HIS HONOUR JUDGE SHANKS
Introduction
1.
This is an appeal by a Respondent against the ruling of the Employment
Judge given on 14 February 2012 that the Employment Tribunal had jurisdiction
to hear an unfair dismissal claim, notwithstanding that it was not presented
until eight months after her dismissal on 8 April 2011.
2.
The Claimant, who is the Respondent to this appeal, has been debarred
from taking any further part in it by an order of 18 July 2012 because she
failed to lodge an answer or comply with an unless order dated 10 July 2012.
Notwithstanding that she is debarred from taking any further part and that she
is not here, it is for the Appellant to persuade me that there is an error of
law in the Judge’s Judgment before I can allow their appeal.
The Judgment
3.
At the Pre-Hearing Review on 14 February 2012, the Employment Judge
heard evidence from the Claimant herself and was also shown a bundle of
documents by the Respondent. The Claimant was cross-examined by Ms Cowen, who
appears also on this appeal, and documents were put to her and submissions were
made, although I will come back to precisely at what point in the hearing they
were made later.
4.
The Judge recited the evidence he had heard and some of the arguments
and at paragraphs 21 and 22 of the Judgment he said this:
“21. Accordingly, I decide that it was not reasonably
practicable for her to submit a claim within a three-month period, by reason of
her mental health difficulties as evidenced to me both in writing and in her
oral testimony, and that the claim was submitted within a reasonable further
period.
22. Accordingly I permit the claim to proceed even though it is
out of time.”
5.
Ms Cowen appeals against that conclusion. It is fair to say that it is
rare for this Tribunal to interfere with such a conclusion, although it will do
so if the Employment Tribunal was manifestly wrong. So far as the law is
concerned, the words “reasonably practicable” have been considered many times
and it is established that they carry the same sense as the words “reasonably
feasible” and clear that factors that can make something not reasonably
practicable or feasible include illness and include mental illness.
6.
It is for the Tribunal to look at all the circumstances, decide what was
reasonably practicable and then decide what further period might be
reasonable. Its decision on those points is a decision of fact and unless the
wrong tests have been applied or the finding is perverse, this Tribunal is not
going to interfere.
7.
Ms Cowen has made it clear that she is not suggesting that the decision
was perverse on the facts but she relies on a number of points as to the
correct test. The Tribunal Judge set out the background in paragraph 3 of his
Judgment and he says:
“Time may only be extended if it was not reasonably practicable
for the claim to be presented in time and then the claim must be presented
within such further period as I consider reasonable.”
Ms Cowen accepts that that was the right test. A sentence on
from that, the Tribunal Judge says this:
“If it was reasonably practicable to put the claim in during
that period then I must dismiss the claim. If I decide it was not reasonably
practicable to put in the claim within that period, I will strike it out if not
submitted promptly as soon as it was possible to do so.”
In that passage it is right to say the Judge is applying the
wrong test: the test in relation to the further period is as he had put it two
sentences before, namely what period was reasonable. However, although he puts
it wrongly it is clear that he was proposing a more stringent test so far as
the Claimant was concerned than he should have, so if that is the test he has
applied it does not help the Respondent.
8.
The Judge then recites quite a lot of the evidence given by the Claimant
who was, as I say, cross-examined. He also refers to the medical evidence
which I have been shown, and then at paragraph 15 he says this:
“In our opening discussion, as in our concluding discussion, Ms
Cowen pointed out that the claimant was able to do all these things, so why,
she asked, was she not able also to file a claim?”
The things he is there referring to include managing to get
alternative accommodation, having lost her job, and managing to get her child
into a new school. The Judge goes on at paragraph 17:
“After listening very carefully to the claimant’s oral evidence,
which was compelling (as Miss Cowen agreed) and considering the matter very
carefully, I conclude that this claim is in time. The claimant became visibly
distressed at points during giving evidence. All employment judges are
accustomed to seeing claimants cry on occasion, and sometimes it is genuine and
sometimes it is not. This seemed to me entirely genuine. It is plain that the
recollection of these events still causes her great mental difficulty.”
He then refers to her mental state and says that in his view it
would undoubtedly qualify as a disability. And then at the end of paragraph 18
he says:
“Once the Claimant’s mental health was sufficiently stable to
permit her to cope with the additional burden of taking on this matter I think
that is precisely what she did.”
And then at paragraph 19:
“I considered carefully the point that she was able to cope with
a set of circumstances that might well have been overwhelming, but were not,
and that this necessarily means that she was also able to put in a claim. I do
not think it was reasonably practicable for her to do so, or just, to expect
that she could do so at any time before she actually did. Plainly the most
important thing to cope with is where you are going to live and look after your
children, and make sure the home at least has beds tables and chairs in it. If
someone’s mental health is considerably affected, as the claimant’s was, the
fact that she was able to devote attention to such essential tasks does not
seem to me to be consistent with saying that that is the reason why she should
be able to cope with even more. From her evidence she did remarkably well to
cope as well as she did. I did not think that means it was reasonably
practicable for her to do even more than that which she did. She did all that
she could in her life and her mental health was at maximum capacity to do it.
More was impossible for her.”
The grounds of appeal
9.
Ground 1 is that the Judge failed to follow the correct test having set
it out correctly. I have already referred to the test that the Judge set out
and to his application of it. If anything, as I have already said, the Judge
applied too stringent a test in relation to the second period that he had to
consider, namely the period after the three months had expired. So insofar as
he failed to follow the correct test, it was against the Claimant and that, in
my view, does not provide a basis for appealing.
10.
Ground 2 is that he used the wrong test in considering whether the
Claimant would qualify as having a disability. I have referred to the finding
by the Tribunal Judge that her condition would undoubtedly qualify as a
disability. It is not clear that he intends to refer to a technical disability
under the Disability Discrimination Act. If he did, it was not relevant
whether she was disabled in that sense, but it is clear from the whole tenor of
paragraph 18 that what the Judge is saying is that in his view, having heard
her evidence and seen some evidence from doctors, she was suffering from a very
serious mental problem which he would regard as a disability and that that made
it not reasonably practicable for her to put in the claim before she did. So,
whatever test he applied in relation to disability, it does not seem to me to
make any difference.
11.
Ground 3 is that he used the wrong test when he considered that the
appropriate time to file a claim was when she was sufficiently stable. As I
read out, and as I read out a number of times in the course of debate with Ms
Cowen, what the Judge said was not just that the Claimant was “sufficiently stable”,
but that she was sufficiently stable to permit her to cope with the additional
burden of presenting an Employment Tribunal claim. Seen in that context, it is
quite clear what the words “sufficiently stable” mean and it is quite clear
that the Judge has applied his rather too stringent test so far as the latter
period is concerned and the right test so far as the first three months is
concerned.
12.
Ground 4 is that in considering when in light of her mental health the
Claimant was able to cope with the Tribunal claim as well as her domestic
responsibilities, the Employment Judge (1) misapplied the test of reasonably
practicable and/or (2) came to a conclusion on the Claimant’s mental health
which was not supported by the medical evidence available. So far as ground 4(1)
is concerned, I do not see that that adds anything to the other grounds. So
far as the medical evidence is concerned, I was shown it and it was at that point
in the argument that I became most convinced that what I was dealing with was
an attempt to appeal on points of fact. I am not going to go back over the
medical evidence; insofar as it did not entirely support the Judge’s findings
about the Claimant’s mental health, there was, as I pointed out, evidence
directly from the Claimant which was tested in cross-examination and which
persuaded the Judge to reach certain conclusions. The Claimant was capable of
giving evidence about her mental state; the Judge was capable of assessing it
and coming to a view it. The view he reached about it was within his purview as
the finder of fact. Whatever the decision might be, unless it was perverse, it
is not one that can be challenged by an appeal to the Employment Appeal
Tribunal. So that is all I say about that.
13.
Ground 5 is that the Employment Judge erred in taking into account the
Claimant’s reaction to other proceedings against her when considering whether
it was reasonably practicable to file her ET claim. The other proceedings were
proceedings to prevent her carrying on her profession to which she did not
respond at all because she told the Tribunal she just was not in a fit state to
do so. It seems to me that that was something that the Employment Judge was
perfectly entitled to bring into account in assessing both her mental state and
her capabilities and it was something that he was entitled to look to when he
decided that she was not capable of putting in an Employment Tribunal claim,
and I fail to understand what the ground of appeal really amounts to.
14.
Ground 6 was that the Employment Judge erred (1) by not giving judgment
as to the date on which it was first “possible to do so” (i.e. file the ET1)
and (2) failed to give reasons as to why he considered this was the first
reasonable and practicable opportunity to do so. I am slightly puzzled by
that. He did give judgment about the date when it was first possible for her
to make a claim and he did give reasons. The date when he considered that it
was first possible for her to make a claim was the date when she did so on his
finding. As I have said a number of times, that was a more stringent test than
he needed to apply but nevertheless, however surprising, it was his finding
that she was not capable of presenting it until she in fact did.
Other points
15.
Those are the grounds of appeal. I should mention two points that have
concerned me a little bit. One is that in paragraph 19 the Judge said in a
sentence I have already read:
“I do not think that it was reasonably practicable for her to do
so, or just, to expect that she could do so at any time before she actually
did.”
I was concerned about the words “or just” which indicate that the
Judge might have been applying the wrong test. Justice and equity are not the
test in the context of extensions of time in unfair dismissal claims. However,
he applies really two tests in that sentence, one is the excessively stringent
one that I have already mentioned, the other is an insufficiently stringent
one, namely justice; but in the context of the whole Judgment and a number of
other statements which he makes, in particular the final five words of
paragraph 19 of the Judgment which say “More was impossible for her” it seems
to me clear that the words “or just” were really excess verbiage and do not
indicate that the Judge actually went wrong in that respect.
16.
The point that concerned me more, and seemed to me was potentially one
of real substance, was that the Judge at the end of the Claimant’s evidence
immediately said:
“I will give a full written decision, not just a synopsis. When
I read the papers I initially thought that this hearing would last ten minutes.”
And I interpose to say it is clear that the Judge thought that
the hearing would go against the Claimant and then he went on:
“However, the Claimant’s evidence is compelling and so I am
going to allow the claim to continue.”
At that point Ms Cowen, no doubt rather surprised and taken aback,
said to the Judge: “Sir, I have not yet had the opportunity to make my
submissions on the Respondent’s case” to which the Judge said “You can
certainly try and persuade otherwise. You are welcome to try and change my
mind but do you not agree Claimant’s witness evidence was compelling?” and Ms
Cowen agreed that her story was compelling, and then the Judge said, “Looking
at the papers, it looked like the Claimant would have a real uphill struggle to
convince me to allow her claim to continue as there was no evidence about debilitation
and she was also walking six miles” and then he talks further about her
evidence. And then he asks Ms Cowen, “Have I got any point of this analysis
wrong?” and Ms Cowen was able, by way really of a question and answer session
perhaps, rather like the one that we have had, to make her points.
17.
But what she said today in the course of the appeal was it was all very
well to be able to make her points but because the Judge had already indicated
in front of the Claimant, who was a litigant in person who had just given her
evidence, that he was going to allow her claim to proceed, nothing that she, Ms
Cowen, said was going to make any difference because the Judge had already “boxed
himself into a corner”.
18.
I was concerned about that point but it seems to me that, as I initially
said, Judges are entitled to make comments about what they are thinking at a
particular point in the story, they are allowed to make comments about people’s
evidence and to say it is compelling and so on, and they should not be
discouraged from doing that, provided the Judge then corrected his error by
hearing Ms Cowen and taking her points on board and dealing with them. I think
one has to trust the Judge to do that exercise conscientiously and one cannot
assume that for fear of letting down a litigant in person after a few minutes
or even half an hour, that he is not robust enough to go back on an indication.
19.
Looking at the Judgment, and in particular paragraphs 15, 18 and 19, it
is perfectly clear that the Judge took account of Ms Cowen’s submissions, dealt
with them and gave reasons why he did not accept them and I am satisfied that
that as a discrete ground does not succeed either.
Conclusion
20.
So, perhaps surprisingly, again the Claimant seems to have succeeded
even though she was not here on this occasion because she told the Tribunal
that she was, and I quote her email: “Physically, emotionally and mentally
unable to attend the hearing today” and that due to her mental health
and lack of legal support she said she was unable to pursue the case. Notwithstanding
that, as I say, she has succeeded on this appeal which I dismiss. It may be
that the case does not go to a full hearing in the Employment Tribunal because
of what the Claimant has said in the email that I have just quoted, but that is
for another day.
