United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WHITCOMBE (of Counsel) Instructed by: Messrs John Collins & Partners LLP Solicitors Copper Court Phoenix Way Enterprise Park Swansea SA7 9EH
For the Respondent	MR R BLEWITT (Representative)


 


SUMMARY

JURISDICTIONAL POINTS - Extension of time: reasonably practicable

Tribunal erred in its approach to determining whether it was reasonably practicable for the complaint to be presented in time.


 


THE HONOURABLE MR JUSTICE BEATSON

1. This is the appeal from the decision of an Employment Tribunal held at Carmarthen following a pre-hearing review as to whether the Tribunal had jurisdiction to consider the claim brought by Mr Hugh Evans who had been made redundant in his employment with Carmarthen & Pumsaint Farmers Ltd. It is common ground for the purposes of this appeal that the claim was brought on 5 February 2007, and that the effective date of the termination of Mr Evans' employment was 22 September 2006: accordingly the three month time limit expired on 21 December 2006. The decision of the Tribunal was promulgated on 1 June 2007, and the appeal by the employer was lodged on 13 July. The relevant time limit is contained in s111(2) of the Employment Rights Act 1996. This provides that

"(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, 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."

2. The Tribunal concluded that it did have jurisdiction to hear the complaint. For the purposes of this appeal I do not set out the short reasons given by the Tribunal. The relevant and material parts will become apparent in the course of my decision. Effectively the Tribunal found in paragraph 5 that the Claimant was unaware of the time limit imposed by s111, but it is to be inferred from paragraph 6 of the decision that he was aware that if he had not been treated fairly he had recourse to a remedy in the Tribunal.
3. The time after the date his employment terminated was in part spent in correspondence with his employer and with his union, or rather his former union because his membership was terminated when he ceased to be employed, about the criteria upon which he was selected for redundancy. Mr Lewis, who appeared at the Tribunal and appeared before me on the Claimant's behalf, submitted that it was important for the Claimant to get information about the criteria used by the employer because that was determinative of whether there was a case at all. That correspondence appears to have started some time in October. The first letter in the bundle before me is dated 23 October, but it refers to earlier letters and indeed a letter dated 28 September. The Tribunal has stated, in paragraph 10:

"In all the circumstances of this case, in particular the Claimant's manifest belief that he need not resort to a tribunal if the Respondent provided him with information he reasonably sought (and then only if it demonstrated unfairness in selection), his lack of legal representation, and his ignorance of time limits, amount to a situation where it was not so reasonably practicable and that the interests of justice and equity require that he should be allowed to continue. I also accept that he acted within a reasonable time after conclusion of the correspondence in commencing proceedings."

4. The employer has put forward three grounds of appeal. The first ground is that the Tribunal erred in law in finding that it was not reasonably practicable for the complaint to be presented in time primarily because of the employee's ignorance of time limits without any inquiry as to whether he could reasonably have expected to be aware of them and the circumstances of his ignorance. Alternatively, it is submitted that the decision of the Tribunal, in particular the paragraph I have set out, gives inadequate reasons for its conclusion on the issue of reasonable practicability, in that without reasons relating to the circumstances of and reasons for the Claimant's ignorance of time limits the employer is unable to understand why it lost on that element of the decision.
5. Secondly, it is submitted that the Tribunal fell into error in considering the period after the end of the three month period, because no findings were made in relation to the reasonableness of not bringing a claim thereafter and as to what further period would have been reasonable. It is submitted that the reference in paragraph 10 to the fact that the Claimant acted within a reasonable time after the conclusion of the correspondence was an irrelevant matter to the question whether the claim was lodged within a reasonable further period after the expiry of the statutory time limit. Mr Whitcombe accepted that the content and duration of the correspondence between the parties might have been of some relevance, but that it was an error of law to treat it as conclusive or to substitute that issue for the statutory test.
6. Thirdly, Mr Whitcombe submits that the reference in paragraph 10 of the Judgment to the interests of justice and equity suggests that the Tribunal confused notions properly belonging only to claims of unlawful discrimination with the test that was to be applied under s111(2) in an unfair dismissal claim.
7. I start from the proposition that the decisions of Tribunals, particularly in interlocutory matters and pre-hearing reviews, are not to be scrutinised in the way that a legislative provision is to be construed. I have in mind what was said by Donaldson LJ in Meek and what has since been said in the cases of Jones and Shamoon. These Tribunals are chaired by lawyers experienced in the area of employment law and it is wrong to require an elaborate judgment in each case even where the point is a short one. Nevertheless, in the present case, Mr Whitcombe has persuaded me that this appeal must be allowed.
8. I start with his third ground. An extension of time because it is just and equitable to do so, the test in discrimination and victimisation cases, raises different issues to those raised under s111(2). The test under s111(2) is of reasonable practicability and reasonableness. Those are not wholly unrelated but they are different. The reference to the interests of justice and equity, had it stood on its own, would not, in my judgment, have sufficed to impugn the Tribunal's decision. But taken together with what I shall say about the decision on reasonable practicability and the findings, it suffices to case a doubt as to whether the Tribunal had the right test in mind.
9. So the third ground of appeal is a factor which I do not consider in itself enables the Appellant to succeed, but it is part of the background with which I look at the short reasons given by the Tribunal.
10. With that background, I turn to the first ground of appeal. There is no indication in the decision that consideration was given to the circumstances of Mr Evans' ignorance about time limits, and whether his ignorance was reasonable. The focus was on his belief that he would not have to resort to a Tribunal if he got the information he was requesting from his former employer. While that is relevant, the concentration on it, in my judgment, deflected the Tribunal from the central test. The reasons given in paragraph 10 for its finding that it was not reasonably practicable for the complaint to be presented before the end of the three months are stated to be, in particular, the belief that the Claimant would not have to resort to a Tribunal if the employer gave him the information he sought. Mr Blewitt, in his submission, said that this important information would either determine that the redundancy was fair or unfair. That may be true, and it does appear reasonable for the Claimant to seek it. However, the fact that he was seeking it does not in itself mean that it was not reasonably practicable to resort to a Tribunal. It might not have been desirable but was it practicable?
11. The other two factors relied on by the Tribunal were the Claimant's lack of legal representation and his ignorance of the time limits. Mr Whitcombe submitted that the last of these must have been the most important. The Tribunal clearly found the first to be the most important. Had the Tribunal linked the correspondence to the issue of why no inquiries were made about time limits, or why nothing was done and a state of ignorance was maintained, that might well be a sound basis for a finding of absence of reasonable practicability: but there is no such link. As far as the ignorance is concerned, it is clear from the decisions that ignorance of rights or time limits is not a sufficient excuse unless the Claimant could not reasonably have been expected to have been aware of them: see in particular Wall's Meat Co Ltd v Khan [1979] ICR 52 and Marks & Spencer plc v Williams-Ryan [2005} IRLR 562. In Marks & Spencer v Williams-Ryan Lord Phillips MR at paragraph 21 stated that ignorance of the right to complain to the employment tribunal or of the time limit for making a complaint

"does not necessarily render it nor 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".

Phillips LJ referred to the judgment of Brandon LJ in Wall's Meat Co. Ltd v Khan at page 61 in which His Lordship stated that although there was no difference in principle between ignorance of the existence of the right and ignorance of the time limit, there is a great deal of difference in practice between the two in relation to the ease or difficulty with which a finding that the relevant ignorance is reasonable, may be made. Brandon LJ stated

"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 necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries."

I have observed that in this case the Tribunal appears to have found, implicitly, at any event, in paragraph 6, that the Claimant was aware of his right to have recourse to a Tribunal.

12. The Judgment does not reveal that any inquiry was made as to the circumstances of the Claimant's ignorance, or why, given that he knew of the right of recourse, he took no steps to find out about its existence. I referred to what Mr Blewitt said about the context and the correspondence about the criteria for selection. I have also stated that had there been some link between that and the circumstances of why the Claimant remained ignorant and whether that was reasonable the Tribunal's decision would not have fallen into error. It may also be that, the stance taken by the Claimant's union, with whom he was first in contact six weeks before the expiry of the three-month period was relevant. It simply responded to questions about the criteria, did not alert him to the time limit, and appears not to have done so until 25 January, when the area organiser informed Mr Evans that the union was unable to assist because his membership had ceased. If that was what the Tribunal had in mind it might have been reasonable, but there is no reference to any of this in the decision. The only reference to the union is in paragraph 7, which focuses on the fact that the Claimant was unable to obtain the information which he regarded as crucial from the employer via his trade union.
13. I turn to ground two of the appeal. But for ground one, I do not believe ground two as a freestanding ground succeeds. The overlap between the factors that are relevant to the reasonable practicability question within the three-month period, and the factors relevant to the reasonable further period question, means that it is not surprising that a Tribunal might treat them in a somewhat rolled up way. Had the finding that Mr Evans' ignorance within the three-month period was reasonable, not been impugnable, there is nothing to show that it became unreasonable after the three months. As far as Mr Whitcombe's complaint that the Tribunal erred in referring to the time after the conclusion in the correspondence, looking fairly at the decision, that seems to be an additional reason rather than the reason: see the use of the word 'also'. Mr Whitcombe's submission was, that apart from that last sentence there is nothing to show that the Tribunal addressed the period after the three months. For the reasons I have given, I would be disinclined to accept that, had ground one not been established.
14. Mr Whitcombe invited me to substitute a finding that the Tribunal had no jurisdiction to hear the complaint and that it should be dismissed. He did so on the ground that the burden was on the Claimant to satisfy the Tribunal that it was not reasonably practicable to present the complaint within time; and that there was no evidence before the Tribunal that could properly have supported such a finding. He submits, relying on Porter v Bandridge [1978] ICR 943 CA that in the absence of specific evidence the only correct finding would have been that it was reasonably practicable for the complaint to have been presented in time because of the burden.
15. I am not satisfied that there was no evidence or material before the Tribunal to this effect, and for that reason I shall remit the case to a different Tribunal.