter to the Respondent;

I am therefore returning your form to you. If you wish to continue with your claim you must provide this information and return the form to the tribunal office at the address above quoting the pre-acceptance number. Please note that the original time limit for commencing these proceedings has been extended by 3 months to allow you to carry out these necessary steps. However, you should submit your written statement of grievance to your employer as soon as possible and in any event not later than one month after that original time limit expired. If you fail to do so the tribunal will not be able to consider your claim….

…You have a right to apply for a review of this decision. If you wish to do so you must apply in writing within 14 days of the date of this letter quoting the pre-acceptance number. You must explain why you believe the decision not to accept your claim is wrong. The only grounds on which the decision can be changed are if a chairman is satisfied that:

1) it was wrongly made as a result of an administration error, or

2) the interests of justice require it.

If you believe that the decision not to accept your claim is wrong in law, you may also appeal to the Employment Appeal Tribunal provided you do so in writing within 42 days of the date of this letter."

7. The reason that this letter is bafflingly opaque is not because of its contents, which are fairly straightforward and describe the new arrangements requiring grievances to be dealt with in advance of proceedings being commenced, but it contains what seems to be an obvious error, which is that it is written on the basis that the ET1 had not disclosed that he had first sent a written statement of grievance, whereas the ET1 which was accepted by the Tribunal as received on 4 April manifestly did. Unsurprisingly, Mr Shaw on receiving this letter rang the Employment Tribunal to enquire what he should now do. They, according to Mr Shaw whose account I accept, indicated that all he needed to do was to submit a second ET1 supplying the information which it was being said had not been supplied in his original one. He did not, in the light of that and no doubt trusting the administration to know what they were doing, consider that he could or should seek a review of the decision which, on mature reflection, was manifestly wrong, or to seek to appeal what on the face of it seems to have been a manifest error of law. What he did was to submit a second ET1 within the extended period of time from 5 January which would have expired on 4 July. He did so by an ET1 dated 28 June 2006. In this ET1, which is very similar to the original one, he identified his dates of employment as before. However, in connection with 'action before a claim', whereas previously he had identified putting his complaints in writing to the Respondent as being 25 July 2005, he indicated that the date when had put his complaint in writing was 5 January 2006. His statement in relation to his claim for unfair constructive dismissal refers to the earlier grievance procedure but he also stated that in his resignation letter he had stated his reasons for leaving and in effect sought to assert that they had failed to act in relation to his earlier grievance. This ET1 has proceeded as being the effective ET1 in the proceedings and on 28 June 2006 the Respondent responded to it. They didn't take issue with the dates of his employment; they didn't take issue with the fact that there had been a grievance procedure running during 2005. They referred to grievances having first been raised on 10 October 2005 and that procedure having run its course by 21 December 2005. They then took issue with the fact that the letter of 5 January 2006 was a resignation in circumstances giving rise to a constructive dismissal but in the final paragraph of the ET3 it says:

"The Claimant resigned on 5 January 2006; it is the Respondent's belief that the Claimaint's claim is out of time."

8. They no doubt had in mind a three month relevant time limit expiring on 4 April 2006, no doubt bearing in mind that, having regard to the full grievance procedure that had predated the letter of resignation, there would be no question of there being any extension by three months to accommodate a further round of grievance being raised and dealt with. It was in relation to that assertion that the second claim was out of time that a different Chairman, Mr Hardwick, conducted a hearing on 1 September 2006 and at the end of that came to a decision that he must dismiss Mr Shaw's application because it was presented outside the time limit prescribed by section 111. No full reasons were attached to that decision. Mr Shaw by a letter of 21 November sought written reasons but, perfectly correctly, Mr Hardwick refused to grant him that application because that was out of time and in a letter of 29 November 2006 Mr Shaw was informed that there would be no legal reasons. However, Mr Shaw, by this stage more familiar with the Tribunal procedures, on 18 September 2006 wrote a letter seeking a review of the decision of 6 September and once again succinctly set out his case as follows:

"My ET1 was submitted on 4 April 2006."

His claim was referred to Mrs J Hill who did not accept it. The Claimant had given as his reasons:

"I had not stated whether or not I sent a written statement of grievance concerning the matter to the Respondent. The form was returned to me, I was given an extension of three months in which I was instructed that if I wished to continue with my claim I must provide the information requested. This was confirmed in a telephone conversation with the tribunal office. I followed these instructions and submitted another ET1 in which I quoted the pre-acceptance reference PAREA167/06. Therefore the Respondent was aware of the original claim and that it was within the time limit and that an extension had been granted. I believe my claim was submitted within the three month time limit and any other action taken was only following the instructions issued by the Employment Tribunal. Therefore I believe that my claim is in fact within the jurisdiction of the tribunal."

9. Although he didn't formally identify the grounds on which he is seeking a review, in my judgement it is manifest that he was saying to the tribunal chairman that he wanted a review on one or other of two grounds namely that the decision of 6 September was wrongly made as a result of an administrative error, as compounded by subsequent steps that he was advised to take and/or that the interests of justice required such a review. What is clear enough is that in his application for a review he is inviting Mr Hardwick to re-visit the earlier history of the matter and the question whether the original claim was properly submitted with all its relevant information in time on 4 April. Mr Hardwick in refusing the review said as follows:

"Your original claim submitted on 4 April 2006 was rejected under the provisions of section 32(2) Employment Act 2002 for failure to comply with the statutory grievance procedures under the Act. In relation to your claim submitted on 4 June 2006 no indication was given as to the submission of a further grievance but you stated that your resignation letter of 5 January 2006 constituted the grievance. You submitted your original grievance on 10 October 2005 and appealed against the determination on 24 November 2005. You were notified on 21 December 2005 that your appeal against your grievance had been unsuccessful. It was held at the hearing on 1 September 2006 that your resignation letter of 5 January 2006 could not constitute a step 1 grievance under the 2002 Act in that no new issues were raised, merely a statement of your dissatisfaction with the outcome of the grievance process. Accordingly, a valid claim had to be submitted no later than 4 April 2006 and the three month extension pursuant to regulation 15 Employment Act 2002 dispute regulations 2004 is not applicable to your claim submitted on 4 June 2006."

10. Stripping away the references to the various statutory regimes, what Mr Hardwick seems to be saying is this: First, he is acting on the basis that the decision of Mrs Hill was correct insofar as it refused to accept as valid the ET1 which was received on 4 April 2006. However, he appears to decide, as he had decided on 1 September 2006, that the further application made and received on 4 June was out of time because the three month extension did not apply. The three month extension did not apply because there had been a grievance procedure fully invoked in the period leading up to 5 January 2006 and the letter of 5 January 2006, being said in these proceedings to have been the grievance notification, could not constitute a fresh grievance because it did not raise any different matters. He therefore decided to refuse the review on the basis that he was unpersuaded to change his mind in relation to his decision on 6 September, notwithstanding the fact that the very basis of that decision was in contradiction to the original decision of Mrs Hill which had proceeded, apparently, on the basis that no such grievance had ever properly been invoked and certainly not been evidenced by the contents of the ET1. Therefore Mr Hardwick in what might be colloquially described as 'Catch-22', had explained to Mr Shaw that his present proceedings were out of time because the original three month time limit applied but that his original ET1 which was put in within that original time limit could not avail him, notwithstanding the fact that there was actually nothing wrong with that original ET1. It seems to me that such convoluted reasoning contains such a misunderstanding of the facts, or a misappreciation of the statutory regime, that it is wrong in law. Anyone looking at the various applications that have been made, and asking themselves whether a decision to refuse jurisdiction should be reviewed on the grounds that it had been wrongly made as a result of an administrative error, or that the interests of justice required such a review, could not but have concluded that each of these conditions was satisfied. Mr Sendall rightly makes the point that Mr Shaw could have appealed the decision of 6 September but failed to do so in time and that therefore this should not constitute simply the hearing out of time of an appeal on a decision taken on 6 September. That certainly is right. But Mr Shaw does have a valid appeal against the refusal by Mr Hardwick of a review and if, as in my judgement is the case, on the face of the letter giving the reasons for refusing the review there is a manifest error of law, then Mr Shaw is entitled to have that decision overturned even though the impact of it may be to remove the decision of 6 September. The error which Mr Hardwick made, in my judgement, was in connection with the original claim submitted on 4 April 2006. Mr Sendall helpfully has indicated that he may also have been wrong in his analysis of the second part of his reasoning, namely that the mere fact that there had been a previous grievance procedure pursued to its end did not necessarily preclude an extension of the further three months in order to enable yet a further statement of grievance to be launched. Mr Sendall says that that in effect was what was decided by the EAT in the case of HM Prison Service v Barua [2007] IRLR 4. It may be that, as the law has developed, Mr Hardwick was wrong in law in his analysis of that part of the case. I must remind myself that I am dealing with an appeal of an exercise of discretion and Mr Hardwick appears to have got the law right, as it appeared to have developed at that time and the fact that subsequently it has changed so as to invalidate that part of his reason would not, in my judgement necessarily be a reason for returning that decision. The real problem with Mr Hardwick's reasoning, as with the Employment Tribunal's dealing with this whole application, is that it is plain that Mr Shaw's original ET1, which was submitted in time, did comply with the statutory requirements and should have been accepted. Of course the time has long gone for the decision not to accept it to have been the subject of a review or the subject of an appeal, but in my judgement, if it were necessary to do so, extensions of time should be given in order for those matters properly to be put on foot because the letter from the Employment Tribunal was thoroughly misleading, when coupled with advice which Mr Shaw received and which he in good faith followed. However, it seems to me that that is not necessary. Mr Hardwick should have granted the review. I will order that Mr Shaw's application, the second ET1, should have been accepted as being in time. It may be that common sense would dictate that if Mr Shaw applies to amend that ET1 in order to change the answer to question 3.5 to reflect the reality and perhaps to add the substance of what he said in his original ET1 then that is an application which, if he makes it, I can perhaps deal with today. There is, of course, absolutely no prejudice to the Respondent in the sense that they have known all along what the case was against them and they have responded to it fully. That is a matter which will be determined as a matter of substance by the ET in due course. There is, in my judgement, no prejudice in their not having to confront a claim which, it seems clear, was properly made in time, the proper information being given. It is only to be regretted that Mr Shaw has been put through a rather labyrinthine process in order to have his claim considered as it should have been from the off.
11. Mr Shaw having upheld your appeal, the order that I'm going to make is that Mr Hardwick's decision to review his decision of 6 September should be overturned. I shall order that your claim, which was filed on 4 June, should be accepted as a claim made in time to be dealt with in due course by the Tribunal.