United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PHILIP BROWN (An Appellant in Person) On behalf of all five Appellants
For the Respondent	Written submissions

SUMMARY

Jurisdictional Points – Extension of time: reasonably practicable / just and equitable

The Employment Tribunal did not err when it held the claims by foster parents were out of time. It was not necessary for the EAT to consider the other aspects of the appeal.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case involves the application of the principles in play when claims to an Employment Tribunal are said to be out of time. The judgment represents the views of all three members who pre-read the papers. We will refer to the parties as the Claimants and the Respondent.

Introduction

2. It is an appeal by the Claimants in those proceedings against the judgment of an Employment Tribunal sitting at Leicester, Employment Judge Mr J A Caborn and members, registered with reasons on 20 June 2007. The Claimants were represented by one of their number Mr Brown who has today represented all of them again with conspicuous care. The Respondent was represented by Counsel.
3. Four Claimants claim unfair dismissal and detriment by reason of exercising a right to public interest disclosure and the fifth, Mrs Law, complains also of unlawful disability discrimination. The issues were determined at a CMD and included, broadly speaking, whether the Claimants were employees by section 230 of the Employment Rights Act 1996 and if so whether they had sufficient continuity of service pursuant to section 108 of the 1996 Act to enable them to bring claims of unfair dismissal in its ordinary sense; to determine whether the claims were brought in time pursuant to section 111 of the 1996 Act; to determine the same in respect of detriment claims as workers pursuant to section 43K; in respect of Mrs Law whether she came within the expanded definition of employment in section 68 of the Disability Discrimination Act 1995 and whether her claim was in time in respect of the different formula for allowing out of time claims when it is just and equitable so to do.
4. The Tribunal determined all those preliminary issues against the Claimants. The Claimants appeal. HHJ Pugsley sent it to this preliminary hearing at which provision was made for written representations permissively. However, when I read these papers last week it appeared to me that we might be assisted by written submissions and invited but did not require the Respondent to make submissions. It has done so and we are grateful to the solicitors representing the Respondent for reacting promptly to our request.

The legislation

5. So far as it is relevant to our proceedings the legislation we have cited above relates to the time for presenting a claim to an Employment Tribunal which in the rule of thumb language is three months less a day. Where it is not reasonably practicable to present a claim, then it must be presented in a reasonable period thereafter. For the purposes of the DDA, the period again is three months less a day but there is a discretion where it is just and equitable to allow a claim to be made thereafter.
6. Much of the preliminary hearing before the Employment Tribunal was taken up with the jurisdictional issues of employee, worker and "in employment". However, when Mr Brown appeared this morning we canvassed with him whether it would be expedient to deal first with the time point since he sensibly agreed that if he failed on the time point none of the others would matter. So it was that we considered the facts relating to the claim being out of time as held by the Tribunal and the submissions which Mr Brown made upon them. Thus our judgment will focus upon those issues and as will become clear we did not need to hear from Mr Brown on the earlier other two points because we have upheld the judgment of the Tribunal that these claims were made out of time. Thus assuming in his favour for this purpose that there was a relationship such as entitles the Claimants to apply in respect of unfair dismissal and in Mrs Law's case disability discrimination and that they had sufficient length of service for the former. We then consider whether the claim was in time or more accurately whether the Tribunal erred.

The facts

7. The facts are unusual for the Claimants in these cases are families who look after children in foster care. The primary finding by the Employment Tribunal is that the Claimants were regulated by statutory instruments and documents emanating from Peterborough City Council and that they did not constitute a contract of employment for that is common ground. The Tribunal said this:

"19. The essence of a foster care arrangement is the welfare and wellbeing of the foster child and which is subject to the relevant legislation including the Children Act 1989 and the Fostering Service Regulations 2002 (the Regulations). Before anyone can be appointed a foster carer, understandably, there is need for careful scrutiny including ensuring compliance with the relevant legislation. Regulation 2 of the Regulations provides a definition of a "Foster Care Agreement" which has "..the meaning given to it by regulation 28(5) (b)" of the Regulations and which requires a fostering service provider (in this case the respondent) before approving a person as a foster parent to enter into a foster care agreement covering the matters referred to in Schedule 5 of the Regulations. The parties agree this Agreement does not constitute a contract of employment. It is noted that in 2004 a new Foster Care Agreement was introduced but in the event nothing turns upon that because, as has been noted, it is not the contention of the claimants that the Foster Care Agreement constitutes a contract of employment. Further before a child is placed in the care of an approved foster carer Regulation 34(3) the "responsible authority" (ie the respondent) is required to enter into a foster placement agreement and which is required to cover the matters referred to in Schedule 6 of the Regulations."

Thus the Tribunal came to the conclusion in relation to the time during which they had fostered children in these terms:

20. The claimants contend that they fostered children almost on a continuous basis (and that if any gaps did arise they were only of one or two days duration) throughout the periods referred to by Mr Brown at page 27 of his written submission, namely:

20.1 Mrs Law July 1994 – August 2003 9y 1m

20.2 Mr and Mrs Rayner June 1992 – June 2004 12y 0m

20.3 Mr and Mrs Brown June 1985 – January 2003 17y 7 m

(As mentioned previously this Tribunal has proceeded on the basis that since 1998 the claimants have been associated with the respondents and for the purpose of this decision has not considered any relationship prior thereto). It is accepted by all claimants that none of them have fostered children after the dates referred to by Mr Brown.

Notwithstanding the common ground that the relationship was not constituted in writing as a contract of employment, there was argued to be an implicit contract. That was rejected.

8. The Tribunal came to these conclusions about the claims being in time:

"29.1. The claimants Mr and Mrs Brown elected not to give evidence.

29.2. The claimant Mrs Law acknowledged that her complaint of disability discrimination arose in August 2003. In about February 2005 Mrs Law pursued a complaint with the Ombudsman and which complaint the Tribunal understands was based upon the same facts she seeks to rely upon in pursuit of a complaint before the Employment Tribunal. However, notwithstanding being aware of the facts upon which she seeks to rely - from at least February 2005 Mrs Law has not been able to provide the Tribunal with an explanation of why her claim was not presented to the Tribunal at an earlier date.

30. In the circumstances therefore even if the claimants had established that they were employed by the respondent pursuant to contracts of employment, the Tribunal would still have concluded that their claims of unfair dismissal should be dismissed because they were presented outside the three month period commencing with the effective date of termination and no claimant has established that it was not reasonably practicable to present their claim within that period, alternatively that if it was not reasonably practicable that it was presented within such further period as was reasonable. It was suggested by the claimants that in effect they were suspended. The Tribunal, however, does not accept this argument. In effect the reference to suspension relates to the Foster Care Agreement. For reasons which are not before this Tribunal the respondent has chosen not to place foster children with the claimants in consequence no Foster Placement Agreements have been, in place since the dates referred to in paragraph 20 above. The Tribunal has found that there was no obligation upon the respondent to place foster children with the claimants and there was no obligation upon the foster carer to accept a foster child and in these circumstances the Tribunal has unanimously concluded that the respondent choosing not to place a foster child with any of the claimants does not equate to suspension."

A similar provision applies in respect of the detriment claims under section 43 of the Employment Rights Act 1996.

9. In respect of the extension the Tribunal addressed itself in the following terms:

"32. Further If the claimants or any of them do satisfy the definition of worker and in consequence the tribunal is mistaken in its conclusion, on the basis of the evidence available before It, for the reasons previously expressed in relation to "time" the Tribunal would have concluded that any such complaint was presented out of time having regard to the provisions of 848(3) of the 1996 Act in that any complaint was not presented to the Tribunal before the end of the period of three months beginning with the date of the act or a failure to act to which the compliant relates or 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. Indeed the claimants did not adduce any evidence in this regard. Accordingly, even if the Tribunal is wrong in its conclusion of the definition of 'worker' the claimants complaints of detriment cannot proceed because they have been submitted out of time and there is no evidence before -the Tribunal which would enable those claims to be further considered."

And for the purposes of Mrs Law's case it made the following finding:

"34. Further the claimant Mrs Law accepted in her evidence that her claim crystallised in August 2003 and therefore having regard to the provisions of Schedule 3 paragraph 3 of the 1995 Act her claim submitted in 2006 is considerably out of time. In relation to disability discrimination claims that are submitted out of time it is necessary for the Tribunal to consider whether it would be just and equitable to extend time to allow the claim to go forward. In February 2005 Mrs Law pursued a complaint before the Ombudsmen and which compliant relied upon the same facts and matters she seeks to rely upon in her compliant to the Tribunal. Accordingly the relevant facts and matters must have been to her knowledge at that time ie in February 2005.

35. The Tribunal, however, has not been provided with any or any satisfactory explanation for the delay in presenting her complaint, nor has any or any satisfactory reason been advanced explaining why it would be just and equitable to extend time and. therefore, given that the complaint relates to a period prior to August 2003 the Tribunal has unanimously concluded that it would be neither just nor equitable to extend time to allow the claim to go forward. Time limits are imposed for the purpose of ensuring claims are presented without delay and by delaying the presentation of a claim the possibility of a fair hearing is reduced to the detriment of both parties because by reason of passage of time memories fade and in consequence the possibility of a fair hearing reduced. In these circumstances the Tribunal has unanimously concluded that it would be neither just nor equitable to allow a complaint of disability discrimination to proceed."

On the basis of those findings the claim was held to be out of time.

The Claimants' case

10. The Claimants appeal in detailed arguments all of which have been carefully drawn to our attention by Mr Brown. Essentially he contends that there was some sort of relationship after the dates which we have cited (para 7 above, from paragraph 20 of the Tribunal's judgment). That being so, only when the suspension of the relationship came to an end did time begin to run for the purposes of presenting claims at the Employment Tribunal. He also relies upon various aspects of the conduct of the Respondent which included keeping their names on file, writing off some of Mrs Law's loan and continuation of payment of the fees for membership of the fostering network organisation. Other benefits were said to be in place. A number of authorities was drawn to our attention but the point which Mr Brown put forward was that because they were employees then the time was extended.

Discussion and conclusions

11. In our judgment the Employment Tribunal did not err in the finding which it made as to reasonable practicability; these claims were very substantially out of time. It cannot be said that the Tribunal failed to consider extensions of time under the provisions respectively of the Employment Rights Act and of the DDA. Those are discretionary matters and the decision would have to exhibit consideration of wholly irrelevant factors or be wrong in principle for us to intervene at the EAT.
12. We accept the submission made on behalf of the Respondent which is in the following terms:

"4. It is clear that the Employment Tribunal was given limited evidence of the facts relating to the out of time issue, which state of affairs was not helped by the fact that the Appellants, Mr and Mrs Brown, gave no evidence to the Employment Tribunal (ref paragraph 29.1 of the Employment Tribunal's written reasons). There was however sufficient evidence to come to a finding of fact and conclusion. Mrs Law explained that she was aware of a potential DDA claim in August 2003 (paragraph 29.2) but could give no explanation as to why she had not presented a claim at an earlier date. The Appellant Mrs Rayner acknowledged in evidence that the effect of date of termination of her employment was June 2004 (which date would also apply to Mr Rayner, her husband). Mrs Law accepted in her evidence that her claim crystallised in August 2003 having regard to the provisions of Schedule 3 Paragraph 3 of the Disability Discrimination Act 1995 and accordingly a claim submitted in 2006 is out of time (reference paragraph 24 of the written reasons)."

That, it seems to us, is a complete answer to the Claimants' case and once the findings were made, focused upon the separate considerations of the two statutes, the judgment cannot be faulted.

13. We appreciate that this will be a grave disappointment to all five of the Claimants in the case whose sterling contribution to the social fabric and social care of young and vulnerable children in the Peterborough area cannot be underestimated. We hope that they will continue to be available for those services at some stage in the future, but strictly as a matter of law the Tribunal did not err in its depiction of the time scales in this case.
14. We would very much like to thank Mr Brown for his measured and careful submissions to us. The appeals are dismissed.