United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JANE McCAFFERTY (of counsel) Instructed by: Messrs Mills & Reeve LLP Francis House 112 Hills Road Cambridge Cambridgeshire CB2 1PH
For the Respondent	IN PERSON


 


SUMMARY

JURISDICTIONAL POINTS – Extension of time: reasonably practicable

Claimant dismissed for misconduct – Internal appeal panel decision announced orally without reasons two days before expiry of three-month limit under s. 111 (2) of Employment Rights Act 1996 – On basis of oral decision, Claimant believes "hopeless" to bring unfair dismissal claim – On receipt of written decision received after expiry of time limit, Claimant believes that he does after all have grounds for bringing claim – Tribunal holds not reasonably practicable to present claim until receipt of written reasons - Appellant employer accepts (in light of Ashcroft [2008] ICR 613 and Bevan [2008] ICR 682) that Claimant was entitled to wait until outcome of appeal known but contends that at that point he knew all that he needed to bring the claim and that the written reasons gave him no new grounds.

Held, dismissing appeal, that the Tribunal was entitled to hold that the appeal panel's written reasons genuinely changed Claimant's belief in the viability of his claim and that that change was reasonable - Machine Tool Industry Research Association v Simpson [1998] ICR 558 applied – Consideration of effect of Machine Tool, Churchill v A Yeates & Sons Ltd. [1983] ICR 531, and Marley (UK) Ltd. v Anderson [1996] ICR 728.


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. This is an appeal against the decision of an Employment Tribunal sitting at Leicester, comprising Employment Judge Goodchild sitting alone, that the Claimant's claim for unfair dismissal was brought within time because it had not been reasonably practicable for him to bring it within the primary time limit. Judgment was given at the hearing on 15^th January 2009 and written Reasons were sent to the parties on 16^th February. The Appellant, the Cambridgeshire and Peterborough NHS Foundation Trust, is represented before me by Ms Jane McCafferty of counsel (who did not appear below). The Claimant, the Respondent to this appeal, appears in person.
2. It is convenient to start by setting out the terms of s. 111 (2) of the Employment Rights Act 1996 (so far as material):

… [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.

The correct approach to the test of "reasonable practicability" prescribed at (b), which has been used in the unfair dismissal legislation since 1971, has been the subject of a great deal of judicial analysis and exposition. The issue in the present appeal, however, is confined to one particular aspect, and I will consider the authorities relevant for that purpose in due course.

3. The relevant factual and procedural background can be summarised as follows:

(1) The Claimant is a psychiatric nurse, who commenced employment with the Trust in November 2005. In 2007 he was the subject of a complaint from a patient, referred to in these proceedings as "LB", that he had acted inappropriately towards her. Disciplinary proceedings ensued. There were five allegations, which were formulated by the Trust as follows:

You had telephone conversations with [LB] which had an explicit sexual content;

Sent her text messages with an explicit sexual content;

Visited her alone, in contravention of her previous request not to have lone male staff visiting;

Made attempts to kiss her during this visit;

Attempted to persuade her to have a personal relationship with you.

(2) On 21^st February 2008, following a disciplinary hearing, the Claimant was told that all the allegations against him had been upheld and that he was summarily dismissed with immediate effect. That was the effective date of termination, and it is common ground that the three-month primary time limit prescribed by s. 111 (2) (a) of the 1996 Act expired at midnight on 21^st May 2008.

(3) The Claimant appealed. For various reasons, into which I need not go, the final appeal hearing did not take place until 19^th May 2008. The hearing took up most of the morning, and the Panel retired to deliberate. At about 1:15 p.m. the hearing reconvened, and the Chair of the Panel said this:

We have come to the conclusion that, taking everything into account and all the evidence displayed that has been produced to us, we do believe that the charges of crossing the professional boundaries are gross misconduct and these have been proved. As a consequence you are guilty of improper conduct. Therefore we are upholding the decision of the disciplinary panel. You will be notified of the details of this outcome.

I have quoted this from the formal minute of the hearing. It does not purport to be verbatim, but the parties are agreed that it can be treated as accurate for present purposes, in particular in the reference to "the charges" (plural).

(4) The Claimant was from the date of his dismissal well aware of the possibility of bringing proceedings in the employment tribunal. He had indeed shortly after his dismissal rung the tribunal helpline and been told that he should exhaust any internal procedures and then bring his claim "as soon as possible". In reliance on that advice he had not commenced proceedings prior to the outcome of the appeal.

(5) The Claimant's evidence – which the Judge accepted – was that he understood the decision of the Appeal Panel, as delivered at the end of the hearing, to be a complete rejection of his case and a complete acceptance of the full charges against him - that understanding was plainly reasonable in the light of the language used - and that in those circumstances an application to the employment tribunal would be hopeless.

(6) On 28^th May the Claimant received the formal "appeal outcome letter" setting out the Panel's findings. (Before the Tribunal it was the Trust's case that that letter was in fact included in a pack which the Claimant received on 22^nd May; but the Judge accepted his evidence that he only received it on 28^th May.) The letter revealed that the Panel had not in fact fully endorsed the findings of the original hearing. The position can be summarised as follows. In relation to the first two charges, the Panel held that the Claimant had had the various contacts with LB alleged – that is to say that he had texted and telephoned her – and that that constituted improper conduct and a "breach of professional boundaries" towards a vulnerable service user; but it could find no clear or tangible evidence that the messages and calls had "an explicit sexual context". As regards the third charge, the Panel found that the evidence was not sufficient to prove that the Claimant had visited LB alone as alleged. It followed that the fourth allegation also fell to be dismissed, since the Claimant's attempts to kiss LB were said to have occurred on the occasion of the visit in question. As regards the fifth charge – that is that the Claimant attempted to persuade LB to have a personal relationship with him – the Panel found as follows:

The panel believe that on the balance of probabilities evidence heard throughout the appeal hearing demonstrated that you attempted to have a personal relationship with LB. The evidence included:

11 Text messages from your mobile telephone to LB in 2 days. The content of two of these being available to the panel.

3 telephone calls from your mobile phone to LB's phone on 2^nd October 2007. You agreed that one of these phone calls was a scheduled call, but could not provide any reasonable explanation why the contents of this call had not be noted in the patient notes.

5 telephone calls from service user LB, BT landline telephone to your mobile telephone lasting in total approximately 2 hours and 20 minutes.

Your own reflections that the scheduled telephone call on the 2^nd October 2007, lasting 42 minutes, had compromised professional boundaries.

The appeal panel concluded that on the balance of the probability you were guilty of improper conduct as such action on your part was in breach of professional boundaries and therefore constitutes an act of gross misconduct. The panel did not uphold your appeal against dismissal on the grounds of attempting to persuade LB to have a personal relationship with you.

The appeal panel concluded that attempting to persuade LB to have a personal relationship with you was a clear breach of professional boundaries and therefore you were guilty of improper conduct amounting to gross misconduct. Therefore your summary dismissal was the appropriate course of action and within the band of reasonable responses for an employer.

(7) It was the Claimant's evidence, which the Judge accepted, that reading the appeal outcome letter transformed his view of the viability of the appeal. He believed that the – as he saw it – dismissal of the first four charges wholly undermined the Panel's conclusion on the fifth. In his witness statement before the Tribunal he said:

The Appeal Hearing outcome was significantly different from the previous findings of the Disciplinary Hearing and being so much more in my favour, convinced me that I had a valid case to put to the Employment Tribunal.

The Judge noted his oral evidence as follows:

When I read [the appeal outcome letter] through, that which appeared to be hopeless had a hope. I now had information in which I could bring a case to the tribunal.

(8) He presented an ET1 online that same day. It is convenient to note at this point that the claim form also made a complaint of unlawful deductions; but no point about that arises on this appeal.

4. The Judge's comment on that sequence of events appears at para. 10 of the Reasons as follows (something has gone wrong with the detailed wording but the gist is clear):

[The appeal outcome letter] is crucial. That letter is inconsistent with that which was said on 19 May orally. On 19 May orally anyone listening to what would have concluded that the allegations against the claimant were accepted by the appeal body. In fact the written decision of reasons for the decision itemised success by the claimant, as he would see it at the first blush, in relation to four of the five complaints. There on closer analysis it is clear that his borderline conduct in the other first four complaints did affect their judgment on the 5^th, which resulted in his appeal being dismissed, but nevertheless there was a rejection of the full nature of the original claims. This is something that the claimant did not know about.

On that basis, the Judge went on to say this, at para. 15, having recorded his finding that the Claimant did not receive the appeal outcome letter until 28th May:

I … hold as a fact that to the claimant that which had been hopeless now had hope. That was because grounds of refusing the appeal substantially challenged the original decision to dismiss him. Frankly he should have been notified of those reasons on 19 May. If he had then there would be no case to go forward. So I make that clear. In my view it was not reasonably practicable until he was given the reasons for the rejection of the appeal to bring the claim to the Employment Tribunal having regard to the special facts in this case.

He went on to hold – which is not in issue if the Judge's premise is correct – that the Claimant acted sufficiently promptly in presenting his claim later that day.

5. There is one aspect of the case which I should note before proceeding any further, although in the event it is only of marginal significance. It has been recognised in several cases in this Tribunal that the regime introduced by the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 – the recent demise of which has caused few tears – can create a trap for claimants in circumstances such as those of the present case. Employees will, not unreasonably and entirely in accordance with the spirit of the Regulations, await the outcome of internal appeal processes before commencing proceedings. If those processes continue beyond three months from the effective date of termination, they will be entitled by reg. 15 of the 2004 Regulations to an extension of a further three months. However, if those processes conclude within the first three months, even if only by a very slight margin, the primary statutory time limit remains in place, and in those circumstances an employee may find himself having to commence proceedings within a very short window: in the two leading cases – Ashcroft v Haberdashers Aske's Boys School [2008] ICR 613 and Royal Bank of Scotland v Bevan [2008] ICR 682 – it was a matter of hours. In those cases it was held that the older case-law (most authoritatively formulated in the decision in the Court of Appeal in Palmer v Southend on Sea Borough Council [1984] ICR 372) required some modification. Whereas previously the position had been that the existence of a pending appeal would not normally be held to render it not reasonably practicable to commence proceedings within the time limit, it should now normally be regarded as the right course for employees not to commence proceedings while internal processes are continuing, at least within the primary three month period - with the result that if those processes terminate very shortly before the expiry of that period it may well be correct to conclude that it was not reasonably practicable for the employee to present his claim in time. The Judge was referred to Ashcroft, but he did not rely on it in his reasoning. Presumably that is because the Claimant still had some 36 hours left when he learnt of the decision of the Appeal Panel, and it would have been hard for him to contend that it was not reasonably practicable for him to present a claim within that period given that he was able to do so within twelve hours following the receipt of the appeal outcome letter a week later. Rather, the Judge's focus was entirely on the difference between the decision as announced on 19^th May and the written reasons as received on 28^th May. That therefore is the reasoning which is in issue on this appeal. Ashcroft and Bevan are significant only to the extent that, as Ms McCafferty accepted, they preclude any argument from the Trust to the effect that the Claimant's reliance on the misleading terms of the oral announcement of the Panel's reasoning was immaterial because he could and should have already commenced proceedings irrespective of his pending appeal.
6. The present case is thus, on the Judge's findings, one where the claimant initially believes that he has no viable claim but changes his mind when presented with further information subsequent to the expiry of the primary time limit. The question whether such a claimant can assert that it was in those circumstances not reasonably practicable for him to bring his claim within the limit has been considered in a number of reported cases, none of which, regrettably, was drawn to the attention of the Employment Judge. Three in particular were relied on by Ms. McCafferty. I consider them in turn. (They are all in fact concerned with the terms of s. 67 (2) of the Employment Protection (Consolidation) Act 1978, which is the statutory predecessor of s. 111 (2); but the terms of the two sections are materially identical.)
7. The first case is the decision of this Tribunal in Churchill v A Yeates & Sons Ltd [1983] ICR 381 (also reported at [1983] IRLR 187, from where I take the paragraph numbers). The facts appear sufficiently from the headnote, which reads as follows:

The employee, an area manager, received a letter on December 21, 1981, stating that he had been made redundant. On March 19, 1982, he telephoned his solicitors, who had been advising him since February 4, to say that he understood that the employers had a representative calling on his old customers. A complaint of unfair dismissal was presented to the industrial tribunal on April 15 after the three months' time limit prescribed by section 67(2) of the Employment Protection (Consolidation) Act 1978 had expired. The first ground on which the complaint was based was that redundancy was not the real reason for the dismissal but had been used as a pretext to get rid of him. Five further grounds were given based on matters that could render a dismissal for redundancy unfair. The industrial tribunal rejected the employee's submission that it had not been reasonably practicable to bring the complaint within the time limit since all the matters complained of, except the first ground, were within his knowledge at the time of the dismissal and they held that they had no jurisdiction to hear the complaint.

The appeal was allowed. I should set out the entirety of the reasoning in the judgment of Browne-Wilkinson J at pp. 382- 4:

8. As it seems to us there are two related questions here. The first and possibly the most fundamental is this: Can ignorance of a fact, the existence of which is fundamental to the right to complain of unfair dismissal, amount to circumstances which render it not reasonably practicable to bring a complaint? The second is whether, in a case where an applicant relies in part on grounds which depend on the existence of a fact of which he was ignorant, and in part on grounds which are not dependent upon such fact, it can be said that it was reasonably practicable to present the complaint within the three months' period.

9. As to the first point, we find it impossible to say that there cannot be cases where ignorance of a fact fundamental to the existence of a good cause of action is not a matter capable of leading an industrial tribunal to the conclusion that it was not reasonably practicable to bring the complaint within three months. So far as the researches of the parties' legal advisers have extended (and so far as our knowledge extends) there has never previously been a reported case under section 67(2) in which it has been urged that it was not reasonably practicable to bring a complaint within three months on the grounds of ignorance of fact which is necessary to found the cause of action. Hitherto, all the cases have been concerned with a different point: namely, whether ignorance of the right to complain of unfair dismissal or of the procedure to adopt in order to make such complaint, or as to the time limit provides a ground for saying that it was not reasonably practicable to present the claim within the time limit. As it seems to us it is impossible to say that it is practicable for somebody to bring a case of unfair dismissal until he is aware of a fundamental fact which renders his dismissal unfair. We are not saying that it is necessary for him to know all the facts. There must be very few cases indeed where the discovery of a new fact for the first time shows a cause of action to exist which, on the previously supposed state of facts, did not exist. But we cannot rule that there are no occasions in which ignorance of facts prevents an industrial tribunal from holding that it was not reasonably practicable to present the complaint within time.

10. In this case, if for the moment we assume a complaint presented by the employee relying on ground (1) alone (there being no reference to grounds (2) to (6)), 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.

11. That leads us to the second point, which is the point on which the industrial tribunal decided the matter; viz. that because other grounds were relied upon in the complaint (and as he could have presented a complaint based on those other grounds within the three months) it was unnecessary for them to consider whether or not it was practicable for him to bring a case based on ground (1). In our judgment that view is not right in law. In the present case, grounds (2) to (6) of the complaint proceed on the basis that the reason for dismissal was redundancy; the new factual allegation contained in ground (1) challenges the reason given for dismissal by the employer (i.e. redundancy). The employee is in fact raising a new and separate ground for alleging unfairness. Grounds (2) to (6) relate to the fairness of a dismissal for redundancy, i.e. relate to the questions to be considered by the industrial tribunal under section 57(3). Ground (1) in the complaint goes to the honesty and genuineness of the reason given for dismissal, i.e. it goes to the point which has to be decided by the tribunal under section 57(1) and (2). In our judgment it is not enough to say that it was reasonably practicable to bring a complaint on certain grounds if it is demonstrated that it was not reasonably practicable to bring a complaint on another separate ground. For those reasons, we think that the right order is to allow this appeal and to remit the matter to the industrial tribunal for them to consider what were the facts of this case. 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.

12. We must emphasise that our decision in this case is limited very much to the very unusual facts of this case. We are dealing here with an allegation that there is a discovery of a fact of fundamental importance the existence or non-existence of which makes a crucial difference as to whether or not there is a claim for unfair dismissal. Nothing in this decision should be taken as indicating that ignorance of facts of a less fundamental kind can or should be considered as providing a ground for saying that it is not reasonably practicable to present the complaint.

8. The decision of the Court of Appeal in Machine Tool Industry Research Association v Simpson [1988] ICR 558 (also [1988] IRLR 212) was another case where the employee, a typist, who had been dismissed ostensibly for redundancy, learnt, just after the expiry of the primary time limit, that her former employers had engaged someone to fill her job. The tribunal held that the employee's ignorance of the re-engagement of another typist up to that date had been reasonable; and on that basis it held that it had not been reasonably practicable for her to present her complaint within time. The Court of Appeal upheld that conclusion. One issue in the case was whether it was necessary for the claimant actually to prove that her old job had indeed been filled or only that, as a result of the late–acquired information, she (reasonably) believed that to be the case. Purchas LJ, who delivered the only substantive judgment, said this:

Taken in the context of the whole of section 67 and applying the plain reading to the words of the section, for my part 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. There is no indication in the wording of the section that it is necessary for an applicant to be relieved of the strict time limit to establish, as fact, those facts which have caused a genuine frame of mind, and reasonably so caused it, to form a decision to present a complaint to the tribunal out of time.

He went on to accept the submissions of Mr Ouseley of counsel, acting as an amicus, as follows (at pp. 564-5):

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.

Finally Purchas LJ set out para. 10 and the second half of para. 11 (from "For those reasons…") from the judgment of Browne-Wilkinson J in Churchill and said, at pp. 565–6:

With respect and gratitude, for my part I would accept those two passages from that judgment as fully and succinctly setting out the true position in law, which should direct the approach of the court considering under section 67(2) whether it should or should not be satisfied on the facts that it was not reasonably practicable for the complaint to be presented in circumstances such as those prevailing in this case. By that I mean that during the period of the three-month limitation there were crucial or important facts unknown, and reasonably unknown, to the employee which then became known as facts to her such as to give her a belief, and a genuine belief, that she had a claim to be brought before the industrial tribunal.

9. The final case is the decision of the Court of Appeal in Marley (UK) Ltd v Anderson [1996] ICR 728 (also reported at [1996] IRLR 163, from where again I take the paragraph numbers). There too the employee had been dismissed ostensibly for redundancy but subsequently, and after the expiry of the primary time limit, learnt facts which called into question whether that was in fact the true reason for his redundancy. There were two such facts, described in the Court of Appeal as "the first crucial fact" and "the second crucial fact", which he learnt at different times. The first crucial fact was that the company for which he worked had been merged with another company in the group and that a position in the merged company equivalent to that which he had held had now been filled. Following the discovery of that fact he commenced proceedings some two months after the expiry of the primary time limit. He pleaded on the basis of the first crucial fact that either redundancy was not the principal reason for his dismissal or that he had been unfairly selected for redundancy. The second crucial fact was the discovery of a memorandum criticising his performance. This did not emerge until some months later. He sought leave to amend his originating application to allege, in the alternative, that he had been dismissed on the ground of capacity and that his dismissal on that ground was unfair. The industrial tribunal held that it had not been reasonably practicable for the employee to bring in time the claim as first formulated but that he had not commenced proceedings within a reasonable period once it had become practicable. It accordingly held that it had no jurisdiction to entertain the claim as originally pleaded. However, it allowed the amendment to plead the second crucial fact, explicitly applying the same test that it would have done if the claim had sought to be raised in free-standing proceedings – that is, it held that the employee's ignorance of the fact until the date of discovery was reasonable and that he had made the application within a reasonable period following that discovery. The claim thus proceeded on the basis of the amended alternative pleading. The Court of Appeal upheld that decision. Waite LJ, who gave the only substantive judgment, set out and endorsed the statements of the law in Churchill and Machine Tool. The employer's argument, however, was that once the employee had sufficient information to believe that he had an arguable case for unfair dismissal – as he unquestionably had when he learnt the first crucial fact – that "fixed for all time the moment of reasonable practicability". Waite LJ rejected that argument. At para. 25, pp. 737–8, he set out the argument of counsel for the employee, as follows:

Mr Bowers… relies upon the fact … that there is no prohibition in the Act of 1978 or the Regulations of 1993 [i.e. the Employment Tribunal Rules] against bringing more than one complaint in respect of the same dismissal. If one complaint follows another based upon identical grounds, then that, he acknowledges, is prima facie vexatious and would be liable to be struck out. But, if a complaint based upon ground A cannot be adjudicated because it is held to have been brought too late, there is nothing to prevent the employee from issuing a fresh complaint based upon ground B, in respect of which the industrial tribunal is entitled (and bound) to reach an independent conclusion as to whether or not it should be treated as having been filed within time under section 67(2). He submits, in short, that it is essentially to the grounds of complaint (as opposed to the right of complaint generally) that section 67(2) applies.

He then went on to accept that argument. In particular he pointed out how, in the nature of things, employees were liable to discover only gradually and piecemeal the full circumstances of their dismissals. He said at para. 26 (p. 738 E-F):

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.

He rejected the submission of counsel for the employers that that approach was inconsistent with the judgment in Churchill and Machine Tool. He emphasised (at para. 28, p. 739 C-D) that the language of a judgment should not be read as if it were the terms of a statute, and continued, at p. 739 F-G:

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.

10. Ms. McCafferty submitted that Biggs v. Somerset County Council [1996] ICR 364, in which the Court of Appeal held that a claimant could not rely on a mistake as to the substantive law as rendering it not reasonably practicable to bring a claim in time, raised essentially the same issue as the line of cases culminating in Marley. I can see how that could be argued, but the fact is that the Court of Appeal did not refer (and apparently was not referred) to any of these cases; and I do not think that Biggs can be used to qualify or otherwise help to construe their meaning and effect. It may be that on another occasion an attempt may have to be made to reconcile their reasoning; but I must proceed on the basis that the law is as stated in Churchill, Machine Tool and Marley. (I should also for completeness mention two other decisions of the Court of Appeal in this area which were not mentioned by Ms. McCafferty – James W Cook & Co (Wivenhoe) Ltd v. Tipper [1990] IRLR 386 and London Underground Ltd v Noel [2000] ICR 109 – but these essentially illustrate and apply the approach adopted in Churchill and Machine Tool rather than developing it further.)
11. Although I believe that the principles emerging from those authorities are reasonably clear, each is concerned with the specific problem presented on its particular facts, and there are some inconsistencies of terminology. It may therefore be desirable for me to summarise the position – so far as relevant to the issues on this appeal - as I understand it. I do so as follows:

(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".

Having attempted that summary, I should however acknowledge that judicial exposition should never cause tribunals to lose sight of the basic words of the statute. That point is made in Marley – and see also Post Office v Sanhotra [2000] ICR 866, at para. 16 (pp. 871-2), per Charles J.

12. Although the Employment Judge was not referred to the relevant authorities, it is likely enough that he was generally familiar with their effect. In any event, his reasoning can plainly be analysed in line with them. What he was saying was that the contents of the appeal outcome letter, setting out for the first time the Panel's detailed reasoning and conclusions, constituted a crucial or fundamental fact which genuinely (and reasonably – though as to this see below) led the Claimant to change from believing that he had no grounds for bringing a claim to believing that he had such grounds.
13. Ms McCafferty, in her cogent and well-presented submissions, submitted that that conclusion was not open to the Judge. She made a number of points, but the essence of her case was that the appeal outcome letter did not effect the relevant change in the Claimant's belief; or, if it did, that it was not reasonable that it should have done so. She submitted that the undisputed evidence showed that the Claimant always believed that he had a good claim and that all that the appeal outcome letter did was to give him an additional argument: to use Browne-Wilkinson J's phrase at para. 13 of Churchill, the letter did not make "a crucial difference", but simply (in his judgment) strengthened his case. She relied in particular on the following points.
14. First, in his letter dated 25^th February 2008 appealing against the decision of the initial disciplinary panel the Claimant's grounds were (a) that the decision to find the misconduct proved was perverse; (b) that the decision to dismiss was "excessively harsh" (sc. even on the basis that the charges against him had been accepted in full); and (c) that another employee, referred to as JW, had been found guilty of similar but more serious misconduct – namely conducting a full sexual relationship with a patient – but had only received a final written warning. Neither of the latter two points could be affected in any way by the appeal outcome letter.
15. Secondly, in the same letter the Claimant expressed in terms his intention to "pursue each and every aspect listed above" – i.e. the grounds identified – in the employment tribunal if necessary.
16. Thirdly, Ms McCafferty referred to the terms of the ET 1 as eventually presented. Para. 5.1, which sets out the grounds for the claim, reads as follows:

I believe I have been unfairly dismissed. A patient whom our team was providing care for made 5 allegations against me. The matter was investigated following which a Disciplinary Hearing was held. It was decided that I was guilty of all 5 charges.

I appealed against the decision for the following reasons:

I felt the decision was inappropriate, due to the evidence. There was evidence of only one charge, and this was limited (I.e. the entirety of the charge could not be proved).

The decision showed bias and unfairness. I was not asked any questions by the Panel about 3 of the charges. They assumed guilt.

The decision was inconsistent. I cited a similar case, in fact more serious, where the employee received a Final Written Warning.

I also claimed that the Investigation was not complete or thorough.

The dismissing officer was my manager's manager and therefore not independent. It should have been referred an independent officer.

The Appeal was held on 21^st April and 19^th May 2008. They found 4 of the 5 charges not proved. They maintained 1 charge (which was not the charge for which the Disciplinary Panel had limited evidence).

The Appeal Panel maintained that the "… summary dismissal was the appropriate course of action and within the band of reasonable responses for an employer."

I do not accept that this was reasonable. The single charge was not sufficient to warrant dismissal. The panel heard from me that procedures had been conducted improperly throughout the Disciplinary Hearing and Processes. They acquired some additional evidence between the two appeal dates as the original Investigation had failed to do this. However, much evidence was still not obtained, and what was obtained was selective, in that it was evidence against me.

However, the Appeal still chose to find 4 charges not proven.

My standpoint is that:

1. The Appeal Panel should have lessened the sanction to reflect the unproven charges and state of the evidence;

2. The Appeal Panel should have acquired all the evidence that was not collected during the Investigation and not considered at the Disciplinary, not "selective" evidence;

3. The Appeal Panel should (as in 2. above) have recognised that fundamental procedural omissions and inconsistencies existed regarding the Investigation and Disciplinary processes and awarded compensation and/or salary for the interim period between 21^st February and 19^th May;

4. The Appeal should have taken into account that I wanted a resolution to this issue. I stated that I was prepared to work in a different area and location to where I was previously based and accepted that some restrictions and/or supervision may have been appropriate. They did not entertain this as a feasible possibility.

Ms McCafferty submitted that the Claimant appeared still to be relying on matters which had already been raised by him and on which the appeal outcome letter added nothing – e.g. the inconsistency with the treatment of JW.

17. Fourthly, in a letter to this Tribunal dated 3^rd March 2009, which he asked to have treated as his skeleton argument, the Claimant emphasised that there were "several aspects of my claim for unfair dismissal", including the inconsistency point.
18. Fifthly, in a letter to the Trust's solicitors dated 14^th March 2009 the Claimant described his case as "virtually unassailable" but did not rely on any aspect of the decision of the appeal panel.
19. Overall, Ms McCafferty submitted that that material showed that the appeal outcome letter could not reasonably be regarded as fundamental to the Claimant's case; and the Judge could not properly have accepted his protestations that its receipt meant that "that which appeared to be hopeless now had a hope". In particular, the Judge carried out no analysis of the matters pleaded in the ET1 with a view to identifying what any new facts appearing from the appeal outcome letter amounted to, or whether they were indeed "crucial".
20. Persuasively as they were advanced, I do not accept those submissions. The starting-point must be to identify the "heads" of the claim pleaded in the ET 1: what the Claimant has said in correspondence or submissions may be relevant to the issue of "changed belief", but it is immaterial in defining his actual claim. Although the grounds quoted at para. 16 above were evidently drafted by the Claimant without legal assistance, it is – I think – reasonably clear what points he wished to make. Two heads of claim can clearly be identified:

(a) that since the Appeal Panel had found the Claimant guilty only on a single charge, dismissal was not a reasonable sanction: this is point 1 under "my standpoint"; and

(b) that (sc. as regards that single charge) the deficiencies in the investigation rendered the finding of guilt unfair because it did not produce all the relevant evidence: this is essentially points 2 and 3 (though the claim for unpaid wages has crept in to part of point 3).

I note that, as point 4 under "my standpoint", the Claimant contends that the Appeal Panel failed to consider alternatives to dismissal; but I regard that as a factor going (potentially) to whether dismissal was a reasonable sanction, i.e. to "head (a)".

21. I also note that in the earlier part of the grounds the Claimant sets out the complaints which he made at the original disciplinary hearing, including in particular the claim that his punishment was inconsistent with that accorded to JW. It is not entirely clear whether that is still being advanced as a ground of complaint. For present purposes I will assume that it is, in which case it would I think be correctly analysed as a distinct head of unfairness – "head (c)".
22. I will, as required by Marley, consider those heads in turn.
23. As regards (a), the Claimant could not have known that he had only been found guilty on a single charge until he received the appeal outcome letter: see para. 3 (5) above. That fact was plainly an essential element of this head of his claim. The Judge's finding that the Claimant genuinely believed it to render viable a previously non-viable claim – para. 3 (7) above - is a finding of fact which is unassailable. There remains the question whether that change in his belief was reasonable. The Judge – not having had the authorities cited to him - did not expressly address that question. I strongly suspect that if he had thought the Claimant's change of belief positively unreasonable he would have said so; but it is perhaps unsatisfactory to have to guess in a matter of this importance. There is, however, no reason why I should not make my own assessment. I am in as good a position to do so as the Judge, and both parties have indicated that if I found any misdirection on his part they would rather I decided the issue rather than direct a remission. In my view the Claimant's assessment following the oral announcement of the Panel's decision – i.e. "hopelessness" – was certainly reasonable. An argument that dismissal was an excessive sanction if the full charges had been proved would – to put it no higher – have faced formidable obstacles. The fact that the Claimant had asserted otherwise at an earlier stage (see paras. 14 and 15 above) does not mean that those assertions were reasonable. The less straightforward question is whether it was reasonable for him to regard the terms of the appeal outcome letter as making a fundamental difference. The Claimant's "acquittal" on four of the five charges is in somewhat qualified terms, and the finding on the remaining charge is still apparently serious. But it is not appropriate on a threshold issue of this kind to form any definitive view on the substantive issues in the claim, at least unless the position is clear – cf., though the point is not quite the same, para. 11 (4) above. The only question is whether the Claimant's belief was reasonable, not whether it was right. In my view it was.
24. As regards (b), it is less obvious why the discovery that he had been found unequivocally guilty only on one of the five charges should have transformed the Claimant's thinking on the inadequacies of the investigation and the resulting evidence: those alleged inadequacies were already known to him, and nothing had changed. But it is not quite as straightforward as that. I do not regard it as unreasonable for the Claimant to have originally discounted his prospects on the basis that he had run these very points before the Panel but they had evidently wholly rejected them; whereas the terms of the appeal outcome letter showed that they had in fact accepted them to some extent but – irrationally, as he would argue – had not accepted their full implications.
25. If there is indeed a further head of complaint based on the inconsistency between the Claimant's treatment and that of JW – see para. 21 above – I can, again, understand why the Claimant might have thought that point hopeless in the context of findings that he was fully guilty under all five charges but much more arguable in the light of the actual findings.
26. I therefore find that the Claimant's changed belief was not only genuine but reasonable and thus that the facts learned on 28^th May were "fundamental". It follows that the Judge was entitled to find that it had not been reasonably practicable for him to present the heads of claim pleaded until the receipt of the appeal outcome letter. The appeal is accordingly dismissed.
27. I am fortified in reaching this decision by the consideration that it would in my view have been harsh, in circumstances where it was entirely appropriate in the light of the 2004 Regulations for the Claimant to defer presenting a claim until the disposal of his appeal, for him to be held to be out of time when that left him with only 36 hours to present a claim within the primary time limit and when he in fact did so within ten days thereafter.