United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PATRICK HALLIDAY (of Counsel) Instructed by Messrs Travers Smith LLP 10 Snow Hill London EC1A 2AL
For the Respondent	MR ANDREW WORTHLEY (of Counsel) Instructed by Messrs Nalders 38/39 Lemon Street Truro Cornwall TR1 2NS


 


SUMMARY

JURISDICTIONAL POINTS

Effective date of termination

Time limits – reasonable practicability

The Tribunal erred in holding that the effective date of termination of the Claimant's employment was 2 June. The effective date of termination was 2 May. Chapman v Letheby & Christopher Ltd [1981] IRLR 440 discussed and applied.

The Tribunal did not, however, err in law in holding that it was not reasonably practicable for the Claimant to present her complaint within 3 months, and that she presented her complaint within such further time as was reasonable. Machine Tool Industry Research Association v Simpson [1988] ICR 558, Marley UK Ltd v Anderson [1996] ICR 728 and Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09 discussed and applied.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Teva (UK) Ltd ("the Company") against a judgment of the Employment Tribunal in Exeter (Employment Judge Hollow sitting alone) dated 25 November 2008. By his judgment the Employment Judge rejected the Company's contention that an unfair dismissal claim brought by Mrs Deborah Heslip had been presented out of time.
2. The time limit for an unfair dismissal claim is governed by section 111(2) of the Employment Rights Act 1996, which provides –

"… 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."

3. There are two separate aspects to the appeal. The first is a short point relating to the effective date of termination. The Employment Judge found that the effective date of termination was 2 June 2008, less than 3 months before the claim of unfair dismissal was presented. The Company submits that this finding was not open to him and argues that the effective date of termination was 2 May 2008.
4. The second is a point relating to section 111(2)(b). The Employment Judge held, in case he was wrong about the effective date of termination, that it was not reasonably practicable for the claim to have been brought within 3 months of the earlier date. The Company submits that in so holding the Employment Judge misapplied the law. This submission involves considering two decisions of the Court of Appeal: Machine Tool Industry Research Association v Simpson [1988] ICR 558 and Marley UK Ltd v Anderson [1996] ICR 728. These points have been well argued and concern an area of law which is not straightforward.
5. Shortly after the hearing of this appeal it was learned by counsel that another constitution of the Appeal Tribunal had heard argument and reserved judgment on an appeal concerning similar points. Judgment in that appeal has now been handed down: Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09. I shall refer to it in this judgment.

The facts

6. Mrs Heslip was employed by the Company as a sales executive, selling pharmaceutical products. She had a salary of £30,000 per annum together with a company car and other fringe benefits. By virtue of her terms and conditions of employment she was entitled to 1 month's notice of termination of her employment. There was a "garden leave" provision in the terms and conditions of employment (by virtue of which she might be retained as an employee during a notice period, without any requirement to offer her work), but no provision entitling the Company to pay her in lieu of notice.
7. Mrs Heslip went on maternity leave in July 2007. Until that time she sold the Company's products to GPs and nurses in Cornwall who operated both dispensing and non-dispensing practices. While she was on maternity leave the Company appointed a Dispensing Doctor Account Manager. On her return from leave in January 2008 she dealt purely with non-dispensing practices.
8. In the spring of 2008 the Company decided to restructure its sales operation. A consultation meeting took place on 3 April. Mrs Heslip was advised that a restructure was proposed and that she was at risk of redundancy. She was given to understand that commercial sales in Cornwall would cease and that Cornwall would "lie fallow". Moreover she was told that it was the Company's policy that sales representatives could not live more than 20 minutes off territory. She was not willing to relocate; so there was no vacancy for which she could apply.
9. As part of the consultation process she was given a document setting out, in question and answer form, information which the Company wished to give the employees who were affected by its proposal. The document contained a question asking whether an employee made redundant would have to work the notice period. The answer was –

"This will be discussed on an individual basis but it is possible that all or part of your notice will be paid in lieu, meaning that you may not be required to work your full notice."

10. Later in the document there was a question asking for how long a redundant employee would retain the company car. The answer was –

"You will be eligible to keep your company car until the end of your notice period. If your notice is paid in lieu, this will be the date your notice would officially have ended on."

11. By letter dated 2 May 2008, received by her on that date, Mrs Heslip was formally told that she was redundant. The letter contains the following passages:

"I am writing to you further to our meetings and discussions with regard to the future of your position within the Company. I regret to inform you that your role will be terminated on grounds of redundancy. Your formal termination date is 2^nd May 2008 and your contractual notice of one month will be paid in lieu as the company does not require you to work this….

You will receive your salary and benefits in the usual way up to and including the termination date …"

12. The letter went on to set out the redundancy payment to which Mrs Heslip was entitled and to deal with holiday pay, pension, other benefits, outplacement and discretionary bonus. Out of the redundancy payment, the Company retained £1,000 until the company car was returned. As regards the company car, the letter provided –

"All company property must be returned by your last day of employment. Your manager will speak to you regarding this process. We will arrange to collect your company car on or shortly after 2^nd June 2008….. Once your car has been safely returned the remainder of your redundancy payment will be released."

13. Mrs Heslip had returned most of the Company's property, including product materials, literature and a laptop, prior to receiving the letter. She retained the car until the beginning of June and retained a mobile phone until the middle of June.
14. Mrs Heslip eventually presented her complaint to the Tribunal on 29 August – more than 3 months after she received the letter dated 2 May.
15. The circumstances were the following. On 13 August she received a telephone call from a former colleague to say that an employee who had secured the territory sales manager position for the Devon area was back working in Cornwall in both dispensing and non-dispensing practices. This, she said, was the catalyst which caused her to take legal advice. She contacted solicitors on 19 August, which was the first day they had available to take an appointment. A Bank Holiday intervened. The claim was presented by fax on 29 August.
16. The claim form, as drafted by the solicitors, set out Mrs Heslip's complaint in some detail. Five main heads of complaint were set out. It was said that

(1) the consultation process was a sham, with the key decisions set in stone before it took place, and no proper opportunity for employees to consider the proposals or for management to take into account any suggestions;

(2) the decision to determine Cornwall as fallow was unfair and lacked justification; she had been a top performer for her work undertaken in that territory and other companies had joint representatives for both territories; the territory was already being worked again;

(3) the selection criteria – especially the "20 minute" rule - were unfair, especially bearing in mind her own previous work and the practice of other companies to have joint representatives for both territories;

(4) the role of Dispensing Doctor Manager should have been included within the redundancy process;

(5) no consideration was given to her working the Cornwall territory in a part-time role or taking a pay cut, although she raised this proposal.

17. When cross examined, Mrs Heslip said that prior to the expiry of the 3 months from 2 May she already considered her dismissal unfair on these grounds. Nevertheless, learning that another employee was actually doing work of the nature she had been doing in Cornwall was the catalyst which caused her to seek legal advice.

The Employment Judge's reasons

18. The Employment Judge had to decide whether the effective date of termination was 2 May 2008 or 2 June 2008. This depended on the meaning of the letter dated 2 May 2008. He was referred to and endeavoured to apply principles set out in Chapman v Letheby & Christopher Ltd [1981] IRLR 440, to which I shall return later in this judgment.
19. He quoted the letter dated 2 May 2008 and said the letter was ambiguous by virtue of the words "and your contractual notice of 1 months will be paid in lieu as the company does not require you to work this". He posed for himself the question (paragraph 11):

"Does this mean that the claimant is dismissed with effect from 2 May so that her employment terminates on that date or is she given notice on 2 May which she is not required to work but for which she will be paid so that the employment terminates on 2 June?"

20. The Employment Judge took into account external factors. I consider that his reasoning is fairly reflected by quoting the following passages. He said:

"There are several external factors to which I should refer. First of all the claimant was told in the consultative document that she would be given notice in accordance with her contract or one months notice which ever would be the greater. She was told that she might be required to work all or part of her notice period. She was sent a P45 which stated a leaving date of 2 May 2008 but that was not sent until about 28 May. The Claimant was entitled to retain her car and did so, being entitled to use it for personal use, she paying any mileage or petrol costs incurred. When the respondent's HR manager gave evidence she said that this was a contractual benefit to which the claimant was entitled. It does seem to me that that is inconsistent with the proposition that the claimant ceased to be an employee after 2 May, although I do accept that contractual obligations may subsist after the termination date, usually in the form of restrictions on competition…

It seems to me that taking the point made in the Chapman case, and considering what a reasonable employee might consider as being the date on which he was dismissed, it would be open to him to look at the terms of the letter and also have regard to the various points made in the consultation document …

I have come to the conclusion, as I have indicated, that the letter of 2 May was ambiguous and, resolving that ambiguity in favour of the claimant, I find that its effect was that the claimant's employment terminated at the end of the period of one month from 2 May, that is to say 2 June."

21. The Employment Judge also had to decide, in case he was wrong on that point, whether it was reasonably practicable for the claim to have been presented in time and if not whether it was presented within such further period as was reasonable. This point was fully argued before him. He recorded that he was referred to Machine Tool Industry Research Association v Simpson [1988] ICR 558 and Marley UK Ltd v Anderson [1996] IRLR 163.
22. The Employment Judge said:

"… I would have come to the conclusion, had it been necessary, that it was not reasonably practicable for the claim to have been presented in time. In the claim, as presented to the Tribunal, the claimant made a number of criticisms of the redundancy procedure. I say nothing as to whether those are well founded but they were obviously matters that she had in mind at the time her employment came to an end. On 13 August she received a telephone call from a former colleague to say that a new employee was doing some work in Cornwall of the same nature that she had been doing. It was not clear to the claimant quite how much work that individual was doing but her evidence was that that was the catalyst which caused her to seek legal advice. Given that the information only came to her knowledge at that stage I am satisfied that it was not reasonably practicable for her to have presented her claim before that date."

23. Although the Employment Judge does not say so in terms, I think it is plain that he accepted the evidence of Mrs Heslip to the effect that finding that a former colleague was doing work of the same nature she had been doing was indeed the catalyst which caused her to seek legal advice.
24. The Employment Judge went on to find that the complaint was presented within such further period as he considered reasonable.

(1) Effective date of termination

25. On behalf of the Company, Mr Halliday submitted that it was not open to the Employment Judge to find that the effective date of dismissal was 2 June; it was (in the legal sense) perverse to do so. He submitted that the letter dated 2 May was not ambiguous. On its plain meaning, the letter terminated the employment with immediate effect. There was no justification for considering surrounding circumstances in order to resolve any ambiguity in the letter. In any event, the surrounding circumstances relied on by the Employment Judge – the consultation letter and the retention of the company car – were entirely consistent with a termination date of 2 May. The car being a contractual entitlement, the easiest way to compensate her for that benefit in lieu of notice was to allow her to keep the car during what would have been the notice period.
26. On behalf of Mrs Heslip, Mr Worthley defended the Employment Judge's reasoning. He pointed out that a Tribunal's finding on an issue should only be characterised as perverse if it was plainly wrong. The finding that the letter was ambiguous was a finding of fact open to the Employment Judge, particularly against the background of the consultation document. Moreover the letter stated that all company property must be returned by the last day of employment, and then made provision for the company car to be returned on or shortly after 2 June 2008. The logical implication of that statement was that the last day of employment would be 2 June 2008.
27. Section 97(1) of the Employment Rights Act 1996 provides, so far as material:

"(1) …… in this Part "the effective date of termination"

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by the employer or the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect"

28. In Chapman v Letheby & Christopher Ltd [1981] IRLR 440 the question arose whether a letter by an employer terminated a contract of employment with immediate effect. On the one hand the letter, which was dated 27 February, said that the employment was terminated "from Saturday 10.5.80" – a date some 10 weeks away. On the other hand the letter also said that the employee was entitled to 9 weeks notice and would be paid in lieu of notice.
29. The Appeal Tribunal held that the effective date of termination depended on the true meaning of the employer's letter. If it evinced an intention to terminate the contract at once, paying wages in lieu of proper notice, the effective date of termination would be in February. If, however, it evinced an intention only to terminate the contract at the future date, the effective date of termination would be in May.
30. The Appeal Tribunal (Browne Wilkinson J presiding) said:

"What then is the proper construction of the letter? It is important to remember that the letter was sent to an employee who, if the employer's contention was right, was immediately dismissed by the letter. In our view two things flow from this. First, the construction to be put on the letter should not be a technical one but should reflect what an ordinary, reasonable employee in Mr Chapman's position would understand by the words used. Secondly, the letter must be construed in the light of the facts known to the employee at the date he receives the letter. The fact that some days after 28 February Mr Chapman received nine weeks' wages in a lump sum without deductions (which might indicate compensation for a dismissal which has already occurred) is in our view irrelevant, since he was not told in the letter what he was to receive."

31. The Appeal Tribunal concluded that an employee, reading the letter to find out the date on which he was dismissed, would rightly look to the part of the letter which told him so expressly, ie the words "from Saturday 10.5.80". Therefore the effective date of termination was in May. The Appeal Tribunal did not consider that the letter was ambiguous, but said that if it had been ambiguous, any ambiguity should be resolved in the employee's favour, since otherwise the employee may be left in doubt as to where he stands, and may lose his statutory rights.
32. Applying these principles, I consider that the letter dated 2 May 2008 admits of only one meaning. It plainly evinces an intention to terminate the contract immediately, paying wages in lieu of notice. The letter expressly states that the formal termination date is 2 May 2008. The ordinary, reasonable employee, reading the letter to find out the date of dismissal, would find it in those express words.
33. The Employment Judge thought that some ambiguity was introduced by the words "and your contractual notice of one month will be paid in lieu as the company does not require you to work this". I can see no ambiguity in those words. They evince an intention to pay wages in lieu of notice.
34. Nor do I consider that the earlier letter to Mrs Heslip during the consultation process, setting out information in question and answer form, leads to any other conclusion. That letter left open for decision in each individual case whether all or part of a period of notice would be paid in lieu. It also expressly left open the possibility that an employee who was paid in lieu of notice would be permitted to keep the company car until the date at which notice would have expired ("the date your notice would officially have ended on"). The letter dated 2 May 2008 set out what was to happen in Mrs Heslip's case. Her employment was terminated with immediate effect. She was paid in lieu of notice. She was allowed to retain the company car until the date when notice would have expired.
35. For these reasons I consider that the Employment Judge was wrong to hold that the effective date of dismissal was 2 June. In the light of the express words at the start of the letter dated 2 May, I consider that the only tenable conclusion is that Mrs Heslip's employment was terminated with immediate effect, so that the effective date of termination was 2 May 2008.

(2) "Reasonably practicable"

36. It is therefore necessary to address the alternative basis on which the Employment Judge made findings favourable to Mrs Heslip. He held that, given that she only learned on 13 August that a new employee was doing work in Cornwall of the same nature as her work it was not reasonably practicable for her to have presented the claim before that date.
37. Two decisions of the Court of Appeal address the question whether and in what circumstances it may be not reasonably practicable to present a claim until an employee learns particular information concerning the circumstances of dismissal. Mr Halliday, on behalf of the Company, submits that they are irreconcilable. I shall examine these authorities before turning to the submissions made in this appeal. The governing statutory provision at the time of these authorities was section 67(2) of the Employment Protection (Consolidation) Act 1978, the terms of which were not materially different to the terms of section 111(2).

(i) The Machine Tool case

38. In Machine Tool Industry Research Association v Simpson [1988] ICR 558 an employee who was absent on sick leave was told by her employer that she was to be made redundant at the end of November 1984. Initially she believed that she was indeed redundant and accepted a redundancy payment. However in February 1985 she learned that a typist had been re-engaged by her employer. She had herself been employed in a clerical capacity, and she began to think that there might not have been a redundancy at all. She brought a claim for unfair dismissal. The Tribunal held that it was not reasonably practicable for her to have presented her claim within 3 months of dismissal. The Court of Appeal upheld the Tribunal's decision.
39. Giving a judgment with which Woolf LJ and Mann LJ agreed, Purchas LJ rejected a contention that the employee had to establish the truth of the belief which caused her to bring her proceedings. He said –

"… I see little difficulty in the view that fundamentally the exercise to be performed is a study of the subjective state of mind of the employee when, at a late stage, he or she decides that after all there is a case to bring before the industrial tribunal..".

40. Purchas LJ enlarged, in two ways, upon the "subjective state of mind" of the employee which would have to be established.
41. Firstly, he accepted submissions made by Mr Ouseley, amicus curiae instructed by the Attorney General at the request of the court. He said –

"In my judgment, the submissions made by Mr. Ouseley are correct. They not only reflect the ordinary meaning of the section, to which I have just referred, but are supported by such authority as is available to this court. Mr. Ouseley submitted that the expression "reasonably practicable" imports three stages, the proof of which rests on the employee. The first proposition relevant to this case is that it was reasonable for the employee not to be aware of the factual basis on which she could bring an application to the tribunal during the currency of the three-month limitation period. Mr. Ouseley argues with some force that if that is established it cannot be reasonably practicable to expect an applicant to bring a case based on facts of which she is ignorant. Secondly, the applicant must establish that the knowledge which she gains has, in the circumstances, been reasonably gained by her, and that that knowledge is either crucial, fundamental or important - it matters not which particular epithet, if any, is applied - to her change of belief from one in which she does not believe that she has grounds for an application, to a belief which she reasonably and genuinely holds, that she has a ground for making such an application. I am grateful to adopt the summary of that concept in the words that Mr. Ouseley used, that it is an objective qualification of reasonableness, in the circumstances, to a subjective test of the applicant's state of mind. The third ground, which Mr. Ouseley accepted, is really a restatement of the first two is that the acquisition of this knowledge had to be crucial to the decision to bring the claim in any event."

42. Secondly, Purchas LJ approved a judgment of the Employment Appeal Tribunal in Churchill v A Yeates & Sons Ltd [1983] ICR 380. In that case too an employee learned facts after the 3 month period from which he concluded that redundancy was not the true ground on which he was dismissed. Browne-Wilkinson J said at page 383 and 384

"…the question is whether he can demonstrate to the industrial tribunal that until he was aware of the possibility of challenging the reason for dismissal given by the employers he reasonably took the view that he had no reasonable grounds to complain of unfair dismissal. If that could be established on the facts, then it would be open to an industrial tribunal to hold that it was not reasonably practicable for him to have brought that complaint until he discovered the crucial fact…

If the industrial tribunal find that it was the discovery of the facts relating to some other person doing, as the employee alleges, his job which for the first time reasonably enabled him to put forward a claim on the grounds that he was not, in fact, redundant (he having previously taken the view or been advised that he had no good right to complain of unfair dismissal) then, in our judgment, it would be open to the industrial tribunal to make the finding that it was not reasonably practicable for him to bring his complaint within the three months' period."

43. Purchas LJ accepted those two passages as "fully and succinctly setting out the true position in law". He also regarded them as consistent with existing authority in respect of the expression "reasonably practicable", in particular Wall's Meat Co Ltd v Khan [1979] ICR 52 and Palmer v Southend-on-Sea Borough Council [1984 ICR 372.
44. The tests which Purchas LJ propounded would require an employee to establish not only that he had received new information but also that he had changed his belief on the basis of that information from one where he did not believe that he had grounds for an application to one where he believed that he did. This test has been called the "changed belief" test.

(ii) Marley v Anderson

45. In Marley (UK) Ltd v Anderson [1996] ICR 728 an employee was given notice of redundancy in November 1991. He was an information technology manager. In March 1992 he learned that the business within which he worked had been merged with another business and that an information technology manager had been appointed for the merged businesses. This information is described in the judgment of the Court of Appeal as "the first crucial fact". It caused him to suspect that either there had not been a true redundancy at the time of his dismissal, or else he had been unfairly selected for redundancy. At a hearing the following year the Tribunal held that it was not reasonably practicable for him to present a complaint until he learned the first crucial fact, but that he had then not presented his complaint within a reasonable time thereafter.
46. However, prior to that hearing, in October 1992 the employee made another discovery. He learned that prior to his dismissal there had been a memorandum, never shown to him, which was critical of his performance. Discovery of this memorandum ("the second crucial fact") led him to make a prompt application, in November 1992, to amend his complaint to allege positively that the true reason for his dismissal was conduct or capability.
47. The Tribunal held that it had no jurisdiction to consider the complaint arising out of the first crucial fact, since the employee had not presented his complaint within a reasonable time after learning about it. But it held that it had jurisdiction to consider the second crucial fact.
48. The employer argued that the Tribunal's decision was wrong. In essence the employer argued that the "changed belief" test in the Machine Tool case should be applied. Acquisition of knowledge of the second crucial fact did not permit an employee to present a complaint where he already knew he had grounds for presenting a complaint but had not done so within the time allowed; an amendment to add a ground could not save a complaint of unfair dismissal which was out of time. The employee argued that an employee might indeed present a second complaint of unfair dismissal if he learned a new ground; and the question whether it was reasonably practicable to bring a complaint, and whether it was brought within a reasonable time, should be considered ground by ground.
49. The Appeal Tribunal (Mummery J presiding) and the Court of Appeal upheld the decision of the Tribunal. Waite LJ, delivering a judgment with which Schiemann LJ and Russell LJ agreed, considered the matter first as one of principle. He said that the employee's submission was to be preferred –

"The nature of the employment relationship is such that employers will normally have a greater knowledge than employees of the particular circumstances giving rise to a dismissal. Although the informal procedure operated by the tribunals, under which pleadings and discovery are kept to a minimum, has advantages in speed and flexibility, it suffers from the disadvantage that the information necessary to enable an employee to know and understand the full circumstances of, and motives for, his dismissal may emerge only slowly and gradually. As the picture unfolds, the employee ought to be allowed the maximum opportunity of adding to, or changing, his grounds of complaint. The present case illustrates how strikingly that unfolding picture may develop with knowledge limited at first to facts providing the employee with grounds for denying redundancy (or alternatively a fair selection for redundancy) becoming expanded to include grounds for contending that he had been dismissed for another reason altogether - namely, alleged incapacity or misconduct which he had been denied any opportunity of contradicting or explaining. If he is to be precluded by lapse of time from proceeding with his complaint under the first head, I know of no principle of justice or fairness which would justify restraining him from proceeding with grounds of complaint, raised within a period found by the tribunal to be reasonable, under the second head."

50. Turning to the Machine Tool case, Waite LJ observed that the passages which laid down the changed belief test could "as a matter of linguistic interpretation" and "read in isolation" be regarded as laying down the proposition that a Tribunal must regard the moment at which an employee first develops a belief in a right to claim unfair dismissal on some ground as fixing for all time the moment of reasonable practicablity.
51. However, he considered that the passages in the Machine Tool case, read in context, did not compel this conclusion. He approved a passage in the judgment of Mummery J, giving the judgment of the Appeal Tribunal [1994] ICR 295, 302: "No judgment should ever be construed as if it were a statute, least of all a judgment which is itself concerned with the construction of a statute". He concluded:

"The contexts to which the "changed belief test" and the "Yeates  direction" were directed were a consideration, in the former case, of whether the facts in question were important or crucial in the sense of being fundamental to the employee's belief in his right to claim and a consideration, in the latter case, of that same question in conjunction with the timing of the employee's moment of discovery of the facts concerned. It was not relevant in either of those cases to consider the state of affairs which applies here, namely, the effect upon the employee's grounds of complaint of his discovery first of one crucial fact and then of another. I do not regard the authorities cited as restricting in the least the proposition which, in common with the appeal tribunal, I believe to be the law - namely that the questions posed by section 67(2) of the Act of 1978 (reasonable practicability of presentation within time and the reasonableness of any subsequent period elapsing before presentation) are both matters to be weighed separately - ground by ground and fact by fact - under each head of unfair dismissal upon which a complaint or complaints is or are founded."

(iii) Submissions

52. On behalf of the Company, Mr Halliday made the following submissions.
53. Most fundamentally, he submitted that Machine Tool and Marley are conflicting authorities, and that Machine Tool should be applied in preference to Marley. He submitted that the statutory language, now found in section 111 of the Employment Rights Act 1996, does not support the "ground by ground" approach. The statutory language directs a Tribunal to consider whether it was reasonably practicable for "the complaint" to be presented within 3 months. The complaint is a "complaint by any person that he was unfairly dismissed". The Marley approach, he submitted, involved construing the statute as if the words "on the particular ground relied on" were added after "the complaint". He submitted that a first instance judge could choose which of two conflicting appellate decisions to follow, relying in particular on the approach taken by Donaldson J in Uganda Co Holdings v The Government of Uganda [1979] 1 Lloyds Rep 481 at 483-486.
54. Next, Mr Halliday submitted that what Mrs Heslip learned on 13 August 2008 did not in fact lead her to believe that she had a new ground for claiming unfairness. It merely reinforced her existing belief that the dismissal was unfair. Therefore Marley was to be distinguished; it had always been reasonably practicable for Mrs Heslip to present a complaint on the grounds in question.
55. Further, Mr Halliday submitted that even if the Marley approach was applicable it did not justify the whole claim being allowed to proceed. The only ground which was within time was that one of Mrs Heslip's colleagues had been working in Cornwall. On any view some of the grounds did not relate to her discovery of that fact.
56. Finally, Mr Halliday submitted that even if it was not reasonably practicable for the claim to have been presented until after the expiry of the 3 month deadline, nevertheless it was perverse to conclude that it was presented within a reasonable time. He submitted that there was no satisfactory explanation for the delay between 13 August and 29 August.
57. On behalf of Mrs Heslip, Mr Worthley replied as follows. He submitted that Marley was rightly decided, and was in any event binding on the Appeal Tribunal. He did not concede that Machine Tool and Marley were irreconcilable; but if they were he submitted that it was the Appeal Tribunal's duty to follow the latter, since the former had been fully considered in it: see Re Smith [1988] Ch 456 at 473-474.
58. He further submitted that, once a "ground by ground and fact by fact" approach was adopted, the Employment Judge was fully entitled to reach the conclusion that it was not reasonably practicable for Mrs Heslip to bring her complaint until after 13 August. Learning that an employee was working – doing her very job – in an area which, she had been told, would "lie fallow", gave her a clear basis for saying that her dismissal was unfair in all the respects on which she relied. The Employment Judge was not required to split up the grounds on which she relied, and to disallow her from proceeding on some of them. The information obtained on 13 August affected all the grounds; it was the catalyst which led her to pursue the claim on all the grounds she relied on. The Employment Judge reached conclusions which were open to him, and he committed no error of law. He was entitled to find that the claim was presented within such further time as was reasonable, allowing for the instruction of solicitors, the preparation of a proper claim form, and the intervention of a Bank Holiday.
59. I have already mentioned that, shortly after the hearing of this appeal, counsel learned that another constitution of the Appeal Tribunal had heard argument and reserved judgment on an appeal concerning similar points. Judgment in that appeal has now been handed down: Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09. In a letter to the Appeal Tribunal counsel for the employers made it clear that it was not suggested that any further submissions be provided by either party in either appeal. Neither counsel has sought to do so. It would, of course, have been open to me to call for further submissions; but to do so would have increased the costs to the parties, and I have not found it necessary to do so for the purpose of disposing of this appeal.
60. As I shall make clear, I have found great assistance in the judgment of Underhill P in Crouchman. In one respect, the arguments in this appeal ranged more widely; I have to consider an argument that Machine Tool and Marley are irreconcilable. In another respect, the arguments in this appeal raise acutely an issue which arose in Crouchman less acutely – whether the late discovery of a single fact may entitle an employee to bring an unfair dismissal claim in its entirety even if the employee already believed her dismissal to be unfair.

(iv) Conclusions

61. It is convenient to begin with Mr Halliday's fundamental submission, which is that Machine Tool and Marley cannot be reconciled, and that Machine Tool should be preferred.
62. There is no doubt, as Waite LJ said in Marley in a passage which I have already cited, that the judgment of Purchas LJ in Machine Tool can be read as laying down the proposition that a Tribunal must regard the moment at which an employee first develops a belief in a right to claim unfair dismissal on some ground as fixing for all time the moment of reasonable practicability. Moreover there is no sign, in the formulation which Purchas LJ accepted, of the "ground by ground and fact by fact" approach which prevailed in Marley.
63. It is important to appreciate, however, that it was not critical, upon the facts in Machine Tool, to decide whether the moment at which an employee first developed a belief in a right to claim unfair dismissal fixed for all time and for all purposes the moment of reasonable practicability. In Machine Tool there was essentially a single ground of complaint, and until the employee learned it she had no reason to doubt that she was redundant.
64. In Marley, on the other hand, it was critical to decide whether a "ground by ground and fact by fact" approach was correct. The Court of Appeal addressed fairly and squarely an issue which was central to its decision. It did so after full argument and after full consideration of Machine Tool.
65. In those circumstances I have no doubt that it is the duty of the Appeal Tribunal – as it was the duty of the Tribunal – to follow and apply Marley. It is the later decision of the Court of Appeal; it was reached after full consideration of the earlier decision; and the reasoning in point was critical to the decision. In all but the rarest of circumstances, it is the duty of a lower court to follow the later decision of the appellate court in such circumstances as these: see, for example, Re Smith [1988] Ch 456 at 473-474 per Warner J.
66. Before turning to Mr Halliday's remaining submissions it is convenient to summarise the effect of the decisions of the Court of Appeal, and of the Appeal Tribunal in Churchill v A Yeates & Sons Limited. For this purpose I adopt with gratitude the analysis of Underhill P in Crouchman at paragraph 11 –

"(1) Ignorance of a fact which is "crucial" or "fundamental" to a claim will in principle be a circumstance rendering it impracticable for a claimant to present that claim: see Churchill, paras. 9-10 and 13, approved in both Machine Tool and Marley.

(2) A fact will be "crucial" or "fundamental" in the relevant sense if it is such that, when the claimant learns of it, his state of mind genuinely and reasonably changes from one where he does not believe that he has grounds for the claim to one where he believes that he does have such grounds: see Mr. Ouseley's second proposition accepted in Machine Tool. The reference to a belief that there are "grounds" for the claim is to a belief that the claim is sufficiently arguable to be worth pursuing - "viable", in shorthand. This formulation is not, I think, different in substance from the reference in para. 9 of Browne-Wilkinson J's judgment in Churchill to "discovery of a new fact [which] for the first time shows a cause of action to exist which, on the previously supposed state of facts, did not exist"; but if there is any difference the formulation in Machine Tool is authoritative.

(3) But ignorance of the fact in question will not render it "not reasonably practicable" to present the claim unless (a) the ignorance is reasonable – see Mr Ouseley's first proposition – and (b) the change of belief in the light of the new knowledge is also reasonable. (This requirement of reasonableness perhaps duplicates that which is anyway inherent in the requirement that the fact be "fundamental" (see (2) above).)

(4) Whether the belatedly-learnt crucial fact is true is not as such relevant: what matters is whether the late-acquired information about it has genuinely and reasonably produced the change of belief – Machine Tool (first passage quoted at para. 8 above).

(5) The test set out in those paragraphs must be applied to each "head of unfair dismissal upon which a complaint or complaints is or are founded": Marley, paras. 26 and 28. The concept of a "head" of claim needs some unpacking. It is clear from the ratio of the judgment read as a whole that what Waite LJ has in mind is that an unfair dismissal case under s. 98 may sometimes contain more than one analytically distinct basis of complaint. Obvious examples appear in Marley and Churchill themselves, where the employees wished to allege both that the employer had not proved the reason for dismissal on which he relied (redundancy) and that in any event dismissal for that reason was unfair. But I do not think that the only possible distinction is between challenges to the reason advanced by the employer under s. 98 (2) and challenges to the reasonableness of the decision under s. 98 (4). It would be possible to have different "heads" of claim addressing different aspects of the reasonableness issue – e.g., in a complaint about a dismissal for misconduct, a case that there was inadequate investigation and a distinct case that dismissal was a disproportionate sanction; or differently-based challenges to the reason for the dismissal (as indeed appears to have been the case in Marley, where the "second crucial fact" was held to justify a challenge to the reason for dismissal, even though such a challenge had been pleaded following discovery of "the first crucial fact".) When Browne-Wilkinson J. makes this point in Churchill he speaks of different "grounds" of complaint – see para. 11; so also did counsel for the employer in Marley – see para. 25 (particularly the reference to "ground A" and ground "B"). But I respectfully agree with Waite LJ's tacit preference for the terminology of "heads" of complaint, because the "grounds of complaint" can also mean, more generally, all the facts and matters relied on in support of the claim; and the phrase was indeed used in that sense in the form of originating application (the "IT 1") in use at the time of these three cases. The underlying concept is of a way of putting the complaint which is sufficiently self-contained and different from other ways of putting it that it would not be an abuse of process to mount a distinct complaint based on it: that is the essential ratio of Marley. It follows that tribunals should not be over-minute in analysing different "heads" of claim: the analysis should be of a fairly broad kind. Even so, the distinctions involved may not always be clear-cut.

(6) In a case where it was reasonably practicable to bring a complaint under one head of unfair dismissal but not another, the latter can proceed (provided it is brought within a reasonable time once the relevant fact is known), but the former cannot. This point was not actually expressly decided in Churchill or Marley: indeed in Marley it did not arise, because the first complaint had already been dismissed on other grounds. But the conclusion seems necessarily to follow from Waite LJ's acceptance of the submission (see para. 25) that "it is essentially to the grounds of complaint (as opposed to the right of complaint generally) that [s.111 (2)] applies".

67. I turn to Mr Halliday's second submission, which is that that what Mrs Heslip learned on 13 August 2008 did not in fact lead her to believe that she had a new ground for claiming unfairness. He argues that it merely reinforced her existing belief that the dismissal was unfair. Therefore Marley was to be distinguished; it had always been reasonably practicable for Mrs Heslip to present a complaint on the grounds in question.
68. I reject this submission, for two reasons.
69. Firstly, the mere fact that Mrs Heslip always believed her dismissal to have been unfair is not of itself decisive. The question, in short, is whether she already believed that she had a viable claim of unfair dismissal: see sub-paragraph (2) of the analysis of Underhill P, which I have already quoted, and which I adopt.
70. The distinction between a belief that a dismissal is unfair, on the one hand, and a belief that there is a viable claim for unfair dismissal on the other, is likely to be of particular significance in respect of a redundancy dismissal. I do not find it surprising that three of the leading cases in this area concern knowledge acquired by an employee after dismissal for redundancy. It must be very common indeed for an employee who is dismissed for redundancy to feel that he has been hard done by, and that the consultation process or reason for selection has been unfair. It does not, however, necessarily follow that he will believe there are reasonable grounds for mounting a claim of unfair dismissal. Sometimes an employee will feel that he has no sufficient basis for challenging the employer's assertion that it has dismissed him for redundancy, or its assertion that it has genuinely consulted him first and selected him reasonably. But the acquisition of some later information may give rise to a belief that he has reasonable grounds for claiming unfair dismissal. Churchill, Machine Tool and Marley (in respect of the first crucial fact) were all cases where an employee dismissed for redundancy learned that another employee was doing similar work and where the acquisition of that knowledge potentially made it reasonably practicable to present a claim where it would not have been reasonably practicable to do so before.
71. Secondly, what Mrs Heslip learned on 13 August was certainly a new fact – and in accordance with Marley the test of reasonable practicability is to be applied to her heads of claim "ground by ground and fact by fact". Whether what she learned is to be characterized as a new ground on the one hand, or on the other hand a new fact which lent weight to grounds which she previously believed or suspected to exist, is not the key issue. Care must be taken not to apply the test in section 111(2) over-technically.
72. I see no error of law in the reasoning of the Employment Judge on this point. He accepted that she had criticisms of her employer in mind from the end of her employment, but found that it was not reasonably practicable for the claim to have been presented until she acquired knowledge that another employee was doing work in Cornwall of the nature she had been doing. He was entitled to reach this conclusion.
73. I turn to Mr Halliday's third submission, which is that the Employment Judge was wrong to allow the whole claim to proceed.
74. It is true that the test of reasonable practicability must be applied to each head of complaint: see sub-paragraph (5) of the analysis of Underhill P, which I have already quoted. Sometimes a newly acquired ground or newly learned fact will apply only to some heads of complaint and not to others. Sometimes, however, a newly learned fact will give substance to several heads of claim.
75. This, as I understand the reasoning of the Employment Judge, is what he considered to be the position here. The newly acquired fact was the catalyst causing Mrs Heslip to pursue the claim. It potentially gave substance to each head of claim which she brought, providing reasonable grounds for each of her heads of complaint.
76. The Employment Judge did not consider each head of Mrs Heslip's claim in turn; but I consider that he was entitled to deal with the matter in the round, given the nature of the information Mrs Heslip had learned. If the Company was prepared to allow an employee to work the Cornwall territory, rather than leave it fallow, then the whole basis on which it consulted Mrs Heslip was flawed: this lent substance to her argument that consultation was a sham (head (1)). Likewise it undermined the Company's apparent decision to render Cornwall fallow (head (2)) and its application of a 20 minute rule (head (3)). Once granted that its selection criterion was fundamentally flawed, the justification for excluding some employees, such as the Dispensing Doctor Manager, was also in question, and Mrs Heslip had learned that the employee now working Cornwall was visiting both dispensing and non dispensing practices (head (4)); and if there was to be some work in Cornwall, why not consider employing her part-time to do it (head (5))?
77. For these reasons I do not think the Employment Judge was bound in law to hold that some, but not other, heads of complaint were barred to Mrs Heslip in this case. I see no error of law in his approach, and I consider that his conclusions were open to him.
78. I can deal shortly with Mr Halliday's final submission – to the effect that the Employment Judge ought to have held that the claim was not presented "within such further time as was reasonable". This was a question of fact for him to decide. It was only 16 days from the date when Mrs Heslip learned the information until the presentation of a detailed claim form. I see no error of law in the Employment Judge's decision, and I do not think it was a perverse decision.
79. For these reasons the appeal will be dismissed.