SUMMARY
JURISDICTIONAL POINTS
Extension of time: reasonably practicable
Extension of time: just and equitable
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Tribunal erred in failing to have regard to the
issue of fault on the part of the Appellant. The Employment Tribunal erred in
failing to apply a sufficiently stringent test before deciding to strike out
the claim.
THE HONOURABLE MR
JUSTICE WILKIE
Introduction
1.
This is an appeal against decisions of the Employment Tribunal
dismissing claims made by the Appellant against the Respondent in respect of
her entitlement under the Respondent’s pension scheme. In the first decision
the Appellant’s claim under the Equal Pay Act in respect of membership
of the Respondent’s pension scheme during the period 1 April 1988 to
31 March 1991 was struck out on the basis that she had failed to
demonstrate any reasonable prospect that her claim would succeed. In the second
decision, her claim under the Industrial Tribunals (Extension of Jurisdiction) Order 1994
in respect of her membership of the first Respondent’s pension scheme for the
period from 1 April 1991 to 31 December 2005 was dismissed as having
been brought out of time. The Tribunal found that the Claimant had failed to
demonstrate that it was not reasonably practicable for her claim to be
presented in time, and/or that, in the event that it was not reasonably
practicable to bring it in time, that the claim was not presented within such
further period as was reasonable.
The facts
2.
The Employment Judge made a series of findings of fact. The
Claimant was employed by the First Respondent as a clinical nurse specialist on
a part‑time basis from September 1982. The rules of the relevant
statutory pension scheme changed during the period of her employment. For the
period up to 31 March 1988 the pension scheme was compulsory for full‑time
employees; part‑time employees were entirely excluded. The period
between 1 April 1988 and 31 March 1991 was a period during which
the pension scheme was optional for full‑time employees but part‑time
employees were entirely excluded. For the period between
1 April 1991 until 31 December 2005, when the Claimant
joined the scheme, membership of the pension scheme was optional for both full‑time
and part‑time employees. Thus, under the rules of the scheme, it was not
until April 1991 that the Claimant could have joined the pension scheme.
The Employment Judge found as a fact that she took out a private pension plan
in April 1991, but that the Claimant was unaware at that time that she was
eligible to join the pension scheme. She did not find out that she was
eligible to join the pension scheme until November 2005 as a result of
enquiries made by her husband.
3.
Accordingly, the Claimant applied to, and joined, the scheme on
1 January 2006. She sought to join the scheme retrospectively to
1 April 1991. The First Respondent rejected that application for
backdating, and it was the subject of a grievance taken up by the Claimant.
The outcome of that grievance was that the First Respondent maintained its
position that it would not backdate her entitlement under the scheme to
1 April 1991. Throughout the period of the grievance, and thereafter,
the Claimant, in respect of her pension matters, dealt with a Mr Peacock,
who was the head of payroll and pension services at the First Respondent. The
Claimant was told in 2006 by Mr Peacock that she would have until a period
of up to six months from when she left her employment to submit a claim to the
Employment Tribunal for retrospective membership of the pension scheme. The
Claimant, in fact, retired from her employment on 31 March 2010.
4.
Leading up to her retirement, she had received a forecast of her pension
entitlement, which was dated, it would seem, 20 January 2010. When
she received her first payment under the pension scheme in April 2010 the
figures were substantially less than had been projected. The documentation
shows that she dealt with Mr Peacock in respect of her enquiry in relation
to the discrepancy between the sums being received and the forecast she had
been given. Mr Peacock had written to the external NHS pensions agency,
having received a formal complaint from the Claimant on 19 May 2010,
asking for a response to the query. On 22 June 2010 the external
pensions agency replied to Mr Peacock to the effect that the forecast had
been completed by reference to a start date of 23 September 1982, but
in fact the payment was made by a reference to a start date of 1 January
2006, the date she actually joined the pension scheme. Mr Peacock omitted
to communicate with the Claimant the effect of this outcome of her enquiry. He
was nudged into responding by an email sent by the Claimant’s husband on
11 August 2010, in which specific reference was made to the need for
any claim to the Employment Tribunal to be submitted “by the end of next month,”
that is, by the end of September, six months after her employment ceased. In
response to that email Mr Peacock, on 12 August, responded
apologising for having forgotten about the matter and indicating that the
response of 22 June would be sent out by post that same day.
5.
The Employment Judge also found as a fact that, when the Claimant had
obtained advice in relation to her personal pension in April 1991, she was
not asked by her advisors to produce evidence of her employer’s pension scheme.
Her advisors were not aware that the Claimant was eligible to join the scheme,
but they were aware of the fact that the Claimant worked in the NHS. The
Claimant had been asked if it was possible that she would not have explored the
NHS pension scheme because she had a private pension. Her response was that it
was a very small pension that she had taken out in 1991 and was not substantial
by any manner of means. The Claimant said, and it was accepted as a matter of
fact by the Employment Judge, that it was not until August 2010 that she
had taken steps to obtain legal advice. Legal advice was, in fact, sought in
January 2011.
6.
The claims made by the Claimant related to the three specific periods to
which I have referred. It was common ground that the claim under the Equal Pay Act
(EPA) in relation to period 1, from 23 September 1982 until
31 March 1988, had been brought in time; that is to say, within six
months of the termination of her employment. It was common ground that the
Claimant was entitled to the benefit of an equality clause and that the
operation of the equality clause required that part‑time employees should
be treated in the same way as full‑time employees. During that period of
time it was compulsory for full‑time employees to be members of the pension
scheme. Accordingly, had the equality clause been applied in the Claimant’s
case during that period, she too would have been compulsorily made a member of
the pension scheme. Accordingly she inevitably had suffered detriment by the
non‑application of the equality clause in that respect. Therefore her
claim had to succeed in respect of that period. The declaration sought was
accordingly made and was not opposed.
7.
As far as the second period was concerned, that too was a claim under
the EPA. The equality clause required that part‑time employees be
treated in the same way as full‑time employees in respect of pension
arrangements. However, the contractual provisions in respect of the full‑time
employees simply gave them the option of being members of the pension scheme.
Accordingly, the application of the equality clause in respect of period 2
required that the part‑time employees, including the Claimant, be given
the option of joining the pension scheme during that period. It did not
necessarily follow, however, that she suffered any detriment as a result of the
equality clause not being applied to her in that respect. It was common ground
that, in order for any detriment to be shown, she would have to establish that
she would, on the balance of probabilities, have joined the pension scheme at
some time during the relevant period, so that the non‑application of the
equality clause in her case would thereby give rise to a detriment.
8.
In respect of the third period, from 1 April 1991 to
31 December 2005, when she joined the pension scheme, the claim was
not one under the EPA because, by that time, the contractual provisions in
respect of full-time and part‑time employees were identical: they each of
them had an option to join the pension scheme. The claim that was brought was
a claim for breach of an implied term that the First Respondent would keep its
employees, including the Claimant, informed of any change in the contractual
arrangements, in particular those that might be beneficial to them and in respect
of which they had to take steps in order to avail themselves of such beneficial
changes. Reliance was placed on the authority of Scally v Southern
Health Board [1991] IRLR 522. The significance of that being the nature
of the claim was that, under the Industrial Tribunals
(Extension of Jurisdiction) Order 1994 (section 7)
the jurisdiction of the Employment Tribunal did not arise unless a complaint
was made:
“(a) within the period of three months beginning with the
effective date of termination of the contract giving rise to the claim, or […]
(c) where the tribunal is satisfied that it was not reasonably
practicable for the complaint to be presented within whichever period is
applicable, within such further period as the tribunal considers reasonable.”
9.
In respect of the claim made in respect of period 3, on the face of
it, the claim had been made out of time, just short of six months after the
termination of the relevant employment. In respect of period 2 the claim
under the EPA was brought in time, within six months of the termination of the
employment. Thus the issues for the Employment Judge in this case were
separate and distinct in respect of periods 2 and 3.
10.
Mr Edwards has helpfully provided some background to the way in
which Employment Tribunals organised the hearing of the very large number of
cases to which the changes in the NHS statutory pension scheme gave rise.
There was a series of information bulletins. Information bulletin
number 9, in respect of part‑time‑worker pension schemes, contained
some basic principles, drawn together and put in a readily accessible form by a
Regional Chairman of Employment Tribunals, Mr Macmillan. That particular
bulletin refers, in paragraph 7, to applicants who failed to join a scheme
when they became eligible. Paragraph 7.2 reads as follows:
“Membership for full‑time employees not compulsory; part‑timers
excluded. Your claim will not succeed in respect of this period of time if you
did not join the scheme when the rules later changed to allow you to do so, or
you only did so after significant delay. This is because your failure to join
the scheme when you were allowed to suggests that had you been a full‑timer
you would not have joined the scheme during this earlier period of time anyway,
and therefore you have lost nothing. However, there is an exception where
applicants who can satisfy a Tribunal that they would have joined during the
earlier period had they been eligible. This is to allow for special cases such
as those where by the time the rules were changed to enable part‑timers
to join an applicant was so near to retirement that joining was pointless, or
she had already taken out a private pension plan.”
11.
Mr Edwards went on to explain that, because of the very large
number of cases coming through the Tribunals in respect of these changes to the
pension arrangements, a process was devised whereby applicants were contacted,
having had their attention drawn to the above relevant passage within the
bulletin. They were asked to indicate if they wished to withdraw their claims.
If they indicated that they did not wish to do so, the case would be listed for
consideration by the Tribunal whether to strike out such claims as having no
reasonable prospect of success. It appears that, in this case, this process
was followed, although it may be that, in addition, the Respondents were asking
for the Tribunal to strike the claim out. Certain it is that there were a
series of standard‑form letters sent to applicants in those
circumstances. One such letter sent in this case, dated
4 February 2011, concludes as follows:
“If the Employment Judge does not believe that there is an
arguable case the claim will be struck out on the grounds that it has no
reasonable prospect of success. If the Employment Judge believes that there is
an arguable case, the claim will be listed for hearing.”
The legal principles
12.
The passage to which I have referred in the bulletin is, in fact,
derived from authorities. That passage in the bulletin has been the subject of
comment in a series of cases. These have been conveniently brought together in
the decision of the Court of Appeal in Coppel v Littlewoods PLC
[2011] EWCA Civ 1281, reported [2012] IRLR 121. The Judgment of Elias LJ
investigates the question of the burden upon an employee when she has to
demonstrate whether she would have been likely, on the balance of probabilities,
to have joined the scheme during the relevant period.
Employment Judge Macmillan’s bulletin, to which I have referred, was
derived from the authority Preston v Wolverhampton NHS Trust (No. 3)
[2002] All PLR 323. The same Employment Judge, in a later case, Betts v
The Books Company PLC [2006] 2600121/96, fleshed out the
details upon which those principles should operate; in particular, at
paragraph 14 he said:
“As the presumption is evidential rather than legal, delay by
itself cannot be decisive, although it clearly will have some, and particularly
with long delays probably a major part to play in influencing the Tribunal in
deciding whether a Claimant would have joined the scheme at an earlier date had
she had the opportunity […].”
13.
The use of the word “presumption” has been the subject of some concern,
as it carries with it a connotation of a legal rather than an evidential burden
or presumption. At paragraph 48 in Coppel Elias LJ refers to an
EAT decision in Laverty v Lanarkshire Health Board and Anor UKEAT
0033/08 in which Lady Smith expressed some concerns about using the
concept of presumption. She said as follows:
“I do not read these comments as indicating that there is a
presumption in law that requires to be rebutted in any case where a Claimant
has not joined the pension scheme when first allowed to do so or has delayed.
Indeed, the governing statute, the Equal Pay Act, does not provide for any
such presumption. Another way of putting it would be to recognise that as a
matter of evidential assessment, a Tribunal will be entitled to infer from the
fact that the Claimant did not join the scheme when she became entitled to do
so or, if she did join later, that she delayed in doing so, she would probably
not have joined it at an earlier date. However, as ever, the Tribunal will
require to consider the whole facts and circumstances and will, equally, be
entitled to conclude that the Claimant would have joined earlier
notwithstanding her not having done so at the first opportunity if, on those
facts and circumstances, it is satisfied that she probably would have done. As
the present case shows, approaching matters in terms of presumptions which require
to be rebutted may not always be helpful.”
14.
That was an approach with which Elias LJ expressed agreement,
namely that she was right to caution against using the term “presumption”. The
way Elias LJ put it was set out at paragraph 51:
“[…] The Employment Tribunal relied heavily on Betts, in
which Judge Macmillan emphasised that there may be numerous good reasons
why no adverse inference can properly be drawn because of delay in joining.
Furthermore, the Employment Judge recognised that the exercise was merely to
draw inferences from the facts. I do not accept that the language of
presumption demonstrates a material error of law. Nor do I resile from the
observation I made in Dennison [v The University of St Mark & St John
UKEAT/0196/06] that the failure to join when eligible will often be powerful
evidence in support of the inference that the woman would not have joined even
had she been eligible to do so. Human experience tells us that if a woman had
really wanted to join the scheme, one might have expected her to join once she
became eligible to do so.”
The Employment Tribunal decision
and the appeal
15.
In the present case the Employment Judge addressed period 2 in
paragraphs 26‑29 of his decision. In paragraph 26 he
summarised the effect of paragraph 7.2 in bulletin number 9. In
paragraph 27 he said as follows:
“The Claimant in this case took out a private pension plan in
1991. She did not provide any of the documentation in relation to the advice
sought or the basis of the instructions to the independent financial advisor
consulted at that time. She did communicate that she told the advisor that she
was in NHS employment. It is hard to envisage that an advisor, being made
aware of that fact by a part time employee of the NHS, would not have conducted
further enquiry. It is clear such an advisor should have done so.”
16.
Then, in paragraph 28, having recorded the fact that the Claimant
took out a private pension plan at the same time as the change in the rules in
April 1991, said as follows:
“28. […] I do not accept that the Claimant stands any reasonable
prospect of demonstrating that she would have joined the scheme at that time
given the significant delay following that period. The period of delay is some
15 years and is entirely consistent with a Claimant who had decided to make her
own provision being a part time employee of the Respondent and having other
private work from another source.
29. It is therefore my conclusion that the claim in respect of
the years 1988 to 1991 must fail.”
17.
In effect, what is said by the Claimant is that the Employment Judge has
failed to apply the correct and stringent test required of him in considering a
strike‑out application. The hurdle required before a claim can be struck
out is an extremely high one. It has been best summarised by the Employment
Appeal Tribunal in the case of Balls v Downham Market High School
& College [2011] IRLR 217, and in particular at
paragraph 6, in the following terms:
“Where strike out is sought or contemplated on the ground that the
claim has no reasonable prospects of success, the structure of the exercise
that the Tribunal has to carry out is the same; the Tribunal must first
consider whether on a careful consideration of all the available material it
can properly conclude that the claim has no reasonable prospects of
success. I stress the word “no” because it shows that the test is not whether
the Claimant’s claim is likely to fail, nor is a matter of asking whether it is
possible that his claim will fail. Nor is it a test which can be satisfied by
considering what is put forward by the Respondent either in the ET3 or in
submissions in deciding whether their written or oral assertions regarding
disputed matters are likely to be established as facts. It is, in short, a
high test. There must be no reasonable prospects.”
18.
Furthermore, the Claimant attacks the reasoning of the Employment
Tribunal against the background where the Employment Judge has found as a fact
that she was not aware in April 1991 that she had become entitled to join
the scheme and did not become aware until November 2005, a matter of weeks
before in fact she did join the scheme with effect from January 2006. In those
circumstances, where the Claimant did not as a matter of fact join the scheme
at a time when she did not know that she could join it, it is said to be an
error of law to have regard to the fact that she did not in fact join the
scheme for a period of 15 years as providing an evidential presumption that she
would not have joined the scheme earlier had the equality clause been applied
to her. In effect, the argument is that it is wrong in law and/or a
misunderstanding of the bulletin and/or perverse to conclude that you can have
any regard to the state of mind of the employee, whether or not to join the
scheme, when in fact she does not know that she can join the scheme. In those
circumstances a failure to join the scheme is said to be of no evidential
weight one way or another.
19.
Furthermore, it is pointed out that the finding of fact that she did not
know that she could join the scheme seems, to some extent, to fly in the face
of the subsequent reasoning at the end of paragraph 28, which hints that,
from April 1991 until 2005, she may have been conscious of the
availability of the scheme to her but had decided to make her own private
provision following the arrangements she made in April 1991. To the
extent that that is part of the reasoning of the Employment Judge it is said
that it is inconsistent with a clear finding of fact that she was not aware
that she could join the scheme.
20.
The third way in which this part of the Judgment is attacked is that it
appears that the Employment Judge is seeking to impute to the Claimant either:
the knowledge of her pension advisor that she could join the scheme, but which
it has been found as a fact was never communicated to her, or seeking to impute
to the Claimant the negligence of her advisor in failing to enquire whether the
provisions of the NHS pension scheme had changed, so as to enable her to be
advised that she could, as of April 1991, join the scheme. It appears
that this line of reasoning must have had some influence on the Judgment of the
Employment Judge, as he laid some emphasis upon it in paragraphs 27 and
(indirectly) 28. For that to work against the background of bulletin
number 9, paragraph 7.2, it is necessary for the Employment Judge to
have concluded that the employee has imputed to her the knowledge or what ought
to have been the knowledge of her pension advisor, and in that respect her
failure to join for some 15 years when in fact she was unaware of the fact that
she could join in some way enables the Tribunal to draw an evidential inference
that, had she known in April 1991 or earlier that she could join the
pension scheme, that she nonetheless would not have done so.
21.
The Appellant goes on to argue that to rely on such an extended and
tortuous process of reasoning as a basis for concluding that she has no
reasonable prospects of success in demonstrating that she would, on a balance
of probabilities, have joined the pension scheme had the equality clause been
applied to her some time after 1 April 1988 is wrong in law and/or
perverse.
22.
In my judgment, given that the test that the Employment Judge was
applying was the very high one of striking out only where it was demonstrated
that the claim had no reasonable prospect of success, these criticisms of the
Employment Judge’s decision by the Claimant are well made. In my judgment,
therefore, the appeal in respect of period 2 succeeds. Of course, that
does not necessarily mean that the Appellant will necessarily succeed in this
part of the claim. What it means is that that matter must go before an
Employment Tribunal to be determined in the normal way after all the evidence
has been adduced and after full argument has taken place. No doubt some of the
arguments relied upon by the Employment Judge may be deployed by the First
Respondent on that occasion, with whatever level of success remains to be seen,
but, suffice it for today, I am satisfied that the Employment Judge has erred
in law and/or has misunderstood or misapplied the findings of fact that he made
in respect of period 2 of the claim and, accordingly, the strike‑out
must be quashed.
23.
As I have indicated, the issue in respect of the third claim was
completely different. It is common ground that for the claim to be made in
time, it would have to have been made by 30 June 2010. It was not
made until 30 September 2010. The crux of the case revolves around
what Mr Peacock said to the Appellant and the position that he held within
the first Respondent’s hierarchy. Mr Edwards, in his helpful skeleton argument,
has summarised the relevant passages in the seminal case concerning whether it
was reasonably practicable for a claim to be submitted in time; that is, in Wall’s Meat Co Ltd v Khan
[1979] ICR 52 CA. In particular, Denning LJ at page 55 said as
follows:
“It is simply to ask this question: Had the man just cause or
excuse for not presenting his complaint within the prescribed time? Ignorance
of his rights—or ignorance of the time limit—is not just cause or excuse unless
it appears that he or his advisers could not reasonably be expected to have
been aware of them. If he or his advisers could reasonably have been so
expected, it was his or her fault, and he must take the consequences.”
24.
And, in the Judgment of Brandon LJ in the same case at
page 59:
“The performance of an act, in this case the presentation of a
complaint, is not reasonably practicable if there is some impediment which
reasonably prevents, or interferes with or inhibits, such performance. The
impediment may be physical, for instance the illness of the complainant or a
postal strike; or the impediment may be mental, namely, the state of mind of
the complainant in the form of ignorance of, or mistaken belief with regard to,
essential matters. Such states of mind can, however, only be regarded as
impediments making it not reasonably practicable to present a complaint within
a period of three months, if the ignorance on the one hand, or the mistaken
belief on the other, is itself reasonable. Either state of mind will, further,
not be reasonable if it arises from the fault of the complainant in not making
such inquiries as he should reasonably in all the circumstances have made, or
from the fault of his solicitors or other professional advisers in not giving
him such information as they should reasonably in all the circumstances have
given him.”
25.
It is to be emphasised that the focus of the Judgments of both
Denning LJ and Brandon LJ was in identifying the crucial
consideration as being fault on the part of the complainant, or on the part of
his solicitors or other professional advisors, in not making such enquiries as
he should reasonably in all the circumstances have made. In the present case
the mistake as to the time period within which Employment Tribunal proceedings
would have to be commenced in respect of the claim between 1991 and 2005 was
not that of the complainant, and it was not that of her professional advisors, whether
solicitors or otherwise. It was the fault, albeit innocent, of Mr Peacock,
who told her, in terms, in the context of the refusal of her grievance and the
clear indication that she would have to litigate in order to achieve what she
wished, that she would have to make her claim to the Employment Tribunal within
six months of the termination of her employment, whenever that might be. That
was not a casual remark made in a social context by somebody in the hierarchy
who happened to be above the Claimant. That was a specific statement made by a
person who was in charge of pension and payroll matters, with whom the Claimant
had been dealing throughout the period of her grievance and with whom she
dealt, and through whom, as a conduit, her complaint, subsequent to the
termination of her employment, about the amount of pension that she was
receiving was conveyed to the external pensions agency and back again.
26.
The Employment Judge realised that the role of Mr Peacock was
crucial. What he said in relation to that was as follows:
“34. I do not consider remarks made by Mr Peacock can be
relied on by the Claimant in this case as justification for failing to identify
that the relevant time limit was three months not six months. It is not
suggested that Mr Peacock sought in this way to mislead the Claimant into
presenting her claim out of time. The Claimant was aware of the fact that she
would have to bring a claim to the Employment Tribunal and the obligation to
obtain relevant advice in relation to that lay on her.”
27.
It is said that the Employment Judge has misdirected himself and/or has
failed adequately to deal with the position of Mr Peacock, and that he has
erroneously focussed, it would appear, on the question of whether
Mr Peacock’s misleading information was given deliberately or, as is
accepted by everyone, in good faith though, unfortunately, inaccurately. It is
clear that the Employment Judge has effectively dismissed out of hand any
suggestion that anything said by Mr Peacock could remove the necessary
element of fault from the Claimant as described in the Wall’s
case. He has simply asserted, without further elaboration or consideration of
the circumstances, that it is for the Claimant to obtain the relevant advice
and that she cannot rely on anything that Mr Peacock said. In my
judgment, that is an inadequate way of dealing with what, in the particular
circumstances of this case, is a complex matter.
28.
Mr Peacock was certainly not in a position of giving her advice,
nor was he engaging with her to give advice. On the other hand, it is clear
from the background and the subsequent correspondence that Mr Peacock was
the person put forward by the First Respondent as the appropriate person for
the Claimant to approach, to deal with, to give any explanation to her in
respect of, and to make enquiries of the external agency about, her pension
entitlement, its extent and quantification. Nor was he simply performing a
clerical function. He was the head of pensions and payroll and put forward as a
person of some authority. In my judgment, any Employment Judge viewing the
circumstances of this case and realising: that the belief that she had six
months after the termination of her employment to make her Employment Tribunal
claim against the First Respondent was engendered by a statement made by an
authoritative person representing her employer with whom she was dealing at the
time in relation to her pension matters; could not reasonably have dealt with
this issue in the dismissive way in which this Employment Judge did. In my
judgment, having looked at all the circumstances, it is plain and obvious that
the Claimant, in the particular circumstances of this case, not only did rely
on what Mr Peacock was saying but was not at fault in doing so. Accordingly, in
my judgment, the Employment Judge erred in law and/or misunderstood or
misapplied his findings of fact in concluding that it was reasonably
practicable for her, in these circumstances, to have made her claim within the
three months as opposed to the six months.
29.
That being so, the Employment Judge then went on to consider whether the
further period, beyond three months up to 30 September, could be regarded
as a reasonable period. At paragraph 35 the Employment Judge expresses
himself as follows:
“In any event given that the time limit expired on 30 June
in the context of breach of contract it is difficult to see how the Claimant’s
delay of almost three months can be regarded as presenting a claim within such
further period as is reasonable. No detailed justification for that delay is
given. I conclude that the Claimant’s claim of breach of contract in relation
to the Scally term is out of time and the Tribunal has no jurisdiction
to entertain it.”
30.
It is, in my judgment, a clear misunderstanding and/or misapplication of
the evidence and the findings of fact for the Employment Judge to say that no
detailed justification for that delay is given. Mr Edwards did not seek
to argue that this characterisation could be described as accurate. It is
clear from the evidence that was before the Employment Judge, and the findings
that he made, that there was a delay during which the Claimant was endeavouring
to ascertain whether there was, in fact, a claim that she might bring in
respect of the period post‑1991, or whether there was simply a mistake on
the part of the pensions agency in paying her less than had been forecast. It
is clear that Mr Peacock forwarded her complaint reasonably promptly, by
19 May. It is clear that the First Respondent’s pension agency responded
to that query reasonably promptly, by 22 June. That was still within the
three‑month period. Unfortunately, however, Mr Peacock then forgot
to inform the Claimant of the outcome of that enquiry. He did not contact her
again until he was provoked into doing so by her husband’s email of
11 August which, explicitly, drew attention to the fact that the six‑month
period, believed by her to be the relevant period, was fast coming to an end.
At that point he did respond, thereby putting the Claimant on notice that she
would have to commence Employment Tribunal proceedings in order for her wishes
in respect of her pension to be achieved. The period subsequently of some six
weeks during which, it appears, she was taking some steps to try to obtain
legal advice by invoking her domestic insurance policy is not, in my judgment,
a significant period of delay against her genuine and reasonably held belief
that she had six months within which to commence proceedings. In fact, she did
commence proceedings within the six months.
31.
In those circumstances, in my judgment the Employment Judge was plainly
wrong to say that she had not given any detailed justification for the delay.
I am satisfied that it is plain and obvious that, had he had regard to the
circumstances to which I have referred, the only reasonable conclusion for an
Employment Judge to reach was that, in those circumstances, the further period
of delay was reasonable. In those circumstances the only reasonable outcome
would have been for the Employment Judge to have permitted the claim to
proceed, notwithstanding the fact that it was nominally made out of time.
Conclusion
32.
In those circumstances, the appeals by the Claimant against the
decisions to strike out in respect of period 2 and to dismiss in respect
of period 3 are upheld. Those decisions are quashed. The case will fall
to be pursued before the Employment Tribunal in the normal way in respect of
the claims in respect of periods 2 and 3.
