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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Little v Richmond Pharmacology Ltd (Jurisdictional Points : Claim in time and effective date of termination) [2011] UKEAT 0262_11_2110 (21 October 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0262_11_2110.html
Cite as: [2011] UKEAT 262_11_2110, [2011] UKEAT 0262_11_2110
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
RICHMOND PHARMACOLOGY LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Instructed by: Lambeth Law Centre Unit 4 The Co-op Centre 11 Mowll Street London SW9 6BG
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(of Counsel) Instructed by: Edwin Coe LLP Solicitors 2 Stone Buildings Lincoln’s Inn London WC2A 3TH |
SUMMARY
JURISDICTIONAL POINTS – Claim in time and effective date of termination
More than three weeks after the employer decided against the Claimant’s request for flexible working, she resigned in writing with immediate effect on 19 July, claiming constructive dismissal. The employer invited her in to discuss it and she affirmed in writing her previous letter. A claims management body sent a letter before action on her behalf. It and the Claimant mistook the EDT, thinking it was 31 July or 1 August. The Employment Judge permissibly held it was reasonably practicable to present the claim in time, even if the claims management body did not have the right to represent her and told her to present the claim herself. The Judgment would be sent to the Regulator.
There was no challenge to the Judge’s finding that it was just to extend time for the Sex Discrimination Act 1975 claim which now proceeds.
HIS HONOUR JUDGE McMULLEN QC
Introduction
1. This case is about the late filing of a claim to an Employment Tribunal. I will refer to the parties as the Claimant and the Respondent. It is an appeal by the Claimant in those proceedings against the Judgment of Employment Judge Cheetham sitting alone at a PHR at London South on 25 January 2011, for Reasons sent in writing on 18 March 2011. As here, the Claimant is represented by Ms Omeri and the Respondent by Mr Davies, both of counsel.
2. The Claimant has claims for unfair dismissal and sex discrimination. The Respondent replies to both of those substantively and procedurally. In respect of the claim for unfair dismissal the Judge held that this was out of time and would not exercise discretion; on the other hand, as to sex discrimination the Judge did exercise discretion under the completely separate statutory regime, and no point arises about that from either party. The Claimant, however, appeals against the out‑of‑time finding on unfair dismissal. The matter was sent by HHJ David Richardson to a full hearing, he reflecting on two points that were reasonably arguable; that is, the effective date of termination from which the clock starts to run, and the effect of the escape clause where the primary time limit has expired.
The legislation
3. The relevant legislation is the Employment Rights Act 1996 in the following sections:
“94 The right
(1) An employee has the right not to be unfairly dismissed by his employer.
95 Circumstances in which an employee is dismissed
(1) For the purposes of this Part an employee is dismissed by his employer if […]
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. […]
97 Effective date of termination
(1) ... “the effective date of termination”—
(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by 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, and
(c) […]
111 Complaints to employment tribunal
(2) ... 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 facts
4. The Claimant was employed by the Respondent for a period of time during which she had maternity leave. The relationship went through some difficulties. She was first employed on 8 March 2006 as a receptionist and then, after a number of promotions, as a sales executive. They disagreed about the way in which maternity leave should be managed. Following disagreement, dismissal and reinstatement, the Claimant continued her employment, albeit on maternity leave, bringing us to the relevant dates in this case, which began with the Claimant contending that she had been unfairly dealt with in the arrangements for her return to work. A request for flexible working was refused in June 2010. It is common ground that that was communicated to her in writing on 25 June 2010 or thereabouts.
5. Almost a month later on 19 July 2010 the Claimant requested reasons for the refusal, but then resigned without having had a response. The terms of the resignation letter are important and have informed the earlier decisions in this case. By email from her personal email account at home she said, “Please find attached a copy of my letter of resignation.” This letter, sent to Charlotte Gowling, contained this:
“I am writing to resign my position of Sales Executive with immediate effect, as I believe that the working relationship between Richmond Pharmacology and me has been severely damaged following my dismissal, appeal and reinstatement during my maternity leave. I do not feel that I have been treated as fairly as I was before my pregnancy, and therefore the relationship of trust and confidence I once placed in Richmond Pharmacology Ltd has now been broken.
I believe my resignation to be constructive dismissal because:
[…] it has become quite obvious that I am not welcomed as a valued employee anymore. I have had unlawful deductions made from my pay and my holiday pay has not been made, I have been sexually discriminated against, subsequently I have been constructively dismissed resulting in an inordinate amount of stress and uncertainty regarding my future. My consultants will be in touch with you shortly.”
6. That provoked an immediate response from Ms Queensborough, who expressed her dismay, and said this:
“I urge you to reconsider your position until after you have had a meeting with myself and Keith Berelowitz. I would like to arrange this meeting for this week. Could you therefore please provide me with some suitable dates and times so I can set this meeting up.”
7. A meeting was duly arranged on 22 July 2010, but by 26 July the Claimant had again become impatient, and she said this:
“Following our meeting of 22 July 2010, I have been waiting for the promised confirmation of our discussion. As explained to me, I can appreciate that you have 151 staff that you have to give equal time to, therefore below I have summarised the meeting. […]
Our meeting has not addressed the main point of my resignation letter, that I believe that the relationship between Richmond Pharmacology and me has been severely damaged following my dismissal, appeal and reinstatement during my maternity leave. I do not feel that I have been treated as fairly as I was before my pregnancy, and therefore the relationship of trust and confidence I once placed in Richmond Pharmacology Ltd has now been broken. Charlotte’s absence from our meeting spoke volumes, and as I mentioned in our meeting, I would find it hard to work in an unacceptable atmosphere in a job where I am expected to build relationships with colleagues and clients, when the relationship between my line manager and me has broken down completely. I believe that her offer for me to resign is proof of this.
Therefore, my resignation of 19 July 2010 still stands.”
8. That was under cover of an email at home from the same personal account, it being recalled that the Claimant was on maternity leave at the time, saying, “Please find attached a letter of confirmation of my resignation.” This time the Director of Operations of the Respondent, Mr Berelowitz, replied on 26 July 2010, and said this:
“During our meeting on 22 July 2010 we discussed your flexible working application and the offer of a Telesales role that Charlotte Gowling put forward to you on 28 June 2010, you confirmed that you were not happy with this offer and would not accept it.
As a means of bringing about a solution that would suit both yourself and Richmond Pharmacology I provided you with a counter offer to return to your current role of Sales Executive with the existing terms and conditions remaining the same, however on a part-time basis, (thus with a pro rata salary). I suggested we trial this proposal on a 3 month basis and then review the situation after 3 months. You stated that you would consider this and your letter dated 26 July states that you do not want to pursue this route of action. As such we will accept your resignation however we wish to determine if you wish this to be with immediate effect of if you wish to return to work to serve out your notice period. Please can you advise Chanel Queensborough of your decision re your notice period by Thursday 29 July 2010.”
9. There were then some further reflections on the number of days for which she would be paid, and as part of that was an offer to compensate her for certain periods of holiday. It is now common ground that she was to be paid for 27 days, which would take her up to 19 July 2010; and then, the following paragraph:
“Once we have received confirmation of your decision to serve out your notice period or terminate your employment with Richmond Pharmacology with immediate effect, we can effect this action.”
10. The Claimant’s response was to cause a letter to be written by an organisation called Tribunal Action. She tells me that she found this on the internet. Its strapline is “Quick, simple and affordable”; it operates out of Bridgend. It has a number of registrations, but notable, in my view, is the absence of a registration number under the Compensation Act, for as an organisation involved in making claims for persons it is required to be regulated, unless exempt, by the Claims Management Regulator, which is the Ministry of Justice. Tribunal Action, describing itself and signing itself as “Employment law consultants”, wrote to the Respondent on 28 July 2010 including the following:
“We are writing to you on behalf of your former employee Mrs Carolyn Little who has outlined circumstances to us which amount to constructive dismissal, discrimination on the grounds of sex and the unlawful deduction of wages.
Mrs Little has informed us that her working relationship with your organisation was severely damaged as a result of your actions and that she was simply left with no option but to terminate her employment with your organisation as a result.
[…]
Following Mrs Little’s resignation on 19 July 2010, she attended a meeting with Keith Berelowitz, the Operations Director, who said that he would over ride her line manager’s rejection of her application for flexible working hours, and would reinstate Mrs Little in her previous job role and previous salary for her requested hours on a 1 months trial period. However he expressed doubts that this would work. Mrs Little’s holiday entitlement was confirmed. She had previously been told she had accrued 17.5 days holiday, however the correct figure was 25 days holiday. Confirmation that an adjustment for 2 weeks of Statutory Maternity Pay that had not been paid would be made, but an explanation of why these illegal deductions were made was not given.
Mrs Little feels that the meeting and the assurances and trial arrangement offered were a direct reaction to her resignation letter, and that the underlying problem that the relationship of trust between both parties had broken down. Mrs Little’s line manager did not attend this meeting, and therefore Mrs Little is still left with no option but to terminate her employment with your company.
[…]
On behalf of Mrs Little we urge you to take the above information into consideration and contact Mrs Little direct and in writing within the next 7 days at [home address given].
After this period, Mrs Little will be submitting a claim to the employment tribunal in your area. Any desirable resolution of this matter will obviate the need to fully litigate the matter at the employment tribunal. This decision lies entirely with Mrs Little.”
11. The documentary sequence includes a P45 issued by the Respondent to the Claimant, indicating her leaving date as 31 July 2010.
12. On 1 August the Claimant again wrote from her mailbox:
“I would like to confirm as per my original letter, that my resignation is of immediate effect, as it would be too difficult to arrange childcare at such short notice throughout the school holidays.
...
Also another point, the counter-offer made after my resignation, was at the meeting offered on a 1 months trial basis, and Keith Berelowitz voiced concerns that this arrangement would not work. However in your letter it says that it was offered on a 3 months trial basis.
In light of all the mistakes that have been made, could you please confirm why I have been paid 1 days holiday in lieu of 2 weeks of SMP.
My consultants should have been in contact with you and therefore I look forward to hearing from you soon.”
13. The documentary sequence as disclosed by the Claimant resumes on 1 August 2010 in correspondence sent by an organisation now calling itself Tribunal Action/Online, which seems to me to be indistinguishable from Tribunal Action and Tribunal Online. The Claimant at all times thought she was being assisted by Tribunal Action. This email says the following:
“We have noted that we are currently waiting for you to provide us with essential documents required for us to complete a no win no fee review.
As it is essential that we are provided with copies of all documents relating to your case in order to complete our review of your case, we must insist that you provided us with copies of these documents within the next 7 days.
Please ensure that you send us both your ET1 and ET3 forms, along with any witness statements and any documents that have been disclosed by the respondents if available.
As we are obliged to either accept or reject your case, if we are not in receipt of these documents before the (insert date) we will be left with no option but to reject your case.
Yours sincerely,
Tribunal Action/Online.”
14. On 5 August 2010 Ms Queensborough responded to the letter from Tribunal Action. It dealt with a number of matters to do with payments and indicated that payment was made to the Claimant on 30 July 2010 as a matter of goodwill, dealing with periods of extra days and holidays. Then there is this:
“As per your request your working relationship with Richmond Pharmacology was ended on 31 July 2010.”
15. The Claimant indicated that she had discussions in October with an officer of Tribunal Action and paid what is described as an additional £200 to Tribunal Action. She then recorded the advice that she was given. She said:
“I was advised that an ET1 would be drafted by a law consultant and emailed for my review.
In view of the tight deadline (caused by Tribunal Action’s lack of response) I am becoming increasingly concerned.
Could you please get somebody, preferably Angharrad to call me to advise me of what action is being taken.”
16. She was told on 12 October that, “Your documents have been drafted and uploaded […].” She was told to go to a website and tick a box marked “Approve” or “Disapprove”, and it then said, “[…] if there is anything that I can do to answer any queries you may have, please do not hesitate to contact me.” This was signed by Jennifer at Tribunal Action. The Claimant responded on 19 October, if not before then. Much of this is redacted; the Claimant has not disclosed it to the Respondent or to the Employment Tribunal. It does not appear that privilege is an issue in this case, since it is not asserted Tribunal Action is a legal adviser or has legal advisers on the staff, which would bring it within scope of legal professional privilege or litigation privilege. She says this:
“Many thanks for sending through the ET1 however there are a few amendments to be made […].
I would be grateful if the following can be added to my ET1 form. As always I am ever conscious of the deadline and will expect a call from yourself or one of the team to advise of the progress of my claim.”
17. The same day, Tribunal Online, as it is now called by this email, responded in the following way:
“Further to your recent purchase of our Specialist Consultant Solution Package we are pleased to attach your documents for you. Please find attached your completed ET1 FORM which has been reviewed by our Employment Law Consultants and can be submitted to your local tribunal office.
Your local tribunal office has been located by our support team and we enclose the relevant tribunal e-mail address:- londonsouthet@tribunals.gsi.gov.uk
PLEASE NOTE IT IS YOUR RESPONSIBILITY TO ENSURE THE ET1 FORM IS SENT TO THE TRIBUNAL OFFICE.
Our Employment Law Consultants have reviewed your case and submitted your notification of complaint letter to your employer.
Thank you for contacting us, and we wish you all the best for your forthcoming claim. […]
Kindest Regards,
natalie may
Tribunal Online.”
18. There was further correspondence. The Claimant made her own presentation to the Tribunal on 28 October.
The finding on the dates
19. Of those various dates that are candidates for the effective date of termination, the Employment Judge found it was 19 July; the Claimant’s contention today is that it was 31 July or 1 August. The threshold is important because the claim in this case was presented on 28 October 2010, so that if either of the Claimant’s dates is correct, she is in time; if the finding by the Judge is correct, then she is out of time and discretion would need to be considered if reasonable practicability were found in the Claimant’s favour.
20. The Judge decided it was 19 July pursuant to the Claimant’s express assertion in her letter. The Judge addressed himself to the relevant authorities, which are set out in paragraphs 20‑30, and said this:
“31. The first question to answer is: what was the effective date of termination? The difficulty that the Claimant faces is that she unequivocally resigned on 19 July 2010 with immediate effect. As the innocent party facing a repudiatory breach by her employer, the Claimant could either affirm the contract by continuing to work or she could accept the repudiation and bring it to an end. She chose the latter by resigning. Therefore, there was nothing for the employer to ‘accept’. Whatever dates anyone suggested later in correspondence and however they characterised their understanding of the Claimant’s termination of employment, the Claimant’s employment ended on 19 July 2010 when she resigned with immediate effect.
[…]
34. If 19 July 2010 was the effective date of termination, the claim should have been brought by 18 October 2010, so the next question is whether the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Primarily, in addressing this question, the Claimant placed the blame on her advisers’ alleged negligence, although she also referred to difficulties within her personal life.”
21. The Judge formed his view as follows:
“13. The Claimant told the Tribunal that she was then advised by Tribunal Action that she had until 30 October 2010 to submit her claim to the employment tribunal (based upon an effective date of termination of 31 July 2010). In other words, Tribunal Action had apparently revised its view of the effective date of termination. The Claimant telephoned them in October, because she was waiting for documents. She had had a conversation in mid‑August, but then heard nothing more. She received a draft ET1 form from Tribunal Action on 12 October, but she said that Tribunal Action ‘couldn’t get it right’. She submitted the form herself.
14. The Claimant told the Tribunal that Tribunal Action was a disreputable company that had given her bad advice. However, the Tribunal was unable to make a finding either as to that company’s competence or the standard of any advice. It is clear only that the initial advice (whatever that was) was given with the Claimant’s imminent resignation on 19 July in mind, but that for some reason Tribunal Action changed its view as to the effective date of termination.
15. As to the period between July and October 2010, the Claimant said that her daughter had been ill, which meant that her sleep was constantly broken. Relations with her husband were strained, as he had left the marital home in January 2010. However, he had been banned from visiting the home after an altercation with a neighbour. The Tribunal found it likely that the events in the Claimant’s private life were not only distressing, but distracted her from dealing with other matters.”
22. And he gave his conclusion as follows:
“36. It is difficult for Ms Omari to argue that Tribunal Action were not skilled advisers but that, in the alternative, the Claimant retained responsibility for presenting her claim and did so in circumstances where she had been misinformed by Tribunal Action as to the time to lodge a claim. That argument presupposes that they were skilled advisers upon whose advice she might rely. Furthermore, unlike in [Royal Bank of Scotland v] Theobald, Tribunal Action were closely involved in the preparation and presentation of the claim, even though the Claimant was responsible for the actual submission of the claim. In Theobald, the CAB simply gave advice.
37. Therefore, if Tribunal Action were negligent (which is not proved either way), then the Claimant is fixed with their negligence. If Tribunal Action were wrong and/or negligent, they should have known better. However, it is not that factor alone that defeats the Claimant’s contention that it was not reasonably practicable to bring her claim in time.
38. As to the Claimant’s personal life - which was the second reason advanced - although those problems probably made the Claimant more reliant upon her advisers, they did not make it impracticable to bring the complaint in time. The Tribunal considered Schultz [v Esso Petroleum Co Ltd [1999] ICR 1202], but decided that, while it is appropriate to take into consideration the Claimant’s daughter’s illness and her difficult personal circumstances, that factor on its own or in combination with the circumstances as a whole was also insufficient to establish that for the entire three month period it was not reasonably practicable to bring a claim that had been envisaged from the outset.”
23. He then turned to the sex discrimination claim, correctly distinguishing the two regimes and found in favour of the Claimant that it was just and equitable to enlarge time in the circumstances that the demand on the Claimant’s time during the short delay was distracting.
Arguments and conclusions
24. I will take the arguments of the parties in the same way in which they have been presented to me. The first question is the effective date of termination. The proposition advanced is that there was a contractual rearrangement of the straightforward date of resignation in the circumstances set out by the Judge. Ms Omeri, in a careful argument, accepts that on the face of it the resignation on 19 July means what it says. She accepts that the Claimant did not advance one of the exceptional grounds for treating the words as meaning other than what they say - following an altercation, for example, and uttered in haste. The latest date the Claimant received what might be described as unfavourable treatment was towards the end of June and from the comfort of her own PC she wrote a letter some three weeks later. Ms Omeri rightly does not push the point that the Claimant acted in haste. The Claimant is a person who is to be taken as meaning what she says by her written words.
25. What, however, Ms Omeri relies on is some form of suspension by the Claimant of the effect of that resignation in the light of the Respondent’s invitation to the Claimant to come to a meeting. There are difficulties with that, as Mr Davies points out. This being a claim of constructive dismissal, if the Claimant decided to walk out on 19 July, relying upon the June repudiation and accepting it, then her fate was sealed on that day. The focus of the ongoing unfair dismissal claim would therefore be whether there was a repudiation of the essential terms of the contract by that date. On this analysis of the Claimant’s case by Ms Omeri, somehow or other the contract becomes live again, at least sufficient to take her to a meeting where she continues to be an employee and to argue for different conditions to be applied to her.
26. I do not see the logic of that argument. I can see some sense, in that parties ought not to be treated as burning their boats, and it is wise in certain cases to allow a certain cooling‑off period to allow for reflection. Albeit there is no contention by the Claimant that she acted in haste, a further period of reflection does seem to have been thought sensible by both of the parties, so they met on 22 July. But the outcome known at the meeting itself was no change to the Claimant’s satisfaction. So she again articulated her view of the position by her email of 26 July. In my judgment this is unequivocal reaffirmation of the position that she had expressed in equally clear terms on 19 July. There is no suggestion that there is to be a different date from 19 July. Humane treatment of the issue by the Respondent and the co‑operation of the Claimant did not change the legal relationship which had obtained on 19 July, and the Claimant’s resignation stood.
27. The point about this analysis is that the EDT is a statutory construct and cannot be effected by the examination of the contractual and functional relationship of the parties, because then the date would differ. In Fitzgerald v University of Kent at Canterbury [2004] ICR 737 CA at 744, paragraph 20, Sedley LJ said the following:
“20. That answer in my judgment is that the effective date of termination is a statutory construct which depends on what has happened between the parties over time and not on what they may agree to treat as having happened. This was in fact the approach adopted by the EAT, again with [HHJ] Peter Clark presiding, in Caines v Hamon‑Lummus Ltd (unreported, 11 January 1996). There the EAT upheld the industrial tribunal's view that, in ascertaining the starting date of a period of continuous employment under what was then the Employment Protection (Consolidation) Act 1978, only the statutory provisions (viz those now found in s.211 of the 1996 Act) were admissible. In my judgment the same is true of the other elements of the statutory computation of time.
21. This is not for a moment to say that for purposes outside the statute the parties are not free to make binding agreements of this kind. As Mr Davison has rightly accepted from the start, all kinds of contractual arrangement may legitimately be made for pension and other purposes which fix suitable dates that do not correspond with events. Even then, no doubt, the fiscal effect of fictitious arrangements may be open to challenge by the Inland Revenue; and so forth. We are not concerned, it should be noted, with a compromise of a genuine factual dispute about dates. We are concerned here with the impact of voluntary arrangements on the provisions of a statute which, it is worth recalling, bears the short title of the Employment Rights Act.”
28. I accept the submission of Mr Davies that it cannot be right to leave this matter to the interpretation of the contractual relationship. What is in play here is illustrative. The Claimant contends that there was her acceptance of repudiation on 19 July; a constructive dismissal. She is at the moment facing a jurisdictional barrier to the presentation of that claim. If she is right that there has been a constructive dismissal, she does not have to give notice. She may give notice; either is consistent. On the other hand, if it is determined at trial that there was no repudiation, or no acceptance of it, then she herself is in breach, because she was required to give a period of notice. The question would then arise as to whether the Claimant repudiated the contract by refusing to present for work, as it were, and resigning without notice, or whether it was some lesser breach. In any of those circumstances the statutory construct of an effective date of termination would be susceptible to movement, and that cannot be right. This issue has to be determined, as it was presented in this case, as one of jurisdiction before the substantive facts are found. True it is that Sedley LJ deals with examining what happened between the parties, but that does not allow for the kind of expansion of the examination that is sought in this case.
29. The point was given full treatment recently by the Court of Appeal in CF Capital PLC v Willoughby [2011] EWCA Civ 1115, a Judgment given by Rimer LJ with which Laws and Hooper LJJ agreed. Rimer LJ’s conclusions on that contractual issue, which was not to do with the effective date of termination, was the following:
38. The essence of the 'special circumstances' exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a 'cooling off' period before acting upon it. Kilner Brown J, in paragraph 15 of his judgment in Martin[ v Yeoman Aggregates Ltd [1983] IRLR 49]’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place - that, in effect, his mind was not in tune with his words.”
30. With respect, the Judgment is a comprehensive review of all of the authorities in this jurisdiction in respect of the treatment of words of resignation, words of dismissal and so on, and it is apt in this case if resort has to be had to what are described as the exceptions. In my judgment there is no exception in this case based upon, for example, a cooling‑off period or altercations. If there is, the Respondent is to be given the benefit of that, since it invited the Claimant in for a meeting. In principle I would not say that a distinction is to be drawn as between an oral and written utterance; it is perfectly possible to come out of a meeting and immediately write a letter or send a text. But the point about writing a letter is that it takes time and consideration. It cannot possibly be relevant where the Claimant, at home all the time, waits three weeks before writing a letter and does so in measured terms, affirmed after a further meeting one week later. There is no reason not to hold the Claimant to the words she wrote.
31. The only rescue operation that can be mounted on her behalf is to criticise the approach of the Respondent. I reject the contention that the Respondent, by inviting the Claimant in, somehow waived the resignation that she had unequivocally given. Naturally management were hoping to resolve the matter in a way that would not involve litigation. Once Tribunal Action were brought in and wrote the letter before action the Respondent’s position, if in doubt, was clarified, for here it is asserted on the Claimant’s behalf that she did indeed resign as she said on 19 July. The next emanation from the Claimant, on 1 August 2010, is precisely to that effect. As a matter of construction I would hold that the words, “I would like to confirm as per my original letter that my resignation is of immediate effect,” means in accordance with her letter of 19 July the words “immediate effect” there used mean “19 July”, and she was again affirming it on 1 August.
32. Apart from that invitation to the meeting the only matter that might assist the Claimant is the admission by the Respondent about 31 July. First, it must be said that the Claimant does not rely upon that same date in the P45. What she does is to rely upon what is said to be a mutual agreement that the effective resignation on 19 July was to be moved back to 31 July. In my judgment that submission fails; there is no evidence of a request as to that date. The Claimant is asking for further monies, concessions are made as to her compensation for errors in maternity pay and holiday pay owing, but there is no evidence of any mutual agreement to substitute 31 July for 19 July. Thus the effective date of termination for the purposes of the statute was correctly determined by the Judge as 19 July 2010. It was not 31 July or 1 August.
Reasonable practicability
33. This finding, then, provokes the second question, as to whether it was reasonably practicable for the Claimant to bring the claim. In my judgment the Judge is correct in his approach to this matter. Two submissions are made on behalf of the Claimant. The first is to do with her family and personal circumstances; the second is to do with Tribunal Action. The Judge’s conclusion on this is sufficient without there being a detailed examination of the status of Tribunal Action (paragraphs 37 and 38, above). He had in mind the personal circumstances and Tribunal Action. The Judge also had in mind that the focus of attention needs to be towards the end of the limitation period (see Schultz v Esso [1999] ICR 1202 CA).
34. The Claimant’s case is that she was advised by Tribunal Action, and believed she had until 30 October to submit her claims. The problem for the Claimant is that the distinction between skilled and unskilled advisers is not one that assists her in this case. A full account of the legal developments in this jurisdiction was given by the President in Northamptonshire County Council v Entwhistle UKEAT/0540/09, indicating the circumstances in which there could be reliance upon a skilled adviser. The short point is that if you put your case in the hand of a solicitor, you are entitled to rely upon him or her. If they get it wrong, then you are fixed with that fault; but the underlying principle, as Mr Davies submits from Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, is that there may be some resort to a claim against the adviser. If the Claimant does not have an adviser and is on her own, then the question is a simple one of fact, as it is in all these cases: was it reasonably practicable for the Claimant herself to submit the claim in time? That requires a number of factors to be taken into account. Here, the Judge did not decide precisely on the status of Tribunal Action, and it is not for me to decide that either, but his finding is consistent with it being skilled for this limited purpose.
35. Ms Omeri, relying on material adduced from the website, indicates that it may be that Tribunal Action was not entitled under the claims management regulations to give advice or to do what it did in this case. Tribunal Action was, as she put it, disreputable and was wrong. There was a contract between the Claimant and Tribunal Action, so she may have some resort under that, but in my judgment the simple answer is that given by the Judge. He considered the personal factors, together with what reliance the Claimant placed on Tribunal Action, and concluded that it was still reasonably practicable for the Claimant to present her claim. That is a permissible option for him to have taken on the facts. Indeed, if one looks again at the letter from Tribunal Action on 1 October 2010, this indicates that the Claimant is to provide the ET1, the ET3 and various other documents. The Claimant was never in any doubt that she had to submit the claim form. She knew there was a deadline, but she thought it was three months from 31 July 2010, and she is wrong.
36. Let me give another example: suppose the Claimant had handed the claim to her mother to submit, and her mother had forgotten it. It could not be said it was not reasonably practicable. Suppose she received advice from a friend at the toddlers’ club that the time limit for submitting a claim is four months and not three months, and had waited until the end of the four‑month period. It could not be said that it was not reasonably practicable to submit the claim in time. Even on the Claimant’s case that she received advice from Tribunal Action that she says was irresponsible, she was herself alerted to deadlines and could have submitted the form at any time. As a matter of fact, the documentation indicates that the Claimant could have done that on 1 October, if not earlier.
37. I accept the submission that the Claimant has not done what is required of her, which is to show by open communication everything that she relied upon as taking her outside the bounds of reasonable practicability. It is not my position to form a view about the role of Tribunal Action beyond what has already been decided. The Judge had all the matters in front of him and he decided as a matter of fact that Tribunal Action’s role was not the sole reason why the Claimant did not submit the claim within time, or even within the very limited time towards the end of the three‑month period, and that is all that needs to be said.
38. I am, however, concerned about the criticisms made by the Claimant of Tribunal Action and of the material produced from the website indicating limitations placed by the Regulator on Tribunal Action’s role in Employment Tribunal cases. At the very least it seems that Tribunal Action assisted the Claimant in producing a form from the material adduced by the Claimant. As it expressly said, it acted on her behalf in its letter before action to the employer, and so in those circumstances it was taking on a role. If it is, as the Judge found for the purposes of this case, to be regarded in the narrow context of Employment Tribunals as skilled, then its mistake is fixed upon the Claimant. If it is not skilled, then it seems to me that all matters relevant to time were before the Judge, and my banal examples of handing the form to a family member or receiving advice from a friend would be apt. It would not displace the responsibility of the Claimant to show that it was not reasonably practicable for she herself to put the claim in.
Disposal
39. All is not lost for Ms Little, because her claim of sex discrimination lives on, and this will now be tried. The appeal is dismissed. In view of the criticisms made by the Claimant, and of the apparent inconsistency in Tribunal Action’s role, I direct that this Judgment be sent to the Claims Management Regulator.