United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW BYLES (of Counsel) Instructed by: North Manchester Law Centre Harperhey District Centre Manchester M9 4DA
For the Respondent	MR CHRISTOPHER TAFT (of Counsel) Instructed by: Andrew McCabe Solicitor Manchester City Council Legal Services PO Box 532 Town Hall Albert Square Manchester M60 2LA


 


SUMMARY

JURISDICTIONAL POINTS

Extension of time: reasonably practicable

Extension of time: just and equitable

2002 Act and pre-action requirements

The practitioner's rule of thumb, that the time for presentation of a claim is three months less a day after the relevant event, means that when an extension of time is given pursuant to the 2004 Regulations, the time is six months less a day.


 


HIS HONOUR JUDGE McMULLEN QC

1. The simple question in this case is: how long is "a period of three months"? It arises in the context of the statutory grievance procedures and its answer determines whether a tribunal has jurisdiction to hear a claim. I refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a reserved judgment of Employment Judge Robertson sitting alone at Manchester on 1 February with a day of deliberations on 8 February registered with reasons on 20 February 2007. The Claimant was represented by a Law Centre worker and on appeal by Mr Andrew Byles of Counsel. The Respondent was represented by a solicitor, who now instructs Mr Christopher Taft of Counsel. The Claimant contended she had been constructively unfairly dismissed. The Respondent denied the dismissal and the claim on the merits and took a jurisdiction point, which is that the claim was presented one day late. Further, there were no reasons for the Employment Judge to exercise his discretion to extend time. The Employment Judge decided against the Claimant on the time point and so did not need to consider an extension for the unfair dismissal claim. He refused to extend time for the discrimination claim. The Claimant appealed. While dismissing the discretion point under Rule 3(7), HHJ Reid QC ordered a full hearing of the sole point now on appeal. At that hearing I decided without giving reasons that the appeal should be dismissed on the time point but invited the Employment Judge to give further reasons following questions which I drafted after canvassing them with counsel, and I have now had further written submissions.

The legislation

3. The Employment Rights Act 1996 Section 111 (2) provides as follows:

" … 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."

Section 111 (3) gives a tribunal discretion to extend time if it was not reasonably practicable to present the claim within the three months.

4. Regulations are made pursuant to Section 33 of the Employment Act 2002. The Employment Act 2002 (Dispute Resolution) Regulations 2004 provide as far as it is relevant in Regulation 15:

"(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and –

…

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

…

(3) The circumstances referred to in paragraph 1(b) are that the employee presents a complaint to the tribunal –

…

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 [of the 2002 Act] in relation to the grievance within the normal time limit."

5. When a claim is made of constructive unfair dismissal, a grievance must be sent to the employer and a period of 28 days must elapse before a claim may be presented. This is because Regulation 2(1) defines dismissal by reference to Section 95(1)(a) and (b) of the Employment Rights Act 1996. What has become known as constructive dismissal is set out in Section 95(1)(c). A grievance is not required for actual dismissal but is for constructive dismissal.
6. There is also a primary time limit of three months under Section 68(1) of the Race Relations Act 1976 but time can be extended if it is just and equitable to do so. The grievance procedure regime applies to such claims.

The facts

7. At a CMD the Employment Judge set up the issue to be tried on the facts and drew the attention of the parties to relevant authorities to which I will turn. The Claimant was employed from 1996 until 21 January 2006 as a customer services officer working on a customer counter, dealing with Council Tax benefits and so on, on behalf of Manchester City Council. It is common ground that she resigned on 21 February 2006. She complained of less favourable treatment on the ground that she is Indian. On 3 April 2006 the Claimant's solicitors sent a grievance letter to the Respondent. It is common ground that on 20 May 2006 the primary time limit expired. In practical terms, the period of three months is treated as three months less a day. The effect of the Regulations is to grant an extension of three months.
8. The grievance was investigated but rejected on 6 June 2006. The Claimant's appeal was also rejected on 4 September 2006 and that concluded the grievance procedure. In the meantime, the Claimant submitted a claim to the Employment Tribunal on 21 August 2006. The Employment Judge found this about the timing:

"The Claimant explained to me in evidence why she delayed until 21 August 2006 before presenting her claim to the Tribunal. I regret that I found her evidence far from satisfactory. Her oral testimony directly contradicted her witness statement. She told me, and on balance I accept, that she was not aware of any Tribunal time limit until she spoke to a friend on 18 August 2006 who advised her that the time limit was three months (not six months as she asserted in her witness statement). She then spoke to her solicitor, Mr Khan over the weekend (I am satisfied that, as she told me on oath, the conversation took place then, not before, as her witness statement implied). He appears to have advised her that the grievance procedure was relevant to the time limit, but I found the Claimant's evidence unreliable as to exactly what he said. She could not tell me reliably whether Mr Khan had explained time limits to her previously. She then attended the Tribunal on 21 August 2006 to present the claim. She did not seek to explain her failure to present the claim until 21 August 2006 in any other terms than that she did not know there was any time limit at all until 18 August 2006."

He concluded that the time limit expired on 20 August 2006

9. He turned his attention to the discretionary extensions when he said this:

"I am satisfied that the claimant could have presented her claim by 20 August 2006. It was reasonably practicable for her to have done so. I do not accept ignorance of the time limit rendered it not reasonably practicable. The claimant had access to legal and Trade Union advice. It is well known that there is a time limit. Indeed, it is well known that there are time limits for most proceedings. The claimant is an educated individual who was clearly able to conduct her affairs between February and August 2006 (she pursued her grievance in this period, and indeed she has not contended she was incapacitated in any way). There is no evidence that she was given wrong advice. She did not wrongly believe she had until 21 August 2006 to present the claim. The advice she had on 18 August 2006 was such that she was already out of time. She did not delay the claim pending her grievance appeal. She simply did not know there was a time limit. This in my judgment did not render it not reasonably practicable to present the claim in time."

10. As to the race discrimination claims he said this:

"I recognise that the complaint is only one day out of time, and that there would be no discernible prejudice to the respondent if I allowed it to proceed. But the fact is that it is out of time, there is a time limit which is to be observed, and the claimant has shown no good reason for failing to present the complaint within time. I do not consider it would be appropriate to extend time when the claimant had no good reason at all not to have made the claim in time. I have decided that in all the circumstances it would not be just and equitable to extend the time limit. The Tribunal cannot consider the claim".

In addition he concluded that if he had allowed the claim to proceed, many of the claims would have been out of time and would otherwise have fallen foul of the 2002 grievance procedure regime.

Discussion and conclusions

11. Mr Taft's submission is simplicity itself. The normal time limit for presenting these claims expired on 20 May 2006. The "period of three months beginning with the day after" that day begins on 21 May and ends on 20 August 2006. That is what the Employment Judge found although he had authority in favour of 21 August before him.
12. The simple rule for calculating a period of months was set out by Diplock LJ in Dodds v Walker [1981] 1 WLR 1027. It is known as the corresponding date rule. It is this:

" My Lords, reference to a "month" in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month's notice given in a 30 day month is one day shorter than one month's notice given in a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.

This simple general rule which Cockburn C.). in Freeman v. Read (1863) 4 B. & S. 174, 184 described as being "in accordance with common usage . . . and with the sense of mankind," works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on. the 31st of a 31 day month and expiring in a 30 day month or in February, and notices expiring in February and given on the 30th or the 29th (except in leap year) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends upon the last day of the month in which the notice expires."

13. The phrase under construction in that case was Section 29 (3) of the Landlord and Tenant Act 1954: "not less than two nor more than four months after the giving of the landlord's notice". A tenant's response on 31 January 1979 was held to be within four months of September 30 1978.
14. The corresponding date rule came under scrutiny in Zoan v Rouamba [2001] 1 WLR 1509 CA. The issue was whether a hire agreement was exempt under the Consumer Credit Act if a payment was required within a period "not exceeding 12 months beginning with the date of the agreement". The Court found that payment becoming due on "the first anniversary" of the agreement meant the agreement was not for 12 months but 12 months plus a day. Dodds v Walker was cited to the Court but does not emerge in the judgment. Chadwick L J giving the judgment of himself, Henry and May LJJ said this:

" 23. Where, under some legislative provision, an act is required to be done within a fixed period of time "beginning with" or "from" a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v. Higgon (1840) 6 M. & W. 49, that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day. Examples of such an "exclusive" construction are found in [citing authorities]…

24. Where, however, the period within which the act is to be done is expressed to be a period beginning with a specified day, then it has been held, with equal consistency over the past 40 years or thereabouts, that the legislature (or the relevant rule making body, as the case may be) has shown a clear intention that the specified day must be included in the period. Examples of an "inclusive" construction are to be found in [citing authorities]… . Salmon L.J. … in Trow v.Ind Coope (West Midlands) Ltd. … observed, at p. 924, that "I cannot … accept that, if words have any meaning, 'beginning with the date of its issue' can be construed to mean the same as 'beginning with the day after the date of its issue.' "

25. The judge held that it was "obvious," from the use of the expression "beginning with the date of the agreement" … that the period of 12 months prescribed by that paragraph included the date of the agreement. In our view he was plainly correct to reach that conclusion. … We can see no basis on which this court could refuse to apply the reasoning which led the majority (Harman and Salmon L.JJ.) in Trow v. Ind Coope (West Midlands) Ltd [1967] 2 Q.B. 899 to hold that there is a real difference between a direction that a period of time is to begin with a specified date and a direction that a period is to be reckoned from that date."

15. The Court of Appeal judgments in Zoan v Rouamba and Trow v Ind Coope therefore offer a binding construction of the words "beginning with" which is the same phrase as is used in Regulation 15(1)(b). For the purposes of the law on unfair dismissal, that construction was expressly followed in Hammond v Haig Castle & Co Ltd [1973] ICR 148 NIRC where Sir John Donaldson (President) said:

"In the light of the decision of the Court of Appeal in Trow v Ind Coope (West Midlands) Ltd. [1967] 2 Q.B. 899 it is clear that the period beginning with the effective date of termination includes that date as part of the period of four weeks".

That was the original limitation period before it was extended in 1975 to the present three months; the principle remains.

16. Again in an employment law context in Pacitti Jones v O'Brien [2005] IRLR 889, the Inner House of the Court of Session had to consider whether the Claimant had been continuously employed for a period of one year in order to present a claim of unfair dismissal, by reason of Section 108(1) of the 1996 Act. By section 211(1) continuous employment "begins with the day on which the employee starts work", and by Section 210(2) a month means a calendar month and a year means a year of 12 calendar months. The Claimant started work on 8 April 2002 and was dismissed with notice which expired on 7 April 2003. She was held to be one day short of one year's continuous employment. Lord Reed giving the judgment of the Division at para 15 distinguished Dodds v Walker and held that Wood J (P) in Pruden v Cunard Ellerman Limited [1993] IRLR 317 EAT correctly construed the three month period for unfair dismissal as effectively meaning three months less a day.
17. A good deal of the argument before the Employment Judge and before me concerned the different construction given to Regulation 15 by HH Judge Birtles in Singh t/a Rainbow International v Taylor UKEAT/0183/06. The summary of the case says this:

"The EAT held that the statutory extension of time under Regulation 15(1) … means three months and not three months less a day."

The claimant there was dismissed on 20 June 2005, the "normal time limit" expired on 19 September 2005 and the claim was presented on 20 December 2005. Judge Birtles upheld the Employment Judge's conclusion that the claim was in time, being presented on the last day of the extended three-month period. In doing so he distinguished Pacitti v O'Brien on the basis that it was concerned with Section 108(1) and 211(1) of the 1996 Act (continuous employment) and there was a difference in the language of Regulation 15(1) of the 2004 Regulations.

18. Mr Taft submitted that is not a valid distinction. Judge Birtles' phrase "three months from that date gave an extension of time to 20 December 2005" (para 13) is correct as far as it goes for that is a construction of the word "from" but it is not apt where the words "beginning with" appear as they do in the Regulations. Employment Judge Robertson said he was "unable to understand the reasoning in Singh". Nevertheless, it is contended on behalf of the Claimant that he was bound to follow the judgment of the EAT in Singh and he committed an error of law in not doing so.
19. The solution to that difficulty is found in Zoan and Trow. These authorities are binding on the EAT and on the Employment Tribunal. The correct construction of Regulation 15, as the Employment Judge found, gives an extension of three months beginning with 20 May 2006 and ending on 20 August 2006. Judge Birtles did not have his attention drawn to Zoan and Trow. The parties before him were not legally represented. I respectfully agree with Mr Taft that Pacitti cannot be distinguished since the statutory language is the same. Judge Birtles considered the matter again in Carcianiga v The British Leprosy Relief Association UKEAT/0071/07, this time with counsel on both sides. However the correctness of Singh was not disputed by them. The editors of Harvey on Industrial Relations and Employment Law say this of the judgment in Singh "it is submitted that as a matter of logic and mathematics, the decision is simply wrong" (para. 7.02). The editors of Employment Law Practice say "the reasoning and conclusions… appear doubtful" (para. 11/067). In Harris v Towergate London Market Ltd UKEAT/0090/07 I adopted without argument the construction of the Employment Judge here.
20. The position of the EAT in relation to previous EAT authorities was set out by Morison J (P) and members in Secretary of State for Trade and Industry v Cook [1997] ICR 288 at 292:

"The appeal tribunal is not bound by its previous decisions although they will only be departed from in exceptional circumstances, or where there are previous inconsistent decisions."

21. The National Industrial Relations Court is the predecessor of the EAT in its jurisdiction over appeals from employment tribunals. Haig v Hammond is inconsistent with Singh and so if there were no other authorities it would be open to me to follow whichever I thought was correct. I would apply Haig v Hammond. That is not the position facing me in this case for there is binding Court of Appeal authority (Zoan and Trow) and highly persuasive Inner House authority (Pacitti) which controls my judgment. It follows that the Employment Judge reached the correct conclusion. As a matter of principle, he was not bound to follow Singh for although he did not know of Zoan, as it was not put before him, he knew that the persuasive authority of Pacitti had discussed the rule in Dodds v Walker, and had approved the approach of the EAT in Pruden. As a matter of law, the judgment of the Employment Judge was correct. He may have arrived at it by a route which on its face showed him declining to follow an EAT judgment because he could not understand the reasoning but Hammond and Pruden were equally binding on him, and, as we now know, Zoan and Trow bound him and all divisions of the EAT and the NIRC. Since he committed no error of law in the judgment he made, he cannot be criticised for the route which he took to achieve it.
22. In short, the practitioner's rule of thumb that the time for presentation of a claim is three months less a day after the relevant event means that when an extension of time is given pursuant to the 2002 Act and Regulations, the time limit is six months less a day.

Discretion to extend time

23. During the course of the hearing, arguments began to be raised about the exercise of the Employment Judge's discretion to extend time. Over objections of Mr Taft, I requested further reasons from the Employment Judge as to the evidence which he heard relating to what was in the minds of the Claimant and her solicitor in mid-August 2006. I am grateful to the judge for sending his notes and further reasons. It is clear that there was no basis for a submission that it was "not reasonably practicable" for the unfair dismissal claim to be put in. I reject the contention that the solicitor was influenced by what Mr Byles contends was the current state of the law as set out in Singh and that that was the reason why the claim was put in late. Thus it was not open to the judge to give an extension. Similarly, I can see no substantive material on which it could be said that it was just and equitable to extend the period for the race discrimination claim by a day. The Employment Judge considered the relevant material.
24. All of that is by way of background to the formal decision which it is unnecessary for me to make in this case on the extension of time point. This ground of appeal was properly disposed of by HHJ Reid QC under Rule 3, since on this material the point has no reasonable prospect of success. If it were live before me, under what might be said to be an out of time application under Rule 3(10) against Judge Reid's opinion, or as an application to amend the Notice of Appeal today, I would refuse both. There is no sustainable basis for attributing to the change of staff at Stockport Law Centre the failure to challenge Judge Reid's opinion by way of a Rule 3(10) application. An amendment to achieve the same result at a full hearing would be an abuse of the process, and I would take account of the material now extant to hold that it had no prospect of success and so refuse it.
25. For those procedural and substantive reasons, the Employment Judge's auxiliary reasons, not necessary for his decision on unfair dismissal, and wholly understandable for his decision on the discrimination claim, will be upheld.