Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Robinson v Bowskill & Ors (p/a Fairhill Medical Practice) (Jurisdictional Points : Claim in time and effective date of termination) [2013] UKEAT 0313_12_2011 (20 November 2013)
URL: http://www.bailii.org/uk/cases/UKEAT/2013/0313_12_2011.html
Cite as: [2013] UKEAT 313_12_2011, [2013] UKEAT 0313_12_2011, [2014] ICR D7
[New search] [Printable RTF version] [Buy ICLR report: [2014] ICR D7] [Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Judgment handed down on 20 November 2013
Before
DR BOWSKILL AND SIX OTHERS PRACTISING AS FAIRHILL
Transcript of Proceedings
JUDGMENT
APPEARANCES
|
(of Counsel) Instructed by: New Media Law LLP 3-4a Little Portland Street London W1W 7JB
|
|
|
(of Counsel) Instructed by: Steeles Law Solicitors 3 The Norwich Business Park Whiting Road Norfolk NR4 6DJ
|
SUMMARY
JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
1. The Claimant’s unfair dismissal and discrimination claims were struck out, as being out of time.
2. She was summarily dismissed on 06.07.11. That information was sent to the Claimant’s solicitor by e-mail that day. She informed the Claimant on the next day and advised her to appeal. A letter to the Claimant confirming the dismissal was not seen by her until 08.07. The Employment Judge held that the effective date of termination was 07.07. Held that the EJ had not erred in law; the principle in Gisda Cyf v Barrett ([2010] ICR 1475) that dismissal is not effective until the employee knows of it or has had a reasonable opportunity to do so did not operate so as to exclude communication of the dismissal to the employee by a third party - in this case her instructed solicitor.
3. It was accepted on appeal that the last act of discrimination was more than 3 months before the claim was presented; the issue was whether the EJ had erred in law in declining to extend time on the just and equitable basis. Held that the EJ had erred in law in not taking into account the principle in Virdi ([2007] IRLR 24) that the sins of the Claimant’s solicitor in this context are not to be visited on the Claimant. Virdi had not been cited to her; but the point was not said not to have been taken. The delay was attributable to the solicitor; a finding that time should be extended was substituted.
HIS HONOUR JEFFREY BURKE QC
The nature of the appeal
1. This is an appeal by the Claimant before the Employment Tribunal, Mrs Robinson, against the judgment upon a Pre‑Hearing Review of Employment Judge Martin, sitting at London South and sent to the parties on 19 April 2012 after a hearing two weeks earlier. By that judgment the Employment Judge decided: (1) that the Claimant’s claim of unfair dismissal against the Respondents, Dr Bowskill and his partners in a general practitioners’ practice known as Fairhill Medical Practice, had been brought out of time and that it was reasonably practicable for it to have been brought in time; and (2) that her disability discrimination claim had also been brought out of time and it was not just and equitable to extend time.
2. The Claimant’s claims were therefore dismissed. By this appeal she challenges both limbs of the Employment Judge’s conclusions. She was represented before me by Mr Callow of counsel; the Respondents were represented by Mr Samson of counsel. I am grateful to both of them for their helpful submissions. I need to apologise to them and to the parties for the real delay on my part in the production of this reserved judgment.
The facts
3. I take the factual history from the Employment Judge’s findings of primary fact, which are not challenged in this appeal.
4. The Claimant was employed by the Respondents, partners in a GP practice in Kingston‑upon‑Thames, for over 40 years in an administrative capacity until her dismissal in July 2011. In December 2010 the Respondents began an investigation into serious misconduct that she suspected she had committed and moved on to a disciplinary process. The Claimant became depressed and was signed off work by her doctor; she instructed a solicitor, Ms Kavanagh, to act on her behalf during that process. Ms Kavanagh asked the Respondents to correspond with her and not directly with the Claimant because of the Claimant’s ill‑health. As a result of her ill‑health disciplinary hearings were adjourned or postponed; but eventually the Respondents decided to proceed with the hearing in the Claimant’s absence after giving Ms Kavanagh an opportunity to make written representations. The decision taken at the conclusion of the disciplinary hearing on 6 July 2011 was that the Claimant was summarily dismissed for gross misconduct.
5. On the same day the Respondents’ solicitor emailed Ms Kavanagh as follows:
“As may be aware” [sic]” the disciplinary meeting was scheduled for 1.00 pm today. My client was prepared to slightly delay following your email that written representations would be provided. However, in the absence of any indication from you as to when these could be expected my client has proceeded with the disciplinary hearing in your client’s absence. They have taken the decision to dismiss your client for gross misconduct. A letter confirming their decision will be sent to your client.”
6. On the next day, 7 July, Ms Kavanagh told the Claimant by telephone of the Respondents’ decision; she also wrote a letter to the Respondents’ solicitor, explaining that the Respondents should not have proceeded as they had on the previous day and that, by failing to take the Claimant’s illness into account, they had been guilty of discrimination. On the same day the Respondents’ solicitor sent a letter to the Claimant herself confirming what she had learned from Ms Kavanagh; that letter was received and read by the Claimant on 8 July. It said:
“Following the disciplinary hearing held on Wednesday 6 July 2011 in your absence, I write to inform you of the outcome.
The decision made at the hearing was that your employment with this practice be terminated immediately on the grounds of gross misconduct.”
7. On 20 July the Claimant sent an email to each of the Respondent’s partners in which she appealed against the decision to dismiss her; the email was not opened by the Respondents until 11 August because it got caught in their spam filter, but nothing turns on that.
8. Ms Kavanagh became concerned as to whether the Claimant might be unable to give her proper instructions and asked the Respondents to postpone any appeal until she had medical evidence as to the Claimant’s capacity. She had difficulties obtaining such evidence, which had not been obtained when on 5 October, according to her evidence, she decided that, because of the relevant time limits, she must put forward the Claimant’s claims of unfair dismissal and disability discrimination to the Tribunal; but she did not present the claim to the Tribunal until 7 July.
9. Ms Kavanagh, who was the only live witness at the PHR, agreed that she was fully conversant with the facts of the case and had been closely involved in it since January 2011. She told the Employment Judge that, at the time when she lodged the ET1, she believed the primary time limit to be three months and one day and that at that time she had had personal difficulties and work pressures.
10. The Respondents contended that the Claimant’s claims were out of time; the PHR was directed so that that issue could be resolved.
The issues
11. That factual history gave rise to these issues:
(1) Was the unfair dismissal claim, presented on 7 October 2011, presented within or outside the primary three-month time limit for such a claim, set out in section 111(2)(a) of the Employment Rights Act 1996? The answer to that question turned on the ascertainment of the effective date of termination of the Claimant’s employment, from which date the three‑month period ran.
(2) If the unfair dismissal claim was presented late, was it not reasonably practicable for the complaint to be presented within the three‑month primary time limit, and if so, was it presented within such further period as the Employment Tribunal considered reasonable, pursuant to section 111(2)(b) of the 1996 Act?
(3) Was the disability discrimination claim presented within the primary time limit for such a claim set out in section 123(1)(a) of the Equality Act 2010 (EqA), namely three months from the date of the act to which the complaint related?
(4) If the disability discrimination claim was presented outside that primary time limit, was it presented within such other period as the Tribunal regarded as just and equitable pursuant to section 123(1)(b) of the 2010 Act?
The Employment Judge’s decisions
12. The Employment Judge, naturally, considered the effective date of termination point first. The Claimant relied on the decision of the Supreme Court in Gisda Cyf v Barratt [2010] ICR 1475, to which I shall refer in detail in due course; for the present, it is sufficient to say that the Supreme Court held that, where an employee is dismissed by letter, the three‑month period runs from the date on which the employee has read the letter or has had a reasonable opportunity to read it. The Respondents submitted that the facts of this case were very different from those in Gisda because, although the Claimant did not receive and read the dismissal letter sent to her by the Respondents until 8 July, the dismissal had been communicated to Ms Kavanagh on 6 July and communicated by Ms Kavanagh on 7 July; and the effective date of termination, whether on 6 or 7 July, was more than three months before the presentation of the claim on 8 October.
13. The Employment Judge found, at paragraphs 12‑14 of her judgment, that Ms Kavanagh was acting as the Claimant’s agent and that the effective date of termination was 7 July, when she communicated the dismissal to the Claimant. Therefore, the presentation of the ET1 on 8 July was two days outside the primary time limit, which expired on 6 October.
14. She then, at paragraphs 15‑21, found that Ms Kavanagh had been acting for and advising the Claimant throughout and that it was reasonably practicable for her to have presented the claim on 5 October when she decided that she should do so, or even on 6 October, on the Employment Judge’s conclusions as to effective date of termination. Thus, there was no jurisdiction to hear the unfair dismissal claim, which was struck out.
15. As to the disability discrimination claim, there was an issue as to whether that claim included any period after the dismissal on 6 July. The Employment Judge concluded that it did not and therefore that that claim was presented outside the three‑month primary time limit (paragraphs 22‑26).
16. She decided lastly, at paragraphs 31‑36, that all the information on which to base the claim had been in Ms Kavanagh’s hands prior to 7 July and that there was no satisfactory explanation of the lateness. Thus, the disability discrimination claim also failed.
The basis of the appeal
17. Mr Callow made it clear both in his skeleton argument and at the start of his oral submissions that he did not seek to challenge the Employment Judge’s decisions as to reasonable practicability or that the last act of alleged discrimination was on 6 July and, therefore, the discrimination claim was presented outside the primary time limit. The appeal, therefore, involves the Claimant’s attack as to unfair dismissal only on the Employment Judge’s conclusion as to the effective date of termination and, as to disability discrimination, only on her conclusion that it was not just and equitable to extend time.
Effective date of termination
18. I can summarise Mr Callow’s submissions on this issue, I hope without disrespect to them, in this way:
(1) The effective date of termination is that on which the termination of the contract of employment by the employer takes effect; section 95(1) and section 97(1)(b) of the 1996 Act.
(2) The decision of the Supreme Court in Gisda resolved previous uncertainties by establishing as principle that the summary termination by the employer by letter does not take effect until the employee has read it or has had a reasonable opportunity to read it.
(3) The Employment Judge had erred in concluding that the Gisda test was satisfied by communication to the Claimant’s solicitor; constructive knowledge plays no part in the resolution of the issue as to effective date of termination. There was no room in the principle expressed in Gisda for the dismissal to take effect through communication to a third party.
(4) The Employment Judge’s conclusion that the effective date of termination was that on which Ms Kavanagh communicated the contents of the email of 6 July to the Claimant was illogical. If Ms Kavanagh was agent for the Claimant (as the Employment Judge found) and not for the Respondents (as she did not find), the reading of the letter by Ms Kavanagh might have been sufficient, but the Judge did not so conclude; and for the solution to depend upon when Ms Kavanagh had passed on the contents of the dismissal letter would create absurd uncertainty. What if the Claimant had been uncontactable until 9 July? Would the ET1 then have been in time?
(5) It was important, as Gisda made clear, that an employee should be informed of a possible breach of his or her rights and that the short period in which to present a claim and the even shorter period in which an employee, if appropriate, could claim interim relief (a seven‑day period) had started to run.
(6) The letter of 6 July sent to Ms Kavanagh was not a letter of dismissal but a letter informing Ms Kavanagh of what had happened on that day; the letter to the Claimant of 7 July does not state that it was confirmation of the communication to Ms Kavanagh on the 6 July.
19. Mr Samson submitted, again in summary form, that:
(1) The Claimant had insisted that all communications relating to the dispute with the Respondents went through her solicitor; the Employment Judge was entitled to conclude on the evidence that Ms Kavanagh was her agent for such communications.
(2) Pursuant to that, the Respondents communicated their decision at the disciplinary meeting to Ms Kavanagh. She was told that the writer’s clients, the Respondents, had “taken the decision to dismiss your client for gross misconduct” and said that a letter “confirming their decision” would be sent to the Claimant. The Employment Judge was entitled to treat the letter to Ms Kavanagh as communicating the dismissal to the Claimant.
(3) By shortly after 10.00am the next morning, 7 July, Ms Kavanagh had sent to the Respondents’ solicitor an e-mail in which she criticised the dismissal decision and said that she had advised her client that she should appeal the decision and should consider proceedings for unfair dismissal and discrimination. That confirmed that, by early on 7 July, the Claimant knew that she had been dismissed and had been in receipt of advice as to the next steps.
(4) What is needed to effect the termination of the contract of employment where there is a summary dismissal was accurately described by the EAT, Slynn J presiding, in Brown v Southall & Knight [1980] ICR 617 in these terms at page 628B‑C:
“In our judgement, the employer who sends a letter terminating a man’s employment summarily must show that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it. If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him. That however did not happen in this case.”
That principle was adopted and upheld by the Supreme Court in Gisda. By that time emails had arrived on the scene; the Supreme Court in effect adopted the same approach. The employee is entitled to be informed or at least to be given a reasonable chance of finding out that he has been dismissed before time begins to run, but the key is that the employee should so learn or have that opportunity; no formal letter is required, and how the employee acquires that knowledge is not material. The decision as to the effective date of termination, within that principle, is one of fact.
Discussion and conclusion
20. I do not accept Mr Samson’s submission that the issue as to the date of termination was, subject to the application of the correct principles of law, a question of fact. Although it appears from the judgments in Kirklees Metropolitan Council v Radecki [2009] ICR 1244, which was cited to me for a different purpose by Mr Samson, that the Employment Judge’s decision as to when the effective date of termination occurred was a question of fact, that case involved a very different situation. In the present case, the primary facts found by the Employment Judge are not now challenged; the relevant issue is whether, applying the correct principles of law to the primary facts, the construction or effect of those primary facts led to the conclusion that the effective date of termination was on 8 July or before 8 July (whether on 6 or 7 July makes no difference), and, in my judgment, that was a question, as Mr Callow submitted, of mixed fact and law. Accordingly, the Employment Judge’s decision is open to attack on a wider basis than that of perversity.
21. But did the Employment Judge fall into error in deciding that mixed question of fact and law as she did? The starting point in considering the answer to that question must be the authorities and in particular Gisda, to which I shall shortly come. Mr Callow referred me to Gisda alone; Mr Samson took me to Brown and to Radecki.
22. Having been in the field of employment law, in one guise or another, for over 40 years, I am familiar with the context in which Brown was decided; the question whether an employment contract was terminated forthwith upon summary dismissal by the employer was, at the time, the subject of much ardent forensic debate, which the decision in Brown, to a substantial extent, quelled. The issue as to the effective date of termination arose in Brown because the employers had claimed that the employee had not been continuously employed for 26 weeks – the then qualifying period – and therefore could not bring an unfair dismissal claim. The employer sent to the employee a summary dismissal letter before the expiry of the 26 weeks; the employee had gone on holiday, and by the time he returned and read the letter the 26‑week period had expired. Having considered the authorities, the EAT reached the conclusion at paragraphs 6‑8(b) which I have set out above; and at paragraphs 6‑8(g) they said:
“In our judgement, the termination does not take effect until the employee has either been told, or has had a reasonable opportunity of reading, the notice of dismissal. The date on which the termination takes effect is the date when either he does read it or the date when he reasonably had the opportunity of knowing about it. We do not consider that the fact that he knows on the 30th makes his dismissal retroactive to July 20th.”
23. It should be noted that there is no suggestion there that the communication of the dismissal needs to have any particular formality about it or that it needs to be made directly to the employee as opposed to through a third party, but it was not necessary on the facts for the EAT to consider those issues.
24. In Radecki the claimant teacher was suspended on full pay because of concerns as to his capability in October 2005. There were extensive negotiations, which did not result in formal agreement. After a year the employer ceased to pay the claimant, believing that agreement had been completed. The employee knew that this was so, but the claim form was not presented until March 2007, when the employee sought payment of what he claimed was unpaid salary and met the response that none was due because he had been dismissed some months earlier. The Employment Judge held that the effective date of termination was October 2006. The EAT allowed the Claimant’s appeal, holding that there had been no termination in October 2006; but the Court of Appeal allowed the employer’s appeal and restored the judgment of the Employment Judge. He had found that the claimant knew in October 2006 that his employment had been terminated and therefore the effective date of termination was in October 2006.
25. That decision is consistent with the principle set out in Brown, but Brown and the authorities considered in Brown were not cited in Radecki, in which the issue resolved by Brown did not arise. I have only referred to it because Mr Samson put some weight upon it.
26. In Gisda the Supreme Court approved Brown and the subsequent EAT decision McMaster v Manchester Airport [1998] IRLR 102, which followed Brown but to which I was not taken. The facts were straightforward: the employer sent a recorded‑delivery letter to the claimant’s home on 29 November 2006 informing her of her summary dismissal following a disciplinary hearing. She had, however, gone away to visit her sister on the evening of the hearing and did not see the letter when it arrived on the following day or thereafter until after she returned on 3 December. Her claim was out of time if the effective date of termination was earlier than 3 December; it was in time if the effective date of termination was 3 December or thereafter. On the preliminary point as to whether their dismissal claim was in time, the employee was successful before the Employment Tribunal, the EAT and (by a majority) in the Court of Appeal, the principle in Brown being applied throughout (although before the EAT and Court of Appeal the arguments had a wider canvas)
27. Before the Supreme Court it was argued that Brown and McMaster represented an unacceptable derogation from ordinary contractual principles that a party to a contract can bring it to an end by an overt act inconsistent with the subsistence of that contract. Having considered the authorities, the Supreme Court rejected the employer’s arguments. They referred to Brown and McMaster and then, in the judgment of the Court at paragraphs 34‑36, said:
35. These considerations provide the essential rationale for not following the conventional contract law route in the approach to an interpretation of section 97. As Mummery LJ said, it is a statutory construct. It is designed to hold the balance between employer and employee but it does not require – nor should it – that both sides be placed on an equal footing. Employees as a class are in a more vulnerable position than employers. Protection of employees' rights has been the theme of legislation in this field for many years. The need for the protection and safeguarding of employees' rights provides the overarching backdrop to the proper construction of section 97.
36. An essential part of the protection of employees is the requirement that they be informed of any possible breach of their rights. For that reason we emphatically agree with the EAT's view in McMaster that the doctrine of constructive knowledge has no place in the debate as to whether a dismissal has been communicated. For the short time of three months to begin to run against an employee, he or she must be informed of the event that triggers the start of that period, namely, their dismissal or, at least, he or she must have the chance to find out that that short period has begun. Again, this case exemplifies the need for this. During the three months after Ms Barratt's dismissal, she pursued an internal appeal; she learned that she was unsuccessful in that appeal; she sought advice in relation to the lodging of a complaint of unfair dismissal; and she presumably required some time to absorb and act upon that advice. Viewed in the abstract, three months might appear to be a substantial period. In reality, however, when momentous decisions have to be taken, it is not an unduly generous time.”
28. And at paragraph 41 the Supreme Court said:
“The essential underpinning of the appellant's case, that conventional principles of contract law should come into play in the interpretation of section 97, must therefore be rejected. The construction and application of that provision must be guided principally by the underlying purpose of the statute viz the protection of the employee's rights. Viewed through that particular prism, it is not difficult to conclude that the well established rule that an employee is entitled either to be informed or at least to have the reasonable chance of finding out that he has been dismissed before time begins to run against him is firmly anchored to the overall objective of the legislation.”
29. Mr Callow submitted that constructive knowledge of the dismissal – and by that he meant acquiring knowledge through Ms Kavanagh rather than directly from the Respondents – was not sufficient; he relied in that context on paragraph 33 of the judgment of the Supreme Court in Gisda, in which, at page 1,484H, the following was said:
“[…] an industrial tribunal would be likely to assume that letters usually arrive in the normal course of post and that people are to be taken, normally, as opening their letters promptly after they have arrived.”
30. It is clear that the Supreme Court did not accept the sufficiency of constructive knowledge in the sense that the addressee of a letter is deemed to have knowledge of its contents when it arrives at his address applied. However, the doctrine of constructive knowledge in the sense that A may be bound by B’s knowledge did not arise in Brown or Gisda and does not, in my judgment, arise in the present case. The Employment Judge did not reach her conclusion on the basis that Ms Kavanagh’s knowledge on 6 July was to be treated constructively as the Claimant’s knowledge on that day. Although she did refer to Ms Kavanagh as the Claimant’s agent, she did not conclude from that that Ms Kavanagh’s knowledge was the Claimant’s knowledge; her decision was based on Ms Kavanagh’s informing the Claimant on 7 July of the existence of and the contents of the email which she had received on the previous day. While it might logically have been open to the Employment Judge to consider whether, being the Claimant’s agent in the dispute between the Claimant and the Respondents, her receipt of the email communicating the dismissal was sufficient without communication to the Claimant, if the Respondents so argued, the Employment Judge did not follow that route; and her conclusion is not in error of law because she did not do so. The essential issue on the facts of this case is whether communication to the employee of the dismissal by the employer via a third party, whom the employer has informed of the dismissal, is sufficient to satisfy the test in Gisda.
31. In my judgment, what is essential to the principle is that the contract of employment is not effectively terminated until the employee knows of the dismissal or has had a reasonable opportunity of finding out that he or she has been dismissed. I see no reason why the fact that the employer gives notice of the dismissal to a third party rather than by a direct route to the employee – even if subsequently the dismissal is confirmed by such a direct route – should have the effect that the knowledge thus acquired cannot be treated as sufficient to satisfy the test established in Brown and approved in Gisda; nor do I see any reason why the fact that a formal letter of dismissal has been sent but not received when the employee acquires the knowledge of his dismissal through a third party should or can prevent the acquisition of that knowledge from satisfying that test at the time when that knowledge is acquired. To take an example framed from the facts of Gisda, if the letter of dismissal had been opened by the Claimant’s partner’s son and read to the Claimant on the telephone, while she was still away with her sister, would that not have been sufficient communication? Or, if the employer had sent a letter to a solicitor acting for the Claimant as well as to the Claimant and that solicitor had read the letter to the Claimant while she was at her sister’s, would that not have been sufficient communication? In my judgment, there would have been sufficient communication in both cases.
32. It is of course not difficult to imagine facts which could produce a result that would differ from that reached, in my judgment correctly, in this case. As Mr Callow pointed out, if Ms Kavanagh had not been able to contact the Claimant until 9 July, the result would have been different. However, that does not produce any particular inconsistency; there may always be cases in which a slight variation in the facts may lead to a different result. Nevertheless, the principle, in my judgment, is in no doubt. Employment Tribunals have to apply those principles to the facts of each case and do so, of course, on a day‑by‑day basis. The uncertainties to which Mr Callow drew my attention could be seen to arise equally if his argument were correct; if knowledge derived from a third party was to be ignored in a case such as this; would it be open to a Claimant in the same position as the Claimant in this case to say that she had no knowledge of the dismissal if she had been told in clear terms by her solicitor of it, if it had been read to her and if the solicitor had lodged an appeal against the dismissal on her behalf but the directly sent letter had not been received by the Claimant because it had got lost in the post? In my judgment, the result reached by the Employment Judge does not produce uncertainty or absurdity to a degree that renders it unworkable.
33. Mr Callow took a further point, that the email to Ms Kavanagh did not tell her that the dismissal was without notice. He candidly accepted that he had not taken that point before the Employment Judge. I will assume, that it is open to him to take it on appeal; but it is not, in my judgment, a persuasive point. Neither Ms Kavanagh nor the Claimant is said ever to have suggested that they did not understand on 7 July that the dismissal was immediate in its effect. It is true that the email to Ms Kavanagh does not use the word “immediate” or “immediately” in contrast to the letter sent on 7 July to the Claimant; but the email contained no reference to a notice period, to the Claimant’s working or not working a notice period or to pay in lieu of notice and made it clear that the Claimant had been dismissed for gross misconduct. Ms Kavanagh’s email to the Respondents on 7 July betrayed no shadow of doubt as to what the Respondents had decided on 6 July.
34. For these reasons, my conclusion on this issue is that the Employment Judge did not err in law in reaching the conclusion that the effective date of termination was 7 July and that the unfair dismissal claim was presented outside the three‑month primary time limit.
“Just and equitable”
35. In his skeleton argument Mr Callow accepted that an appeal to the EAT against the Tribunal’s exercise of discretion under section 123(1) of the Equality Act to extend time for the presentation of a discrimination claim on a just and equitable basis can only be successful if it is shown that the Tribunal erred in principle, came to a perverse conclusion or came to a conclusion that was “plainly wrong”, which is not different to perversity (see Hutchinson v Westwood Television [1977] ICR 279, Robertson v Bexley Community Centre [2003] IRLR 434 and many similar authorities).
36. Mr Callow’s submission was that the Employment Judge erred in principle in deciding against the Claimant on the basis or substantially on the basis of the fault of her solicitor or in failing to take into account the fact that the fault was that of the Claimant’s solicitor and not that of the Claimant.
37. I did not, when earlier setting out the thrust of the Employment Judge’s decision on this issue, set out her reasons; I must do so now. She correctly directed herself at paragraph 29 that it was for the Claimant to persuade the court that it was just and equitable to extend time and that, in doing so, she would consider why the claim was presented late rather than the merits of the claim. She set out at paragraph 31 that she had regard to the “checklist” of relevant factors set out in the Limitation Act 1980 as modified by the EAT in BCC v Keeble [1997] IRLR 336, set out that checklist and correctly said that it provided a guide to her considerations. She continued as follows:
“33. The delay in bringing the proceedings is not extensive. The ET1 was presented two days outside the relevant time limit and as such the cogency of the evidence is unlikely to be substantially impaired. However, I do take note that the Claimant’s claim for reasonable adjustments relates to her mental capacity at the time of the disciplinary hearing. Apart from the Claimant’s GP medical certificates, there is no other medical information of her mental capacity at the time. I accept the Respondent’s [sic] submission that it would now be difficult to make that assessment however, do not consider that two days would make much difference to this particular difficulty.
34. The main difficulty is that the Claimant clearly knew and believed she had grounds to bring a claim of discrimination to the Tribunal even before her disciplinary hearing. As set out above references to tribunal proceedings were made by her solicitor on 7th July 2011 and also earlier in correspondence. The Claimant was advised throughout by her solicitor who was actively involved in all aspects of the disciplinary process. Yet despite this, and having sufficient information to bring a claim of discrimination the claim was not made within the applicable time limits.
35. Ms Kavanagh said that she was waiting for papers to be given by the Respondent in order for her to present the claim. However in cross examination she said that the papers requested related to the unfair dismissal claim but not the discrimination claim. In any event were not necessary to present the claim [sic]. She is an experience [sic] employment law solicitor. All that is needed is the basis on which the Claimant believed she had been discriminated against and unfairly dismissed. Quite clearly this information was in the hands of Ms Kavanagh in good time.
36. Ms Kavanagh has sought to explain why she delayed putting in a claim and much of this relates to her concerns about the Claimant’s mental capacity and ability to give instructions during this period. However, there are no medical evidence before me to back this up. There is no medical report or records from the Claimant’s GP. The evidence I have shows that the Claimant personally sought documents from third parties in preparation for her claim as requested by Ms Kavanagh which indicates that she was able to function and give instructions.
37. In considering the reasons why the claim was not brought in time I do not consider that the Claimant has shown any reason why I should extend time for presentation of her discrimination claim on the basis that it is just and equitable to do so. The Claimant’s claim of disability discrimination is dismissed.”
38. Mr Callow submits that in those paragraphs the Employment Judge correctly found that the delay was one of two days only and that it did not affect the cogency of the evidence; there had been no evidence of any lack of co‑operation, and it was clear that the Claimant had already put matters in the hands of her solicitor before she was dismissed. She believed that she had grounds to bring a claim for discrimination in relation to the disciplinary process, yet her claims were not made in time. The Employment Judge then had considered in paragraphs 35 and 36 why that was and concluded that the fault lay with Ms Kavanagh and that the discretion should be exercised against the Claimant for that reason.
39. In Virdi v Commissioner of Police for the Metropolis and Anor [2007] IRLR 24 the claimant’s discrimination claims were presented one day out of time against the first respondent and two‑and‑a-half months later against the second respondent. The Employment Judge decided that the claimant had put his claim in the hands of the Police Federation and his solicitors and that there was no explanation for the delay. The EAT, presided over by Elias P, as he then was, held that the Employment Judge had erred in concluding that there was no explanation; the explanation was that the claimant had put his claim in the hands of his union and solicitors. At paragraphs 35, 39 and 40 the EAT said:
“35. It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419. para 27. For that reason it is not legitimate for a Court to refuse to extend time merely on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor. Mr Sethi went so far as to submit that the existence of a potential claim against a legal adviser was a factor which should not be taken into account at all. He contends that this was the view of the EAT in Chohan v Derby Law Centre [2004] IRLR 685. […]
40. I wholly reject that submission. When assessing whether time should be extended the fault of the claimant is plainly relevant, as it is under section 33. So if the failings are those of the solicitor and not the claimant that is highly material. But the errors of his solicitors should not be visited on his head, as the Steeds case and the authorities to which it refers, make abundantly clear. So whatever the reason why the solicitors failed in their duty would be immaterial when assessing the claimant's culpability, save perhaps for the possibility, which I consider to be wholly fanciful, that they were acting on his instructions and that therefore that he was indeed personally to blame for the late submission. The relevance of the explanation here is that it indicates that the blame for the late claim cannot be laid at Sergeant Virdi's door. That is an important consideration in the exercise of discretion.”
40. The EAT reversed the Employment Judge’s conclusion, so far as the first respondent was concerned; in the case of the second respondent, where the delay was much longer and other matters were relevant, the EAT remitted the just and equitable issue to the Employment Tribunal.
41. In Benjamin v Cole and Great Ormond Street Hospital for Sick Children NHS Trust UKEAT/0356/09 HHJ Serota QC, sitting alone, the Employment Tribunal declined to extend time in respect of a claim that was late but by very little. The claimant had put her case in the hands of someone who held himself out as a skilled representative in employment cases. HHJ Serota QC followed the line of authority culminating in Virdi and allowed the claimant’s appeal against the Employment Judge’s refusal to exercise the just and equitable discretion in her favour, remitting the case to the Employment Tribunal.
42. Mr Callow submitted, on the basis of the principle set out in those authorities, that the Employment Judge had erred in law in failing to apply that principle or in acting on a factor that she should not have had in mind, namely the fault of the Claimant’s solicitor, to which it was not suggested that the Claimant had contributed.
43. Mr Samson reminded me of the long‑established precept that time limits are strictly applied in employment cases and submitted that the Employment Judge had reserved her decision, had correctly directed herself on the law and had reached a factual decision that should not be overturned on appeal unless perversity were proved. He relied on Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327, in which the employer appealed to the EAT and thence to the Court of Appeal against the Employment Tribunal’s decision that it was just and equitable to extend time for the claimant’s belated presentation of her disability discrimination claim. The Court of Appeal in dismissing the appeal emphasised the width of the Employment Tribunal’s discretion. At paragraph 29 Longmore LJ said:
44. Sedley LJ said at paragraphs 30‑32:
32. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it. That, albeit discursively, is what the EJ did here, notwithstanding his passing distraction by a textbook comment of doubtful relevance or weight.”
45. Founding himself on those precepts, Mr Samson contended that an appellate Tribunal should respect the factual findings of the Employment Tribunal and should not strain to identify errors merely because it was unhappy with a factual conclusion; nor should the Employment Tribunal judgment be looked at with a fine‑tooth comb (see, for example, ASLEF v Brady [2006] IRLR 578, EAT, Elias P presiding, at paragraph 55). I wholly accept these propositions. Brady was not a discrimination case; the point applies with greater force where what is sought is the overturning of an exercise of discretion based on factual material.
46. Applying these principles, Mr Samson argued that the Employment Judge reached a factual decision which involved consideration of the relevant factors and which it was open to her to reach; but she did not do so entirely on the basis of fault on the part of Ms Kavanagh. He submitted that the Employment Judge had been critical of the Claimant’s failure to obtain satisfactory medical evidence in paragraphs 33 and 36, at paragraph 35 that she had been critical of the Claimant’s failure to get papers to Ms Kavanagh; and in conclusion at paragraph 37 the Employment Judge had said that she did not consider “that the Claimant [my emphasis] has shown any reason why I should extend time”. This was not a case, as was Virdi, he submitted, in which the only fact weighing against the grant of an extension of time was the availability of a claim against the solicitor (see Virdi, paragraph 43).
47. I have found myself unable to accept Mr Samson’s submissions on this part of the appeal, ably as they were put. I accept his propositions of law, but they do not, in my judgment, satisfactorily rebut the force of Mr Callow’s analysis of the Employment Judge’s decision. While it is correct that the Claimant knew she had a discrimination claim, because the Respondents were insisting in proceeding with disciplinary proceedings against her when, on her case, she was too ill to attend, the Employment Judge was not, in so saying at paragraph 34, criticising the Claimant; she was making the point that she had enough information to enable Ms Kavanagh to proceed with the claim. As she said at the end of the following paragraph, Ms Kavanagh had all that she needed to enable her to present the discrimination claim in good time. As to the absence of sufficient medical evidence, that was relevant because Ms Kavanagh had sought to explain the delay on her part by reference to the Claimant’s illness and to her, Ms Kavanagh’s, concern that the Claimant might not have the capacity to give instructions. The Employment Judge in paragraph 36 was not criticising the Claimant, nor was she doing so in paragraph 33.
48. As to paragraph 37, the Employment Judge had to decide whether the Claimant had demonstrated any reason why time should be extended. Her conclusion that the Claimant had not done so did not in any way indicate that the Claimant was herself at fault. The Claimant did not give evidence; Ms Kavanagh did. It was she who, on behalf of the Claimant, sought to explain the delay; but it was the Claimant who, by those means and whose claim it was, who was seeking an extension of time. It was for the Claimant to demonstrate that the discretion should be exercised in her favour; on the Employment Judge’s conclusion, she had failed to do so. She failed to do so because of the fault of her solicitor.
49. That approach, in my judgment, involved the error of law or of principle on which Mr Callow relied. It is clear from Virdi and authorities before and since Virdi that where the case of a claimant who seeks an extension of time is that he or she put the claim into the hands of a solicitor or experienced representative, the claimant is putting forward an explanation which is capable of being a satisfactory explanation for delay in the presentation of the claim. To quote Elias P in Virdi again, “The errors of his solicitor should not be visited on his head”. Unfortunately, the Employment Judge was not referred to Virdi, but, while for this reason the error that, in my judgment, she made by not appreciating that the Claimant was putting forward a potentially valid explanation and should not ordinarily be denied the exercise of discretion when the other relevant facts were in her favour, is forgivable, it remains an error of law which vitiates her conclusions on this issue.
50. For these reasons, I have concluded that this is one of those rare cases in which the EAT can and should intervene although the Employment Judge was carrying out a discretionary function and that the appeal against her decision that there should not be an extension of time in relation to the disability discrimination claim should be allowed.
Disposal
51. Mr Samson submitted that, if I were to reach the above conclusion, I should remit the just and equitable issue to the same Judge to reconsider that question on a correct application of the law. Mr Callow submitted that there was no need for a remission.
52. I must remit unless, on a remission, only one result could sensibly emerge; but it is my view that that is the case here. All the other relevant factors were in the Claimant’s favour. If the solicitor’s delay is not weighed in the balance against her, it is so unlikely that the just and equitable issue could properly be resolved against her on a remission that I should say that remission is unnecessary and substitute a finding that the time for presentation of the disability discrimination claim is extended to the date on which that claim was presented.
53. Accordingly, the Claimant’s appeal against the dismissal of her unfair dismissal claim is dismissed. Her appeal against the dismissal of her disability discrimination claim is allowed, with the substitution for the Employment Tribunal’s order of the order which I have set out.