Appeal No. UKEAT/0079/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
24 March 2011
Before
THE
HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)
JOHN LEWIS PARTNERSHIP APPELLANT
MR A P CHARMAN RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
JURISDICTIONAL POINTS – Extension of time: reasonably
practicable
Judge held that it was not reasonably practicable for Claimant to
present unfair dismissal claim because he was awaiting the outcome of an internal
appeal – Decision upheld – Bodha v Hampshire AHA and Palmer
v Southend-on-Sea Borough Council distinguished on the basis that those
were cases when the applicant was, or should have been, aware of the limits and
delayed claiming nevertheless, whereas in this case he was (reasonably) ignorant
of them
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
1.
The Claimant was summarily dismissed by the Appellant company on 13
March 2010. He launched an internal appeal. The appeal hearing took place on
24 May. On 28 June he was sent a letter dismissing the appeal. On 21 July he
presented a complaint to the Employment Tribunal. The primary time limit under
section 111 (2) (a) of the Employment Rights Act 1996 had expired on 12
June and the question accordingly fell for consideration whether the Tribunal
had jurisdiction to entertain the claim. It will be convenient at this point
to set out the terms of section 111 (2). They are (so far as material) as
follows:
“…[A]n 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.”
2.
At a hearing in the Watford Employment Tribunal on 13 December,
Employment Judge Ryan held (a) that it had not been reasonably practicable for
the Claimant to present a claim before the determination of his internal appeal
and (b) that he had presented his claim within a reasonable period thereafter.
He accordingly held that the Employment Tribunal had jurisdiction to entertain
the claim. His Reasons were sent to the parties on 14 January 2011.
3.
The Appellant appeals against that decision. It challenges both
elements in the Judge’s reasoning. It has been represented before me by Mr
Simon Forshaw of counsel. The Claimant has been represented by his father, Mr
Charman. Both representatives in their different ways have put their cases
very clearly and well.
4.
I take first element (a) in the Judge’s reasoning - that is, the issue
of reasonable practicability. The relevant findings of fact can be summarised
as follows. The Claimant was “young and inexperienced”: he was in fact aged
20. Prior to his dismissal he knew nothing about employment tribunals or any
right to claim for unfair dismissal. When he was dismissed he consulted his
parents and was thereafter in practice dependent on their advice. Mr Charman
senior did know in general terms that there was a right to bring a claim for
unfair dismissal to an industrial tribunal, as he believed they were still
called, but he was unaware of the time limits. The Judge treated the
Claimant’s state of mind and that of his father as for all practical purposes
interchangeable, and in the circumstances that was plainly a reasonable
approach. The Judge appears, at paragraphs 3 and 4 of the Reasons, to find
that the Claimant and his parents expressly considered at or around the time of
the original dismissal whether to explore legal recourse of some kind to an
“industrial tribunal” but that they made a positive decision to await the
outcome of the internal appeal. Mr Charman tells me that the way it has come
out in the Reasons is not quite right: the position was, rather, that it did
not even occur to them to explore going to law, despite his theoretical
awareness that that might be a possibility, until the appeal had been heard.
It is impossible for me to know whether the Judge has somewhat misrepresented
the evidence in the way he puts it in the paragraphs in question, but
fortunately the point is not central to any issue on the appeal.
5.
On the basis of his findings the Judge held that the Claimant’s
ignorance of the time limits rendered it impracticable for him to bring
proceedings in time. He did not expressly consider the question of whether
that ignorance was reasonable, but it can be inferred that he took the view
that it was reasonable for a lay person to defer investigating the possibility
of a recourse to law until the appeal process was concluded.
6.
Mr Forshaw argues that that reasoning, and the ultimate
decision, is contrary to a clear line of authority to which, surprisingly, the Judge
does not appear to have been referred by counsel (not, I should say, Mr Forshaw
himself). As long ago as 1973 the National Industrial Relations Court held
that it was “practicable” (the relevant regulation did not use the phrase
“reasonably practicable”) for an employee to commence proceedings for unfair
dismissal while an internal appeal was pending: see Singh v Post Office [1973] ICR 437. In Bodha v Hampshire Area Health Authority [1982] ICR 200 this Tribunal,
Browne-Wilkinson J presiding, followed Singh, holding that the introduction of the word
“reasonably” before “practicable” made no difference. Browne-Wilkinson J said
at page 205C:
“There may be cases where the special facts (additional to the
bare fact that there is an internal appeal pending) may persuade an Industrial
Tribunal, as a question of fact, that it was not reasonably practicable to
complain to the Industrial Tribunal within the time limit. But we do not think
that the mere fact of a pending internal appeal by itself is sufficient to
justify a finding of fact that it was not “reasonably practicable” to present a
complaint to the Industrial Tribunal.”
He expressly disapproved obiter dicta on the part of Kilner
Brown J in the earlier case of Crown Agents v Lawal
[1979] ICR 103 to the effect that:
“It would seem to us that in cases where a person is going
through a conciliation process, or is taking up a domestic appeal procedure,
whether it be on discipline or whether it be for medical reasons, that
commonsense would indicate that while he is going through something which
involves him and his employer directly, he should be able to say ‘it is not reasonably
practicable for me to lodge my application within the three months’.”
In Palmer v Southend on Sea BC
[1984] 1 WLR 1129 the Court of Appeal, in a case involving
essentially the same question though on rather unusual facts, was called upon
to decide whether Bodha
was rightly decided. May LJ, delivering the judgment of the court, reviewed
both the dicta of Kilner Brown J in Crown Agents v Lawal and the decision in Bodha and said in terms that he preferred the latter (see
pages 1140 to 1141).
7.
Mr Forshaw very properly drew my attention to two decisions which might
be said to point in a different direction. In Ashcroft v Haberdashers
Aske's Boys School [2008] ICR 613, Burton J, sitting in this Tribunal, held that the regime
introduced by Part 3 of the Employment Act 2002 had effectively rendered this line of authorities
obsolete: see in particular paragraph 21 at page 622. I agree with Mr Forshaw
that even if that reasoning was correct at the time - and it was in fact
controversial - its authority depended on the effect of the 2002 Act regime
which was of course abolished from 6 April 2009. I accept that the law has
accordingly reverted to what it was before. The other decision to
which Mr Forshaw referred me was Marks and Spencer Plc v Williams-Ryan [2005] ICR 1293, in which the Court of Appeal upheld
the decision of an employment tribunal that it had not been reasonably
practicable for the claimant to bring her claim in time in circumstances where
she was awaiting the outcome of a pending internal appeal. He contended that that
was a decision very much on its own facts and depended on the finding by the
tribunal, which the Court of Appeal held to be legitimate, that the employer
had given the claimant advice which had misled her into believing that she
could defer bringing tribunal proceedings before her internal appeal had been
disposed of: see in particular paragraphs 41 and 49 of the judgment of Lord
Phillips MR. I agree that that is a relevant distinction and that Williams-Ryan does not purport to disapprove or overrule Bodha or Palmer,
though I shall have to return to some other observations made in it.
8.
The ultimate question on this part of the appeal is whether the
decisions in Bodha and Palmer establish a
binding rule which applies to the particular facts of this case. However,
before I turn to this it will be useful to consider what the position should be
as a matter of principle, without specific reference to those decisions.
9.
The starting-point is that if an employee is reasonably ignorant of the
relevant time limits it cannot be said to be reasonably practicable for him to
comply with them. Brandon LJ said this in terms in Wall's Meat Co. Ltd
v Khan [1979] ICR 52,
at page 61, and the passage in question was explicitly endorsed by Lord
Phillips in Williams-Ryan: see paragraph 21 (page 1300 F-H). In
the present case the Claimant was unquestionably ignorant of the time limits,
whether one considers his own knowledge or that of himself and his father. The
question is whether that ignorance was reasonable. I accept that it would not
be reasonable if he ought reasonably to have made inquiries about how to bring
an employment tribunal claim, which would inevitably have put him on notice of
the time limits. The question thus comes down to whether the Claimant should
have made such inquiries immediately following his dismissal. As to that, I
think it is reasonable to infer, though I accept it is not explicit, that the Judge
formed the view that it was reasonable for the Claimant and his father not
to make such inquiries at the stage of the initial dismissal decision but to
await the outcome of the internal appeal.
10.
It has repeatedly been emphasised that the question of reasonable
practicability is a question of fact (subject to one point about the effect of
third party advice, which does not arise here - see Northamptonshire
County Council v Entwhistle [2010] IRLR 740); and it follows also that
decisions of a tribunal relating to that question will be correspondingly
difficult to challenge. In Marks and Spencer Lord Phillips said
in terms that the proposition that “the existence of an internal right of
appeal is of no relevance to the question of whether it is reasonably
practicable to make a timely complaint to the Employment Tribunal” is not a
principle of law but merely a “conclusion which will often be drawn when
considering … the vital question of fact, namely whether the employee could
reasonably be expected to be aware of the fact that there was a time limit for
making a complaint to the Employment Tribunal”: see paragraph 23 (page 1301E).
Lord Phillips also cited with approval, at paragraph 43 (page 1305 G-H) the
observation of May LJ in Palmer that “what is abundantly clear on
all the authorities is that the answer to the relevant question is
pre-eminently an issue of fact for the industrial tribunal and that it is
seldom that an appeal from its decision will lie”.
11.
On that basis the Judge’s finding of reasonableness, if (as I think) he
is to be held to have made one, is unassailable unless it is perverse. So far
from being perverse, I think that it was plainly right. There is an obvious
good sense in a party awaiting the outcome of an internal appeal before resorting
to legal proceedings. It is to be noted that the Judges applying the
reasonable practicability test in cases of this kind have often taken the
opportunity to question whether the result which they felt obliged to reach was
sensible: see per Sir John Brightman in Singh at pages
440-1, Sir Hugh Griffiths in McDonald v South Cambridgeshire Rural
District Council [1973] ICR 611, at page 615 E-F, and indeed
Browne-Wilkinson J himself in Bodha, at page 205 F-G. That being
so, I cannot see that, subject to the Bodha point, it was
unreasonable for the Claimant in the present case to defer investigating the
position about a possible employment tribunal claim until he knew the outcome
of the appeal. For the same reason, if I have been too charitable to the Judge
in holding that he implicitly made a finding of reasonableness, I would myself
in any event reach such a finding: Mr Forshaw sensibly accepted that if the Judge
misdirected himself the relevant issue could and should be determined by me.
12.
Against that background, I return to examine exactly what Bodha
did decide. As Mr Charman acutely pointed out, Bodha was not an
ignorance case at all. The applicant was throughout advised by a trade union
official, who was well aware of the three-month time limit but decided
nevertheless to defer issuing proceedings (see page 202 D-H); the general
observations on which Mr Forshaw relies must be understood in that light. In Palmer
too the applicants were being advised by a trade union. Although there is no express
finding there that the trade union was aware of the time limits, it probably
was, and plainly should have been; and on the so-called “skilled adviser”
approach the applicants would be treated as having had the relevant knowledge.
In both cases, therefore, the issue was whether the pursuit of an internal
appeal in itself made it not reasonably practicable to present a claim
in the industrial tribunal. It was not whether it was reasonable for
the applicants not to be aware of the time limits, which is the question on the
facts here. I do not therefore regard Bodha or Palmer
as requiring me to reach a different decision to that to which I would come on
the application of ordinary principles.
13.
I turn to element (b) - that is, the question whether the claim was
presented within a reasonable period following expiry of the primary time
limit. The logic of the Judge’s decision on the first question is that any
delay up to the delivery of the appeal decision was reasonable. The real
question is whether the Claimant acted with reasonable expedition thereafter.
The facts are as follows. The appeal letter was, as I have said, sent on 28
June, over a month after the appeal hearing. The Claimant had in the meantime
gone to Denmark on holiday. He had not made any arrangements for forwarding
his mail or asked his parents to open his letters in his absence. It was not
until a friend went out to Copenhagen to visit him in mid-July, taking his post
with him, that he learned of the dismissal of the appeal. He then spoke
promptly to his father who did the necessary research online and within a few
days - that is, on 21 July - presented a claim on his behalf.
14.
The Judge dealt with this issue in paragraph 10 of the Reasons as
follows:
“Could it have been presented then earlier than it was? The
point made then by Ms McLorinan on behalf of the Respondent is the claimant’s
family really should have put in place some mechanism for bringing the contents
of the letter to the family’s attention rather than just leaving it in a rack
waiting for it to be taken out or perhaps even waiting for Mr Charman Jnr to
return from Copenhagen where he had been holidaying for a month. They should
have done more. That has superficial attraction as an argument but the one
thing it omits is that whilst to a lawyer that may seem prudent, it is not
necessarily the logical or reasonable step if you consider that the principal person
concerned, namely Mr Charman Snr, was unaware of the time limit. Why, given
that it was not reasonably practicable for the complaint to be presented before
the outcome was known, would at that stage it be reasonably practicable or
reasonable to expect someone beyond that to go and look up time limits for
something that they did not consider they needed at this stage?”
15.
Mr Forshaw submits that the Judge misdirected himself by taking into
account the Claimant’s and his father’s ignorance of the time limits. I do not
agree: that ignorance was clearly a relevant consideration.
16.
Mr Forshaw submits in the alternative that the decision was perverse. Mr
Charman knew that the appeal decision should be arriving shortly and that he
would need to act promptly, if it was adverse, in order to make inquiries about
further legal recourse. It was not, he submits, reasonable in those
circumstances to go abroad without leaving arrangements in place to ensure that
he learned forthwith of the result of the appeal. But the Judge thought
otherwise. His decision might be thought to be somewhat on the generous side,
but I do not think that it could possibly be said to be perverse.
17.
Having, therefore, found against the Appellant on his challenge to both
elements in the Judge’s decision, I dismiss the appeal.
