United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2016/0022_16_0802.html
Cite as: [2016] UKEAT 22_16_802, [2016] ICR D11, [2016] UKEAT 0022_16_0802
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
EAST LONDON BUS & COACH COMPANY LIMITED RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(Solicitor) Law Lane Solicitors 1 Salway Palace Stratford London E15 1NN
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(of Counsel) Instructed by: Hewitson Moorhead Kildare House 3 Dorset Rise London EC4Y 8EN
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SUMMARY
JURISDICTIONAL POINTS - Claim in time and effective date of termination
JURISDICTIONAL POINTS - Extension of time: reasonably practicable
Unfair dismissal - early conciliation - whether claim brought in time - section 207B(4) Employment Rights Act 1996 (as amended) (“ERA”)
The effective date of termination of the Claimant’s employment had been 20 March 2015. The relevant notification to ACAS for early conciliation (“EC”) purposes was made on 18 June 2015. On 30 June, the EC certificate was emailed to the Claimant’s solicitors. On 31 July, the Claimant’s claim (complaining of unfair dismissal and disability discrimination) was lodged with the Employment Tribunal (“ET”). By its ET3, the Respondent contended the claim had been presented one day out of time. The ET agreed, holding that, whilst it was just and equitable to extend time for the purposes of the discrimination claim, it had been reasonably practicable to lodge the unfair dismissal claim in time but the Claimant had failed to do so.
On the Claimant’s appeal, contending the ET had wrongly construed section 207B(4) ERA 1996:
Held: dismissing the appeal
Stopping the clock for EC purposes brought into play the provisions of section 207B(4). The period in question for these purposes started on 18 June 2015 (Day A) and ended one month after Day B, which was 30 June 2015. In determining what was one month after, the ET had (i) understood “month” to mean “calendar month” (on which no issue was taken) and (ii) had applied the corresponding date principle. That meant that time expired on 30 July and thus the claim had been presented out of time. The corresponding date principle had been approved by the House of Lords in Dodds v Walker [1981] 1 WLR 1027 HL, specifically ruling that this meant that time ran from the date of the event in question to the corresponding date in the following month, even where the relevant Rule or provision used the term “after”. The Claimant argued it was appropriate to see section 207B(4) as an example of the small minority of cases that Dodds allowed might fall outside the corresponding date principle; it involved a single month rather than a plurality of months. Dodds expressly spoke of a month or months, however, and there was no reason in principle why the principle should not apply in the former case. This approach had the attraction of clarity and simplicity. It was, furthermore, binding on this Court given the ruling in Dodds. The Claimant had identified no other basis of distinction, and the appeal must be dismissed.
HER HONOUR JUDGE EADY QC
Introduction
1. I refer to the parties as the Claimant and Respondent, as below. This is the Claimant’s appeal against a Judgment of the East London Employment Tribunal (EJ Russell, sitting alone on 2 November 2015; “the ET”), sent to the parties on 23 November 2015, by which it ruled that the Claimant’s claims of unfair dismissal and disability discrimination had been presented out of time. The ET extended time on a just and equitable basis so the discrimination claim might proceed but it had been reasonably practicable for the unfair dismissal claim to have been presented in time and, accordingly, that claim was dismissed. The Claimant appeals from the ET’s ruling on his unfair dismissal claim. His proposed grounds of appeal were initially considered on the papers by HHJ Hand QC, who took the view that this matter needed to be considered at a Full Hearing on an expedited basis.
The Background Facts
2. The Claimant was employed by the Respondent from 20 August 2009 until his dismissal on 20 March 2015 (that is the date both parties use in their submissions; the ET’s Reasons suggest a date of 21 March, but I assume that is a typographical error).
3. The Claimant instructed solicitors who, on 17 June 2015, contacted ACAS in accordance with early conciliation (“EC”) requirements - EC notification 1. The solicitors had, however, initially failed to give the Respondent’s full legal title (instead using its trading name) or its address. That error was rectified by further notification the next day - EC notification 2.
4. The Respondent having made clear it was unwilling to engage in conciliation, the EC period concluded, and on 30 June 2015 an ACAS EC certificate was emailed to the Claimant’s solicitors. That certificate pertained to EC notification 2. On 2 July 2015 the Claimant’s solicitors received a further EC certificate, this time relating to EC notification 1.
5. On 7 July the Claimant gave instructions to commence ET proceedings. His solicitors mistakenly believed that the second EC certificate related to EC notification 2 and thus, on their reasoning, that the claim did not have to be presented until 2 August 2015 although in fact it was lodged on 31 July 2015. This gave the correct details for the Respondent and included the number of the first EC certificate, that relating to EC notification 2. By its ET3, however, the Respondent contended the claim had been presented one day out of time; an issue the ET duly listed to be determined at a Preliminary Hearing.
The Relevant Legal Principles and the Issue Raised by this Case
6. Given the application of the EC provisions, the ET was charged with considering the provisions of section 207B of the Employment Rights Act 1996 (as amended) (“ERA”), which, relevantly, provides as follows:
“(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a “relevant provision”).
…
(2) In this section -
(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and
(b) Day B is the day on which the complainant or applicant concerned receives … the certificate issued under subsection (4) of that section.
(3) In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted.
(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.
(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.”
7. The purpose of section 207B is undoubtedly to ensure that, with regard to ET time limits, a Claimant is not disadvantaged by the amount of time taken during the relevant limitation period for EC compliance. Thus the amount of time spent on EC will not count in calculating the date of expiry of the time limit; the clock simply stops during the EC period.
8. Stopping the clock for the purposes of EC in this case would, on anyone’s argument, give rise to a date falling within the period beginning with Day A and ending one month after Day B (section 207B(2)). It thus brought into play section 207B(4). The period in question for subsection 207B(4) purposes started on 18 June 2015 (Day A) and ended one month after Day B, which was 30 June 2015. The issue was: what was “one month after”?
9. The parties are agreed that the reference to “month” in section 207B is to be read, consistent with the Interpretation Act, as a calendar month. As to what that entails, in Dodds v Walker [1981] 1 WLR 1027 HL, Lord Diplock stated (page 1029A-F):
“… reference to a “month” in a statute is to be understood as a calendar month. … It is … well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.
The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30 day month is one day shorter than one month’s notice given in a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.
This simple general rule … described as being “in accordance with common usage … and with the sense of mankind,” works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on the 31st of a 31 day month and expiring in a 30 day month or in February, and notices expiring in February and given on the 30th or the 29th (except in a leap year) of any other month of the year. In those exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends upon the last day of the month in which the notice expires.”
10. In Dodds - as here - the relevant date was the last day of 30 day month; in that case, September (rather than, as here, June). The final day contended for by the tenant seeking a tenancy renewal was 31 January. Of the three Lord Justices of Appeal and five Lords of Appeal in Ordinary who considered the point, only Bridge LJ (as he then was), held out for excluding 30 September. Lord Russell addressed Bridge LJ’s contention that the tenant was allowed the whole of the four calendar months at page 1030H, stating:
“… I am with respect unable to accept this departure from the corresponding date principle … a departure from the sound and well established rules is not required in that one instance …”
The ET Decision
11. The ET approached the issue before it on the basis that the Claimant’s ET1 had not been rejected. It had included a valid EC certificate number, and the EC certificate matched the correct name and address of the Respondent. That EC certificate was dated 30 June 2015. The ET claim was presented on 31 July 2015. Although the Claimant’s solicitor had originally considered the claim had been presented within time (on the basis that time expired on 2 August), on seeing the Respondent’s ET3, his evidence to the ET was:
“16. … it was clear I had made an error by counting the time from the second ACAS certificate issued on 02 July 2015.”
12. Whilst thus conceding an error in calculating time, the Claimant’s solicitor continued that he considered that a calendar month would still mean that the claim had been presented in time as it had been lodged on the last day of the month, 31 July.
13. The ET observed that the extension of time allowed by the EC provisions was one month. Adopting the same approach to the interpretation of the reference to a month as in the primary time limit provisions, the ET considered this was also of a calendar month, which meant time expired on 30 July 2015. On the basis of the otherwise valid ET1 and the EC certificate to which it related, the ET concluded the claim was presented one day out of time.
14. For the Claimant it was then argued the ET should permit an amendment to the ET1 to refer to the second rather than the first EC certificate so time could be extended, courtesy of the EC scheme, to 2 August; thus meaning the claim was in time. Whilst this would mean the EC certificate related to EC notification 1 (so the Respondent’s details on the ET1 did not match the EC certificate), these difficulties could be overcome by the ET joining the Respondent by its trading name, thus ensuring it was identified in the same way as on the EC certificate.
15. The ET declined to adopt that course. It would mean creating an error in the ET1 and require a series of further amendments to try to unravel the inaccuracies thus caused. That was not a rational exercise of judicial discretion nor in line with the overriding objective.
16. Turning then to the question of reasonable practicability, the error here had been that of the Claimant’s legal advisers. There was no reason to depart from the general principle that a failure by an adviser such as a solicitor preventing a Claimant from claiming it was not reasonably practicable to present the claim in time. That being so, the unfair dismissal claim had been presented out of time, and no extension would be granted.
The Appeal
17. The Claimant did not seek to contest the ET’s refusal to exercise its discretion to permit the amendments as argued below. The appeal was initially, however, put on two bases:
(1) The ET erred in its approach to calendar month. That should have meant that time expired on 31 July 2015, the last day of the calendar month, not simply at the expiration of 30 days.
(2) Alternatively, the ET’s refusal to exercise its discretion to extend time was perverse in the circumstances of this case.
18. Before me Mr Jatoi has not pursued the perversity argument; he rested his case on the first ground, the approach to the reading of section 207B(4) ERA.
Submissions
The Claimant’s Case
19. On behalf of the Claimant, it is submitted the ET erred in failing to find time was extended to 31 July 2015, rendering the claim in time. This must be so as section 207B(4) provides that time expires one month after Day B. This is to be contrasted with the use of the word from in other statutory provisions. This meant the relevant period - the additional month - started on 1 July 2015; giving the Claimant the entirety of the calendar month to which he was entitled meant it expired on 31 July 2015, so his claim was in time.
20. When I suggested that on his argument (and applying the corresponding date rule but excluding the date of Day B) time would have expired on 1 August 2015, Mr Jatoi disagreed, submitting that the provision gave the Claimant the calendar month. That said, accepting the general approach provided in Dodds and the corresponding date rule approved therein, Mr Jatoi submitted that was not to say there could not be exceptions. In Dodds it had been allowed that in a small minority of cases the rule would not apply; see per Lord Diplock at page 1029C. In Dodds more than one month had been involved - it concerned a period of four months - and so there was more need for clarity than in the present case, where only one month was involved. That would ensure that respect was given to the entirety of the period permitted by the legislation, as was recognised as necessary by the Supreme Court in Gisda Cyf v Barratt [2010] UKSC 41, specifically in the Judgment of Lord Kerr at paragraph 42:
“42. … the legislation is designed to allow an employee three months - not three months less a day or two - to make a complaint of unfair dismissal. When one considers that the decision to lodge such a complaint is one not to be taken lightly, it is entirely to expected that the period should run from the time that the need to make such a decision is known to the employee.”
The Respondent’s Case
21. On behalf of the Respondent it is contended that the ET was entirely correct in its approach. Section 207B should be construed in accordance with the corresponding day principle, and the learned Judge was correct to find that the last day for presentation was 30 July not 31 July. That principle was (1) simple, (2) of easy application, (3) well understood as a method for computing time for a month and over a plurality of months, and (4) produced fewer variations in actual days over any year where the relevant day happens to be the last day of the month. Furthermore, there was no sound reason not to apply or to depart from the rule. It did no violence to the calculation of time under the section and no violence to the EC scheme. On the contrary, it brought certainty. The apparent discrepancy because the relevant day was the 30th day of a 30 day month was not a good reason (see per Lord Russell in Dodds). Dodds did not distinguish between one month or more than one month. It recognised the general application of the corresponding date principle as providing a solution that gave clarity where the reference was to a calendar month, which would otherwise allow for differing numbers of days depending on the particular month. The case of Barratt did not assist. That was concerned with a period beginning with, and the issue before the Court was the determination of the effective date of termination not the issue with which this appeal was concerned.
Discussion and Conclusions
22. This is a case where those acting for the Claimant plainly made a genuine error in the lodging of the ET claim (so much was accepted by Mr Jatoi in his evidence below); there was confusion about the different EC certificates and an error was made. The ET recognised the potential injustice of shutting the Claimant’s claims out in their entirety. It thus permitted the discrimination claim to proceed because it was just and equitable to do so. Its discretion was, however, fettered when it came to the unfair dismissal claim by the far stricter regime that applies to such cases in terms of time limits. Thus the ET had to consider the application of section 207B. The possible issues that might arise from the stopping of the clock under section 207B(3) did not, however, concern it; it was dealing with the familiar territory of a one month time period; it properly approached this on the (agreed) basis that a month must mean a calendar month. Given the way the case was presented before it, the ET does not then set out its reasoning in detail, but it is apparent that it approached the determination of the expiry of that time limit by application of the corresponding date principle.
23. Most of the statutory limitation periods with which an ET will be concerned specify that the complaint must be presented to the ET within the relevant period beginning with a particular date. Unfair dismissal claims, for example, must be presented “before the end of the period of three months beginning with the effective date of termination” (section 111(2) ERA 1996) and thus the first day of the three month period is the date of termination itself, the issue that concerned the Supreme Court in Barratt.
24. Should the approach be different because the statutory language uses the expression after? That was the issue that concerned the House of Lords in Dodds. Because of the difficulty of determining the expiration of a calendar month - where the number of days can vary - the Courts have long adopted the corresponding date principle. So, although Dodds concerned a period after the giving of notice, the date on which the notice was given was taken to be the relevant date when then projecting forward for the corresponding date the next month. The rule is simple and it is well established that - when the relevant period is a month or specified number of months after the giving of a notice or other specific event - the relevant time period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given or the specified event occurred.
25. Recognising the weight of authority against his submission, the Claimant observes that the approach to section 207B(4) should fall into the minority of cases allowed for by the House of Lords in Dodds; section 207B(4) did not involve a plurality of months, which was the main reason for the corresponding date rule. The House of Lords in Dodds expressly talked, however, of a calendar month or months, deliberately covering both possibilities. The speech of Lord Diplock recognised the kind of exceptional case that might fall outside the rule in discussing the difficulties where notices are given on the 31st of a 31 day month and expire in a 30 day month or in February (see the extract from his speech above). It did not include the case involving a single month.
26. No other reason has been identified before me that would justify my adopting an approach contrary to that laid down in Dodds, which I am bound to follow. Whilst I suspect this may be the first appeal heard relating to the provisions of section 207B, to the extent it is seen as providing guidance, it does so by applying the well established corresponding date principle. That has the attraction of simplicity and clarity; it is binding upon me. I dismiss this appeal.