United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J R BEASLEY (The Appellant in Person)
For the Respondent	MR D PANESAR (of Counsel) Instructed by: Hammonds Rutland House 148 Edmund Street Birmingham B32 JR


 


SUMMARY

Time Limits – Reasonably practicability

Unfair Dismissal – Exclusions including worker/jurisdiction

Claim for unfair dismissal presented by e-mail 88 seconds outside the prescribed three-month period. Employment Tribunal held that it was "reasonably practicable" to present claim in time as although the Claimant knew on 5 May 2006 that the three month period expired on 6 May 2006, he misread the e-mail address of place to which the claim form had to be sent and sent it at 23.44 on 6 May 2006 to "qsi" and not to the correct address which was "gsi". The claim form was returned to the Claimant at 23.45 and he sent test message (rather than the claim form) to the correct address at 23.57 on 6 May 2006. The Claimant then sent the claim form to the correct address so that it arrived at 00.01and 28 seconds on 7 May 2006 and so it was late.

Issue on appeal was whether the Employment Tribunal had considered all relevant matters relevant to reasonable practicability.

Held: Employment Tribunal had considered the reasonable practicability issue properly taking into account all relevant matters; it had considered whether the Claimant knew of the three month period, the steps taken by him to ensure that claim was brought in time and the impediments preventing him from bringing the claim within the prescribed three month period.


 


THE HONOURABLE MR JUSTICE SIL BER

1. By a decision dated 5 September 2006, a Chairman of the Employment Tribunal sitting at Reading held that the Employment Tribunal had no jurisdiction to consider a complaint of unfair dismissal made by Mr John Beasley ("the Claimant") against National Grid Electricity Transmissions ("the Respondent") on the grounds that his claim had not been presented within three months from the effective date of his dismissal. He now appeals against that decision
2. At a preliminary hearing, His Honour Judge Reid QC held that the issue which could proceed to full hearing was whether it was reasonably practicable for the Claimant's complaint to have been presented in time and that is the issue with which this appeal is concerned. He explained that:

"All that I can do at this stage is to say that I take the view that this is a matter which should go to a full hearing to determine whether or not the Chairman's decision is invalidated or should be reconsidered because the failure to take into account all material matters relevant to deciding whether it was reasonably practicable for Mr Beasley to launch his proceedings in time."

3. The facts found by the Chairman where that:

(a) The effective date of termination of the claimant's employment was 7 February 2006, which was the date shown both in the claim form and in the respondent's response in the Employment Tribunal proceedings;

(b) The claimant was advised immediately after his dismissal that he would be paid in lieu of notice and that this would be operated through the normal pay roll. If the dismissal were confirmed on appeal, any monies would be recovered thereafter;

(c) Following his dismissal the claimant took legal advice and he appealed with the appeal being heard in late March. The result was then made known to him;

(d) The claimant's solicitors notified the claimant in writing on 6 April 2006 of the three-month time limit for presenting a claim to the Employment Tribunal. A subsequent telephone call with the claimant's solicitors suggested that this might not be the case if he were to submit a grievance. Mr Panesar, who was counsel for the respondents before the Employment Tribunal, accepted that the evidence at that hearing was that the claimant's solicitor had said that the period might be extended until 28 days after the determination of the grievance procedure, which did not occur until July 2006;

(e) The claimant was advised by ACAS on 5 May 2006 that invoking the grievance would extend the time limit by 28 days. Later the same day, the claimant rang the Employment Tribunal Service where he was advised that the grievance had no bearing on the actual dismissal and therefore the three month time limit still applied. This was confirmed by the claimant's solicitor who advised him to be on the safe side and to submit his claim within the three-month period;

(f) The claimant endeavoured to complete the form during Saturday 6 May 2006 but he had some difficulty completing it. He misread the e-mail address for the Tribunal Service with the result that instead of typing "gsi" he typed in "qsi" and sent the e-mail at 23.44 on 6 May. The e-mail was returned to him through the mail system at 23.45 as it was not correctly addressed; and

(g) The claimant then sent a test message (which it is common ground was wrongly described by the Employment Tribunal as a "text message") at 23.57 to the correct address of the Tribunal Service before sending the claim form at midnight on 7 May 2006. His claim form was received by the Tribunal Service at 1.28 which was 88 minutes late. I add that the claimant contends that it was received at 1 minute and 28 seconds after midnight and I will assume for the purposes of this appeal that this is correct.

4. The Chairman of the Employment Tribunal said that she was not satisfied that the Claimant could argue that he was misled by conflicting advice, which he had received regarding time limits because the Claimant had all the documentation which indicated that the three month time limit applied and he had also been given specific advice on the day before the time limit expired that he should submit his claim immediately.
5. In the view of the Chairman of the Employment Tribunal, it was the Claimant's failure to transcribe the e-mail address correctly which meant that it was originally sent into "ether as it were". She thought that his position was no different from that of a person who misdials a telephone number for the purposes of a fax and she explained that it was only when the claim was received by the Employment Tribunal that it was deemed to be presented. The Chairman noted that the Claimant could have sent the claim on 6 May albeit three minutes before the time limit expired but he choose instead to send a test message. Indeed she points out that on the Claimant's own evidence, the claim was not sent until 7 May 2006. Thus the Chairman concluded that the claim was out of time and the Employment Tribunal had no jurisdiction to consider it.
6. The Claimant sought a review of the decision because the print-out showed that the claim form had been received at 1 minute and 28 seconds after the midnight deadline and that was confirmed by a member of the Employment Tribunal staff. The response from the Employment Tribunal was that the Chairman refused the request for a review and stated (with my underlining added) that:

"The reason for the rejection of the claim is that it was sent and received out of time. It was reasonably practicable to have sent the claim in time. The difference between 1.5 minutes and 1.5 hours makes no difference as the claim could never have been received in time, given it was only successfully sent by the claimant on 7 May 2006"

7. Section 111(2) of the Employment Rights Act 1996 provides in so far as is material 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."

8. The Claimant is not surprisingly and very understandably aggrieved that a delay of less than two minutes in presenting his claim means that the Employment Tribunal has no jurisdiction even though the respondent has not been prejudiced in any way by this very short delay. He appeals and he contends that the Employment Tribunal did not consider properly whether it was "reasonably practicable" for the Claimant to have presented his claim on 6 May 2006.
9. As I have explained the sole basis on which Judge Reid permitted this case to go to the present full hearing related to whether the Employment Tribunal failed to take into account all relevant matters relating to whether it was reasonably practicable for the Claimant to present his claim form in time.
10. It is necessary first to determine if the Employment Tribunal actually considered if it had been "reasonably practicable" for the Claimant to bring his claim within the prescribed three month period because if this matter had not been considered, this omission would have been at least of very substantial (if not crucial) significance and relevance in determining the issue ordered to be considered on this appeal.
11. Mr Deshpal Panesar for the Respondent is unable to point to any passage in the reasons of the Employment Tribunal in its original decision which expressly refers to the issue of whether it had been "reasonably practicable" for the Claimant to have brought his claim within the prescribed three-month period but he contends that the reasons of the Employment Tribunal have to be read in the context of counsel's submissions, the reasons contained in the original decision as well as those in the review decision. His submission is that this material shows clearly how the Employment Tribunal reached its decision and that it had considered reasonable practicability. I consider that to be a correct approach because it is settled law to adopt the approach advocated by Lord Denning M.R.(with whose judgment Lord Russell and Eveleigh LJJ 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:

"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."

12. I will adopt that approach and in consequence, I have concluded even after bearing in mind that the original decision did not expressly consider "reasonable practicability", that the Chairman of the Employment Tribunal did consider and reach a decision on the issue of whether it had been reasonably practicable for the Claimant to bring his claim within the
14. prescribed three month period this aspect of the case because:

(a) The written skeleton arguments of counsel who was then acting for the claimant before the Employment Tribunal contained a detailed section on the "reasonable practicability" of bringing the claim within the three month period and this takes up three and half pages of the five page skeleton;

(b) A substantial part of the written submissions of Mr. Panesar, who also acted for the Respondent at the Employment Tribunal hearing, were concerned also with the "reasonable practicability" issue;

(c) The reasoning of the Employment Tribunal dealt with the reasonable practicability argument by:

(i) explaining that the submissions of the parties were concerned with the reason why the claim was made late and that is consistent with a consideration of the "reasonable practicability" issue;

(ii) finding that "the claimant had all the documentation which indicated a three month time limit applied and that he was given specific advice the day before the time limit expired that he should get his claim in immediately" which would be a finding which would only really be relevant on the issue of reasonable practicability (paragraph 11);

(iii) holding that the claimant "could have sent the claim on 6 May or be it three minutes before the time limit but choose to send a test message instead" (paragraph 13 of the reasons) This again was a reference to an issue of relevance on the issue of reasonable practicability;

(d) The Employment Tribunal would not have made those findings if it had not been dealing with the issue of whether it had been reasonably practicable for the claimant to bring his claim within the prescribed three- month period;

(e) The reference of the Employment Tribunal in paragraph 11 of its reasons to the case of Marks & Spencer v Williams-Ryan [2005] IRLR 562 which is an authority on the issue of whether it had been "reasonably practicable" for a claimant to bring his claim within the prescribed three- month period; and

(f) The review decision states clearly and expressly that "reasonable practicability" had been considered.

15. Thus I reject the submission that the decision of the Employment Tribunal did not deal with the issue of whether it had been "reasonably practicable" for the Claimant to bring his claim within the prescribed three month period. I am fortified in coming to this conclusion by the statement of Lord Russell of Killowen in Day's case (supra) at page 444D that "I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point ..has overlooked it…" I must now consider whether there was a failure to take into account all material matters relevant to deciding whether it was reasonably practicable for the Claimant to have started these proceedings in time.
16. In Marks & Spencer v Williams Ryan [2005] IRLR 562, (which was referred to by the Employment Tribunal in this case ) Lord Phillips M.R. in a judgment with which Latham and Keene LJ agreed, explained at paragraph 21 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".

17. Lord Phillips then proceeded to say in the same paragraph of his judgment that:

"So far as that question 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 presented 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. It follows that critical factors in determining whether it was "reasonably practicable" for a Claimant to bring his claim for unfair dismissal within the prescribed three month period are (a) the state of the Claimant's knowledge relating to the right to make a claim for unfair dismissal and the need to bring this claim for unfair dismissal with three months of the effective date of his dismissal; (b) the steps taken by the Claimant to ensure that he did bring this claim within that period; and (c) any impediments which prevented the Claimant from bringing this claim within this period. I will consider each of these factors in turn in order to ascertain if the Employment Tribunal considered them properly while always bearing in mind that there is no appeal from findings of fact of the Employment Tribunal.
19. The Employment Tribunal found in respect of issue (a) (the state of the Claimant's knowledge relating to the right to bring a claim for unfair dismissal and the need to bring his claim for unfair dismissal with three months of the effective date of his dismissal) that "the claimant had all the documentation which indicated a three month time limit applied and he was given specific advice the day before the time limit expired that he should get his claim in immediately" (paragraph 11of its reasons). The Claimant accepts that on the evening before his time expired, he was advised correctly that the time period expired on the following day and that shows that this requirement is satisfied. I know that the Claimant does not accept this finding that he had all the documentation because he considers that there was misleading information in various booklets which refers to the three month period being extended; an example was the booklet entitled "Making a claim to an Employment Tribunal" which talks of time limits being extended to six months. This does not undermine the correctness of the finding of the Employment Tribunal that the Claimant knew on the day before the time expired that it was to expire on 6 May 2006.
20. In any event, I must not forget that Judge Reid's decision, which has not been appealed and which does not permit the Claimant to challenge this finding of the Employment Tribunal. In any event, this was a finding of fact by the Employment Tribunal who heard oral evidence, including that of the Claimant, and it is not permissible to appeal decisions by the Employment Tribunal on questions of fact. Thus I conclude that, the Employment Tribunal did consider and take into account the Claimant's knowledge of the need to bring his claim within three months of the date of his effective dismissal albeit on the previous day and there is no dispute about that.
21. Turning to issue (b) (the steps taken by the Claimant to ensure that he brought the claim within the three month period), the Employment Tribunal found first that "it was [the Claimant's] failure to transcribe the e-mail address correctly that meant it was sent into the ether as it were" which prevented the claim being lodged with in the prescribed three month period and second that "he could have sent the claim on 6 May albeit three minutes before the time limit but chose to send a [test] message instead" (paragraphs 12 and 13 respectively of the reasons). The Employment Tribunal was aware of the problems confronted by the Claimant because of his difficulties first in using the Adobe Acrobat format and second in reading the correct e-mail address to which the claim form had to be sent. It had heard evidence about these matters and it made findings of fact which it was entitled to make and which are not, and cannot be, the subject of the present appeal. In any event, it is important to state in the light of the limited right of appeal given to the Claimant by Judge Reid's order that the Employment Tribunal did consider and take into account the steps taken by the Claimant to ensure that that he brought the claim within the three-month period.
22. As to issue (c) (any impediments which prevented the Claimant bringing the claim within this period), the Employment Tribunal considered that the difficulties confronted by the Claimant such as the wrong advice which he had been given on the time limits, his difficulties with the Adobe Acrobat format and in reading the e-mail address of the Employment Tribunal. I consider that there is no error of law in relation to the factors which it took into account although I appreciate that the Claimant disagrees as he points to the limited time in which he had to bring the claim between the time when he was told on 5 May 2006 that the form had to be lodged on the next day and the time when he first tried to send it by e-mail on the following day. The Claimant did have a reduced window of opportunity in which to lodge his claim. His witness statement before the Employment Tribunal and the attached letter did not state that this time period of a day was inadequate or that there was any other reason why it could not be lodged other than his difficulties with the Adobe Acrobat format and in reading the e-mail address of the office to which his claim form had to be sent. Again I consider that the Employment Tribunal considered this factor properly and reached a finding of fact which was open to it on the facts.
23. I therefore conclude that in respect of the issue which Judge Reid permitted the Claimant to raise at this hearing that the Employment Tribunal did not fail "to take into account any material matter relevant to deciding whether it was reasonably practicable for [the claimant] to launch his proceedings in time". Insofar as it is suggested that the findings of the Employment Tribunal are perverse, for the reasons set out in paragraphs 14 to 18 above, the Claimant's case falls a long way short of reaching the threshold for such a claim which is that "it ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal on a proper appreciation of the evidence and the law, would have reached" (per Mummery LJ in Crofton v Yeboah [2002] IRLR 634 [93]). In consequence the appeal has to be dismissed but the Claimant raised many other issues and perhaps I will explain why in any event, he could not succeed on any of them.
24. First, he said that the Employment Tribunal had allowed inadequate time for the hearing of this issue. Having read the written submissions for that hearing I do not consider that this complaint is correct especially as Mr Panesar has explained that at the outset of the hearing before the Employment Tribunal, the Chairman indicated that there was only one hour available and she asked if that would be adequate time and counsel for both parties indicated that it would be adequate. The hearing was then completed in that period without any complaint from the Claimant's counsel and these facts undermine the Claimant's present complaint. Nevertheless in any event for the hearing before me, the Claimant had as long as he required and he also put in very detailed written submissions running to sixteen pages and a supplementary written submission of two pages. So he had a perfectly adequate opportunity to present his case which he did with commendable skill.
25. Second, the Claimant complains about the reasons of the Employment Tribunal, which he contends are inadequate. The nature of the reasons which have to be given by an Employment Tribunal were established in the well-known and frequently quoted statement of Sir John Donaldson MR in UCATT v Brain [1981] IRLR 225 , which was approved by Bingham LJ (as he then was) in Meek v Birmingham City Council [1987] IRLR 250, 251 and which was that:

"27…Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law… But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given"

26. The Employment Tribunal in the present case fulfilled that function in their judgment as it is clear for the reasons which I have sought to explain how its decision was arrived at. It follows that the decision of the Employment Tribunal which included the review decision cannot be impugned on the grounds that inadequate reasons had been given as it complied with the requirements in Brain and in Meek.
27. In reaching that conclusion, I have not overlooked the provisions of Employment Tribunals (Constitution etc) Regulations 2004 Schedule 1 paragraph 30 which set out the matters which have to be set out in the written reasons of the Employment Tribunal and it appears that these have been very substantially (if not completely) complied with. In any event, it is possible to ascertain from the reasons of the Employment Tribunal in this case the matters to which Sir John Donaldson referred, then the decision should not be impugned especially as I am unaware of any case in which a Meek and Brain compliant decision (of which the decision under challenge is an example) has been overturned because it fails to comply with paragraph 30 of the 2004 Regulations
28. Third, the Claimant criticises the Employment Tribunal for concluding that it was "reasonably practicable" for the Claimant to have presented the application within the three month period when it was under two minutes late. The Employment Tribunal had to apply the established principles, which has led to claims being rejected if they are presented minutes after the three month period has expired even though the employer has not been prejudiced by the delay. There are precedents for a similar approach to that adopted by the Employment Tribunal in this case. For example in Fishley v Working Men's College [2004] UKEAT 0485/04 and 0486/04, this Appeal Tribunal upheld a decision of the Employment Tribunal that it had no jurisdiction to hear an application to the Employment Tribunal which was presented 11 minutes late because of break-down in a printer. The reason for that decision was that it had been reasonably practicable for the application to have been presented in time as in the words of Bean J:

"13…it is common experience of anyone who has tried to operate a computer, a printer, or a fax machine , that they are temperamental creatures and one cannot rely on success first time within a few minutes"

29. Fourthly, the Claimant relies on stress as justifying his delay but that matter was not raised in his witness statement or the attached letter to the Employment Tribunal or in any corroborative medical evidence. Furthermore, there has been neither a finding of fact in relation to it by the Employment Tribunal nor a request for a finding in respect of it. In any event, the reasons why the claim was presented late were, as I have explained in paragraph 5 above, first that the Claimant typed the wrong address at 23..44 on 6 May 2006 and second that he sent a test message at 23.57 on 6 May 2006 when he could and should have sent the form to the correct address for launching his claim.
30. In this case the Employment Tribunal considered the material and decided that it was reasonably practicable for it to have been lodged in time. In this connection it must not be forgotten that the question of whether or not it is reasonably practicable for a Claimant to be presented in time "is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie" (per Lord Phillips MR in Marks & Spencer v Williams-Ryan [2005] IRLR 562 at paragraph 43 citing with approval the statement of May LJ in Palmer v Southend-on Sea Borough Council [1984] IRLR 119). This obviously makes the task of anybody seeking to challenge the decision of the Employment Tribunal on the issue of reasonable practicability, such as the Claimant in the present appeal, a very difficult one. I have considered all the points raised by the Claimant and there is no validity in any of them.
31. In conclusion I can well understand why the Claimant is aggrieved by the decision of the Employment Tribunal because he is being deprived of the opportunity to bring his claim even though his claim was just under two minutes late in being presented even though this employers have not been prejudiced in any way whatsoever by this delay. I have every sympathy for the Claimant as the law works first very harshly against those who are a few minutes late in presenting their claims and second extremely favourably in favour of respondent employers who are excused from defending their actions by reason of a delay which has not prejudiced them in any way. Nevertheless, in the light of the words of section 111(2) of the 1996 Act and the authorities to whom I have referred, I have no alternative but to dismiss the appeal. It might well be some consolation to the Claimant to know that he has presented his case with commendable skill and great courtesy. Finally I must pay tribute not only to him for his admirable submissions but also to Mr Panesar for the way in which he conducted this case in the face of initial judicial opposition. The appeal must be dismissed.