United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S SWANSON (Representative)
For the Respondent	MR J GIDNEY (of Counsel) Instructed by: Wolverhampton City Council 2nd Floor Civic Centre St Peters Square Wolverhampton WV1 1RG


 


SUMMARY

JURISDICTIONAL POINTS: Extension of time: just and equitable

Just and equitable extension of time. Employment Tribunal failing to take into account relevant factors. Appeal allowed; decision reversed; time extended and case remitted for hearing on merits.


 


HIS HONOUR JUDGE PETER CLARK

1. This case has been proceeding in the Birmingham Employment Tribunal (ET). The parties are Mrs Wright, Claimant and Wolverhampton City Council, Respondent. This is an appeal by the Claimant against the Judgement of Employment Judge Ms P Hughes, following a Pre-Hearing Review held on 3 December 2007, dismissing her claims of race and sex discrimination brought against the Respondent, her employer, on the grounds that the claims were out of time and that it was not just and equitable to extend the time. That judgment with reasons was promulgated on 2 January 2008.

Background

2. The Employment Judge found that the Claimant raised two relevant complaints of discrimination. The primary time limit for the first complaint expired on 12 January 2007 and the second on 12 February 2007.
3. The Employment Judge heard oral evidence from the Claimant, whom she considered an honest and straightforward witness. She found the following relevant facts. In early July 2006 the Claimant became aware that her job was at risk. Three jobs were likely to be reduced to two. She consulted her trade union representative and was advised throughout by the union. On 9 November 2006 her representative e-mailed the Respondent mentioning a potential claim for race discrimination. On 29 November she launched an internal written grievance complaining of race and sex discrimination. At no time was she advised by her representative that there was a time limit for presenting a claim to the Employment Tribunal.
4. On 3 April 2007, after the primary limitation period had expired, she went to see a union solicitor. She was told by that solicitor that her claims appeared to be out of time; that was the first time that she became aware of time limits. The solicitor said that he would draft her claim to the ET and send it to her, but could not act for her because there was a conflict of interests, the Claimant might not have been correctly advised by the union.
5. She received a draft form ET1 from the solicitor, under cover of a letter dated 18 April. She posted the form ET1, the Judge accepted, on 23 April 2007. She then heard nothing from the ET. She spoke to her trade union representative after about four weeks (Reasons, paragraph 10) and said that she had heard nothing. She was told that these things take time and she should wait a little longer. She did wait for a further period of time and then telephoned the Employment Tribunal on 8 June 2007, to be told that the claim form had not been received and that she should fax a copy to the Employment Tribunal office. She did so that same day, the Judge found, although the form was date-stamped by the Tribunal as received on 15 June 2007. The date of the Claimant's fax transmission was the 8 June 2007.

The ET Decision

6. The Judge found that had the claim form been lodged at the Employment Tribunal on or shortly after 23 April she would have held that it was just and equitable to extend time since the Claimant had been reliant upon advice up to that point.
7. However, looking at the further period of delay from 23 April to 8 June 2007 the Judge found that she had not received a satisfactory explanation as to why the Claimant waited for some considerable time before contacting the Tribunal (Reasons paragraph 15). The Judge said this;

"15. …I accepted that the claimant was probably right to say that she spoke to her union representative before contacting the tribunal, but I was mindful that this was at a stage when she knew that this person had already given her unreliable advice. Bearing in mind that the claimant knew when she posted the form in April that it was already out of time I concluded that she failed to explain why, after sending the form, she did nothing to ensure it had been received and was being dealt with, until she contacted the tribunal what is likely to have been 8 June 2008, which is the date that the fax came through."

8. The Judge then addressed the remaining factors, the first being the reason for and length of delay, set out in section 33 of The Limitation Act 1980, imported into this just and equitable discretionary exercise by Smith J in British Coal Corporation v. Keeble (1997) IRLR 336, paragraph 8. Having done so she concluded that it would not be just and equitable to extend time "because I was not satisfied as to the reasons for the delay beyond 23 April." (Reasons, paragraph 19).

The Appeal

9. The appeal was permitted to proceed to this full hearing with all parties present by Elias P at the paper sift stage. Various grounds of appeal are advanced and are developed by Mr Swanson in the skeleton argument that was lodged late, but which I have read. I have also considered the response on paper by Mr Gidney. Having done so, it seemed to me then and seems to me still, that the critical point in the appeal concerns that period of time on the Judge's reasoning between 23 April and 8 June 2007, after the Claimant had posted the form ET1 until she telephoned the Employment Tribunal. I drew the parties' attention to the Court of Appeal Decision in Peters v. Sat Katar Ltd [2003] IRLR 574, a case which did not appear in the bundle of authorities lodged with the Employment Appeal Tribunal and was not cited to the Judge below.
10. Peters was concerned with an application for an extension of time for appealing to the Employment Appeal Tribunal from the Employment Tribunal. Time limits for such appeals are strictly enforced; see United Arab Emirates v Abdelghafar [1995] ICR 65; approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Co Limited [2000] IRLR 111. In considering such applications there is not the width of discretion afforded by the just and equitable provision in the present case. What happened in that case was that Ms Peters, acting in person, posted her appeal against an Employment Tribunal decision to the EAT well within the 42 day time limit for appealing. It did not arrive. She contacted the EAT four weeks later, after time had expired. On being told that her Notice of Appeal had not been received she faxed a copy to the EAT that same day. The Registrar refused her extension of time for appealing and I upheld that decision, referring to the EAT decisions in Capital Retail Foods Limited v Corrigan [1993] IRLR 430 and Camden NHS Trust v Kennedy [1996] IRLR 381, where it was held that a Claimant could not rely on the reasonable practicability escape cause (less strict than the just and equitable principle but stricter than the Abdelghafar approach to the exercise of discretion on time for appealing in the EAT) where professional advisers fail to check that a Form ET1 had been received by the ET within the three month primary limitation period.
11. On further appeal the Court of Appeal reversed the decisions below, holding that a litigant in person could not be expected to have in place a similar system to that of a solicitor for checking whether a communication sent by post had been received. She was entitled to rely on the presumption of receipt under Rule 35(3) of the Employment Appeal Tribunal Rules. Further, she was not put on notice to expect an acknowledgement from the EAT. Once told of the non-delivery she acted without delay in faxing a copy of the notice to the EAT.
12. It seems to me that the Court of Appeal's reasons for reversing the exercise of discretion below in that case has a resonance in the instant case. In support of the appeal Mr Swanson submits correctly that an extension of time is an exception rather than the rule and acknowledges the task facing him in showing that in some way the Judge's decision was Wednesbury unreasonable. Looking at the whole of the Wednesbury test, the first question is whether the Judge below has failed to take into account relevant factors or taken into account irrelevant factors. Mr Swanson submits that on the face of her reasoning in relation to the critical period between the 23 April and 8 June 2007, the Judge failed to take into account the following relevant factors. First that the Claimant was not aware of any system of acknowledging receipt of the form ET1; secondly that she relied on the misleading advice of her trade union representative, and thirdly that the Claimant acted promptly as soon as she was made aware on 8 June 2007 that the original package had not arrived in the post. Mr Gidney, in dealing with this point, submits that the Judge took into account all relevant factors, as appears at paragraph 15. She considered each of the factors under the Keeble approach; she carried out the balancing exercise, in particular balancing the prejudice to the respective parties, and arrived at a conclusion which cannot be categorised as perverse in the Wednesbury sense. He points out correctly that it is not for the EAT to review the exercise of discretion in a tribunal below. The Employment Appeal Tribunal's powers are limited to interfering only where an error of law is made out. He also submits that there are material distinctions to be drawn between the present case and that of Peters, not least that in Peters the appellant had submitted a Notice of Appeal within time, whereas in the present case, as the Employment Judge noted, the form ET1 was already well out of time when it was first posted on 23 April 2007. It followed that there was a particular onus on this Claimant, unlike Ms Peters, to ensure that no further delay took place.
13. Having considered those rival submissions I prefer the submissions of Mr Swanson. It seems to me, looking at paragraph 15 in the context of the whole of the Judge's reasons, that having accepted that until April 2007 the Claimant had placed her trust in her union representative and followed the advice given to her, something which taking into account the authorities the Judge concluded did not amount to fault on the part of the Claimant herself, she then ascribes to the Claimant personal fault for again relying on her trade union representative. Plainly with the benefit of hindsight the advice which was given to the Claimant originally, which led to her being out of time in the first instance, may be said to have been unreliable and that the Claimant ought to have known of it. But I return to the Judge's findings of fact as to what the union solicitor told the Claimant - that was that there was a conflict of interest and that the union might not have correctly advised her. That is far removed from the finding of fact forrming the Judge's material conclusion, that she knew that the trade union representative had already given her unreliable advice. There is a distinction between the present case and that of Ms Peters; where she, Ms Peters, had been through the Employment Tribunal process and was now embarking on an appeal, this Claimant, Mrs Wright, had not. She had received no information as to what happened once a form ET1 had been sent to an Employment Tribunal in order to institute proceedings.
14. Finally, the Judge does not appear to have taken into account, as a material factor, the Claimant acting promptly as soon as she was made aware by the Employment Tribunal that the document had not arrived when initially posted.
15. It is not for me to usurp the function of the Employment Judge in the overall assessment of the factors which go to the exercise of discretion. I therefore arrive at my conclusion on the basis of the Judge's own findings What tipped the balance here in favour of the Respondent was that the Judge was not satisfied as to the reasons for the delay beyond 23 April 2007. Those reasons it seems to me did not differ from the reasons that the Judge accepted as justifying an extension of time had the original form been successfully delivered in April 2007. That logical inconsistency drives me to the conclusion that the proper course to take in this case is to allow the appeal and to reverse the finding of the Employment Judge; to declare that it is just and equitable to extend time, and to remit this case for a hearing on the merits before the Employment Tribunal, subject to any further case management orders which the Employment Tribunal finds appropriate.