United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0342/15/LA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 8 March 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

MISS M ADAMS                                                                                                     APPELLANT

 

 

 

 

 

BRITISH TELECOMMUNICATIONS PLC                                                      RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR GORDON SANKEY (Representative) Stevenage Citizens Advice Bureau Swingate House Danestrete Stevenage Hertfordshire SG1 1AF
For the Respondent	MR DAVID RUSHMERE (Solicitor) British Telecommunication plc BT Group Legal, pp A673, BT Centre 81 Newgate Street London EC1A 7AJ

 

 

SUMMARY

JURISDICTIONAL POINTS - Extension of time: reasonably practicable

JURISDICTIONAL POINTS - Extension of time: just and equitable

 

The Employment Judge erred in treating the fact that the Appellant presented a claim in time (albeit a defective one) as meaning that a second claim raising the same complaint could reasonably practicably have been presented in time.  The focus should have been on the second claim and whether there was any impediment to timely presentation of that claim.  The failure to address that question was an error of law.

 

The Employment Judge further erred in failing to have regard to the prejudice to the Appellant in determining whether it was just and equitable to extend time in reference to the unlawful race discrimination complaints.  This was a material factor not addressed by her.  Moreover, the prejudice was all one way.

 

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

1.                  This is an appeal by the Claimant, Miss Adams, against a Judgment of Employment Judge Grewal with Reasons sent to the parties on 30 September 2015.  The Employment Judge concluded that the Tribunal did not have jurisdiction to consider complaints of unfair dismissal and unlawful race discrimination pursued by the Claimant against her former employer, British Telecommunications plc, the Respondent.  The appeal, which seeks to challenge the Tribunal’s decision that it was reasonably practicable for the Claimant to present her second claim in time and/or the refusal to extend time, proceeds with the permission of HHJ Peter Clark, who identified arguable grounds by reference to a potential conflict between the decisions of Langstaff J in Sterling v United Learning Trust UKEAT/0439/14 (a decision of this Appeal Tribunal in February 2015) on the one hand, and Software Box Ltd v Gannon UKEAT/ 0433/14 (another decision of Langstaff J sitting in the Appeal Tribunal in June 2015) on the other, and separately as to whether the Employment Judge erred in failing to adopt the more liberal approach to be taken to extending time in respect of unlawful race discrimination complaints than that available for unfair dismissal complaints.

 

The Facts

2.                  The facts so far as material can be summarised shortly by reference to the findings of the Employment Judge as follows.  The Claimant was employed as a Finance Manager by the Respondent.  Her employment terminated, notice having been given, on 1 October 2014.  On 18 December 2014 she gave early conciliation notification to ACAS, and early conciliation was completed on 18 January 2015.  She was on that date issued with an early conciliation certificate.  It was common ground before the Tribunal that, having taken into account the extension of time limits for the purposes of facilitating early conciliation before instituting proceedings, the primary three-month limitation period in respect of both complaints - unfair dismissal and unlawful race discrimination - expired on 17 February 2015.  Mr Rushmere, on behalf of the Respondent, submits that agreement was in fact in error and that the relevant date should have been 18 February 2015 in respect of both claims if a proper approach to the calculation of the time was conducted.  Since whether it was 17 February or 18 February has no material effect upon this decision, and since I heard no detailed oral argument on the point, I do not resolve that question.

 

3.                  The Claimant instructed solicitors on 16 February 2015, and on that day she attended personally with her solicitor at the East London Employment Tribunal to hand in a claim form together with a cheque for the fee required for issuing that claim.  The receipt of the claim form and cheque was acknowledged in writing.  The ACAS early conciliation certificate number was R078129/14/07, but the number entered on the form by the Claimant omitted the last two digits, the “07”, so that the early conciliation certificate number was incomplete and accordingly inaccurate.  On 17 February the Employment Tribunal’s Central Office returned by post the claim form and the cheque to the Claimant’s solicitor, stating that it could not be accepted because the ACAS certificate number was inaccurate and the claim form would therefore have to be resubmitted.

 

4.                  The form was not received back by the Claimant’s solicitor until 19 February.  On that date a second claim form was completed.  The ACAS early conciliation certificate number was entered correctly, and the form and the cheque were taken to the East London Employment Tribunal before 4 o’clock the same day, 19 February.  The Tribunal’s Central Office date stamped the form as having been received and presented on 20 February, but all parties accept, and the Employment Judge accepted, that it was presented on 19 February; in other words, two days out of time.

 

The Applicable Law

5.                  There is no dispute as to the applicable law, which is set out by the Employment Judge at paragraphs 10 to 12 of the Judgment with Reasons.  The provisions governing time limits in unfair dismissal claims are set out at section 111 of the Employment Rights Act 1996 (“ERA”) and those governing time limits in discrimination cases at section 123 of the Equality Act 2010.  The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, provide at Rule 8 that a claim is started “by presenting a completed claim … using a prescribed form …”.  Rule 10 is headed “Rejection: form not used or failure to supply minimum information”, and is a mandatory Rule that requires a Tribunal to reject a claim if, at (1)(c), “it does not contain all of the following information”, namely, “(i) an early conciliation number”.  The result is that if the minimum information is not provided within the form, the Tribunal has no option but to reject the claim unless that omission is capable of being excused by considering some other Rule.

 

6.                  Rule 12 deals with rejection for substantive defects and sets out at Rule 12(1) points that may lead a member of staff to refer a claim form to an Employment Judge if there are aspects of it that appear to be defective.  Rule 12(2A) provides that the claim or part of it shall be rejected if the Judge considers that the claim or part of it is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the Claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.  Rule 12(1)(e) provides that the claim is one that institutes relevant proceedings and the name of the Claimant on the claim form is not the same as the name of the prospective Claimant on the early conciliation certificate to which the early conciliation number relates, or (f) it is one that institutes relevant proceedings and the name of the Respondent on the claim form is not the same as the name of the prospective Respondent on the early conciliation certificate to which the early conciliation number relates.

 

7.                  Rule 12(2A) thus provides an escape route for minor errors in relation to a name or address, both identified as the mandatory minimum information to be supplied under Rule 10, failing which a Tribunal will reject the claim.  Contrariwise, a minor error in relation to the early conciliation certificate number itself, if the early conciliation number entered on the claim form is not the same as the early conciliation number on the certificate itself, is not capable of being corrected in the same way under Rule 12(2A).  It is difficult to see any justification for this distinction.  None was advanced by either counsel and I cannot identify any.  Both are minor errors but no escape route is provided for certificate number errors.

 

8.                  Rule 10(2) provides that the form shall be returned to the Claimant with a Notice of Rejection explaining why it has been rejected and that the Notice should contain information about how to apply for a reconsideration of that rejection.  Rule 13 deals with reconsideration and provides that a Claimant who has a claim that has been rejected under Rule 10 may apply for reconsideration on the basis that the decision to reject is wrong or that the notified defect can be rectified.  Rule 13(4), however, provides that if the Judge decides that the original rejection was correct but that the defect has been rectified the claim shall be treated as presented on the date that the defect was rectified. 

 

9.                  Here, as is common ground, although the Claimant had correctly been through the ACAS procedures, the ET1 claim form originally submitted did not contain the complete ACAS early conciliation number as required.  In Sterling Langstaff J held that the wording of Rule 10, which had not significantly been an issue for him, required an early conciliation number to be set out and that it was implicit that that number should be the accurate number.  The same seems to me obviously true in this case, and Mr Sankey, who appeared on behalf of the Claimant, did not strongly contest that point.  Accordingly, the first claim in this case was validly rejected by the Employment Tribunal as not containing the minimum information required.

 

10.              So far as reconsideration is concerned, again in Sterling at paragraph 11 Langstaff J suggested that a Claimant in that situation might make an application for reconsideration of the rejection and that:

“11. … It might be thought that in any case in which there had been a minor slip which was later corrected on resubmission of the same form, a reconsideration of the rejection might be applicable with the consequence that the claim would not be regarded as having been out of time. …”

 

The difficulty with that view however, is presented by Rule 13(4), because if the original decision to reject is itself correct, the Rule affords no discretion as to how to treat the date of presentation of the claim.  Rule 13(4) is expressed in mandatory terms and provides that it is not the date when the claim was originally presented but the later date when the defect is rectified.

 

11.              In those circumstances, and against that background, it seems to me that the Employment Judge was both entitled and correct to conclude: (i) that the first claim lodged on 16 February was incomplete and defective and was correctly rejected by the Employment Tribunal; (ii) that the defect was rectified on 19 February when the second claim was presented, fulfilling the minimum information requirements; and accordingly, (iii) whether or not the Tribunal had jurisdiction in respect of the Claimant’s complaints would therefore depend on the question of reasonable practicability in relation to unfair dismissal and on whether an extension of time would be just and equitable so far as her unlawful race discrimination claims are concerned.

 

The Employment Judge’s Reasons

12.              The Employment Judge dealt with the question whether it was reasonably practicable to present the unfair dismissal complaint in time as follows:

“18. I then considered whether it was not reasonably practicable for the claim to have been presented before 17 February 2015.  It is clear that the Claimant was able to present a claim form before that date.  She instructed solicitors and they delivered a claim form to the Tribunal on 16 February 2015.  There was no reason at all why the claim form delivered on that date could not have contained the correct ACAS Certificate number.  That number was in the possession of the Claimant.  The responsibility for the incorrect and incomplete number appearing on the form must lie with the Claimant and her representative.  In all the circumstances, I am not satisfied that it was not reasonably practicable for the Claimant to present the complaint of unfair dismissal be [sic] 17 February 2015.”

 

13.              So far as the just and equitable discretion is concerned, the Employment Judge dealt with that at paragraphs 19 to 22:

“19. I next considered whether it would be just and equitable for the Tribunal to consider the complaint(s) of race discrimination.  As far as the complaint relates to dismissal, I accept that the delay in question is not significant; the claim was presented two days after the primary time limit expired.  However, if the dismissal is not found to be an act of race discrimination, the pre-dismissal complaints would be considerably out of time and that would clearly impact on the cogency of the evidence and the ability of the Respondent to defend itself.

20. The only reason why the complaint in respect of the dismissal, which is alleged to be the end of a continuing act of race discrimination, was not made in time is that the Claimant and/or her solicitor inserted the incorrect ACAS number in the claim form.  The Claimant had in her possession the ACAS certificate with the correct number and there was no reason why it should not have been entered accurately.  The reason why the claim with the defect rectified could not be presented in time was that the Claimant, who knew from the ACAS certificate the date by which the claim had to be presented, waited until the last minute to consult solicitors.  Knowing full well that he [sic] claim was being submitted the day before the time limit expired, the Claimant and/or her representative chose to deliver it in person rather than submit it online.  By doing that the [sic] placed themselves in a position where, if any issue arose, they would not be able to rectify it within time.  The delay is wholly attributable to the carelessness and sloppiness of the Claimant and her solicitor.

21. There was no explanation why the Claimant did not complain of the earlier acts within three months of them occurring.

22. Having considered all the matters, I was not satisfied that it would be just and equitable to permit the race discrimination claim to proceed, notwithstanding that it had not been presented in time.”

 

 

The Appeal

14.              The first ground of appeal advanced on the Claimant’s behalf by Mr Sankey challenges the Employment Judge’s approach and conclusion at paragraph 18 as in error of law on the basis that the Employment Judge incorrectly focused on the first claim, which the Tribunal concluded could and should have been presented in time, and failed altogether to address the second claim.  The correct focus should have been on the second claim, presented on 19 February 2015, and the question whether in relation to that claim it was reasonably practicable to present that claim in time, but the Tribunal did not grapple with that question.  Particular reliance is placed on Software Box case, an authority to which the Employment Judge did not refer.  Mr Sankey submits that Software Box is on all fours with the Claimant’s case on this appeal.

 

15.              For the Respondent, Mr Rushmere does not dispute that the relevant claim form for the purposes of determining reasonable practicability is the second claim form, presented two days late.  Moreover, he accepts that Software Box does not preclude a Tribunal from considering the second claim merely because a first claim was presented in time.  What he says, however, is that the Employment Tribunal was not precluded from looking at the first claim in order to address the question whether it was reasonably practicable to put the second claim in on time.  A Tribunal is entitled to consider the fact that there was a first claim and to consider the circumstances in which the first claim came to be presented and to use that first claim form as a guiding light to determine the question of reasonable practicability.  That, he submits, is precisely what the Employment Judge did here and her conclusion was accordingly not in error of law.  Moreover, the Claimant was in possession of all necessary information to present a complete claim form on 16 February without defects.  She had the support of a competent solicitor and was not a layperson acting on her own.  In those circumstances, the Employment Judge was fully entitled to conclude that there was “no reason at all” why the claim form delivered on 16 February could not have contained the correct ACAS certificate number so that it was reasonably practicable for her to have presented the second claim within the requisite time limit.

 

16.              Clearly and cogently as those submissions were advanced by Mr Rushmere, I do not accept them.  The Employment Judge, referred to paragraph 24 of Sterling, where Langstaff J said:

“24. An argument that it was not reasonably practicable would actually have been quite difficult in this case because the Claimant had actually submitted a form in time save only for the fact that she had misplaced or misrecorded the numbers on it, so the Tribunal thought. … it observed … that this was not a case in which there was no fault on behalf of the Claimant.  The fault might not be great, but it was her responsibility … to make sure that the right conciliation number was used and that that was what the Tribunal had concluded had not occurred.  It was thus entitled to come to the conclusion it did … that the “not reasonably practicable extension” did not apply.”

 

In reliance on that reasoning at paragraph 18, read as fairly as it can be, the Employment Judge focused on the first claim without any reference to the circumstances relevant to the second claim.  She referred to the fact that the Claimant had instructed solicitors, to the fact that they together delivered a claim form on 16 February and to the fact that there was no reason why that form could not have contained the correct ACAS certificate number, which was in her possession and in respect of which it was her responsibility to correctly transpose onto the form.  Those were all perfectly correct observations to make and factors that could have quite properly led to the conclusion that it was perfectly practicable to present the first complaint in time.  The question, however, was whether she was entitled to treat that as governing the question whether the second claim was presented in time.  In effect the Employment Judge treated the fact that the first complaint was presented in time (albeit on a defective basis) as excluding the possibility of finding it was not reasonably practicable to present a second claim in time.  That question was addressed in Software Box by Langstaff J at paragraph 41, where he held that the fact that a complaint was made within time and then rejected does not as a matter of principle preclude the consideration of whether a second claim traversing the same ground is one in which the Tribunal should have jurisdiction.

 

17.              I agree.  It is trite law that the question of what is or is not reasonably practicable is a question of fact for the Employment Tribunal.  It was considered in Wall’s Meat Co Ltd v Khan [1979] ICR 52 by Brandon LJ in the following terms:

“… 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 … 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 the 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 enquiries 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.” (Pages 60F-61A)

 

18.              The focus is accordingly on the Claimant’s state of mind viewed objectively.  The Employment Judge did not focus on the second claim and did not simply use the first claim as a guiding light in determining the factual questions she had to determine in relation to the second claim.  Had she done so, a number of matters could and would have been considered.  First, having lodged the first claim on 16 February 2015 believing it to be complete and correct, the Claimant would have had no reason to lodge the second claim on that date.  Secondly, the Claimant cannot have been aware of the mistake she made in transposing the certificate number until after the limitation period expired because had she become aware of it, for example on 16 February when she was in the process of presenting the complaint, she would have corrected it.  Moreover, in the period between 16 and 19 February she laboured under the mistaken belief that the first claim had been correctly presented without any defect.  Those are the reasons why the second claim was not presented until 19 February, but none of those points appear in the Employment Judge’s consideration.

 

19.              The question for the Tribunal, in those circumstances, was not whether the mistake she originally made on 16 February was a reasonable one but whether her mistaken belief that she had correctly presented the first claim on time and did not therefore need to put in a second claim was reasonable having regard to all the facts and all the circumstances.  In that regard, it seems to me, it must be assumed that the Claimant’s error was genuine and unintentional.  Further, as I have already indicated, it must be assumed that she was altogether unaware of the error since had she been aware of it no doubt she would not have made it or it would have been corrected.

 

20.              Moreover, as Mr Sankey submits, the inclusion of an ACAS early conciliation number as a necessary condition of a claim being properly presented is not one that would necessarily be obvious to a Claimant, nor is it immediately obvious that a simple slip in transposing the certificate number onto the form would render the claim form defective in its entirety.  I have already referred to the escape route provided by Rule 12(2A) in respect of minor errors in relation to transposing names or addresses of the Claimant and Respondent by reference to the early conciliation certificates, and it is not immediately obvious to me that there is any distinction of substance between errors in relation to the name and address and errors in relation to the certificate numbers themselves.  Those are factors that reflect on the degree to which the Claimant was at fault in making the error and then in failing to appreciate that the error had been made.  The Employment Judge was entitled to have regard to those factors and if she had been considering the second claim and the facts and circumstances surrounding the second claim there would have been some reference at least to those features.

21.              Equally, it seems to me, although Mr Sankey argued the contrary, the Employment Judge was entitled to have regard to the fact that the Claimant left it very late to present the first claim and had she sought to present it earlier any error or defect in it might have been capable of being rectified within the primary limitation period.  There may be rational reasons why she left it late.  Mr Sankey suggested that there may be cases where a late internal appeal is being completed or settlement discussions are ongoing, which would be rational reasons for leaving the presentation of a claim to the end of the limitation period.  There may be other reasons.  He maintains, and I accept, that it is a three-month limitation period and a complainant is entitled to have the whole of that three-month limitation period so that any claim lodged at the end of the period is just as valid as a claim lodged much earlier.  That is so, but leaving the claim to be lodged at the end of the period risks potentially serious consequences.  Those are factors that a Tribunal is entitled to have regard to in determining what was reasonably practicable in any particular case.  None of those considerations appear in the Employment Judge’s reasons at paragraph 18.  The Employment Judge did focus on the first claim to the exclusion of the second claim and in that regard she erred in law so that her decision on the question whether it was reasonably practicable to present the second claim in time cannot stand.

 

The Just and Equitable Discretion

22.              The second ground seeks to challenge the Tribunal’s decision in relation to the just and equitable discretion.  It is common ground that the discretion to extend time on a just and equitable basis is a wide discretion and broader than that available under the “not reasonably practicable” route.  Nevertheless, the onus is on a Claimant to convince a Tribunal that it is just and equitable for the time limit to be extended, and appeals to the Employment Appeal Tribunal will not result in any interference with the exercise of such a discretion save in rare circumstances where it is demonstrated that the Tribunal took into account irrelevant considerations, failed to take account of material considerations, misapplied the law, or reached a decision that no Tribunal properly directing itself could have reached.  It is also common ground that the checklist of factors identified in section 33 of the Limitation Act 1980 is a useful guide of factors likely to be relevant for Tribunals dealing with the exercise of this discretion, but a Tribunal will not make an error of law by failing to consider the matters listed in section 33 provided that no materially relevant consideration is left out of account: see London Borough of Southwark v Afolabi [2003] ICR 800, endorsed in Governing Body of St Albans Girls’ School v Neary [2010] IRLR 124.  So, provided all relevant factors are considered and addressed by a Tribunal - no single factor being determinative - the Tribunal will not be held to have erred.

 

23.              Mr Sankey contends that the Employment Judge left out a material factor in exercising her discretion, namely the balance of prejudice between the parties and in particular the prejudice to the Claimant.  He submits when one looks at paragraphs 19 to 22 there is no reference whatever to the significant prejudice to the Claimant, who as a consequence of the two-day delay, which he submits had no effect on the cogency of the evidence or the ability to have a fair trial on the merits of the case, would be deprived altogether of her right to bring this claim.

 

24.              Mr Rushmere accepts that prejudice is a relevant factor.  He submits that it is implicit in the Tribunal’s Reasons that the question of prejudice to both parties was properly addressed.  He points first to paragraph 19, where the Employment Judge addressed the cogency of the evidence, then to paragraph 20 and 21, where she addressed the reasons for the delay,  recognising that there was a long delay of months between earlier complaints about matters occurring in the course of employment and the date of dismissal, all said to be a continuing act, but any one of those acts of discrimination including the act of dismissal might not be held established so that the delay between the earlier acts and the date when the Claimant presented her claim form might affect the cogency of the evidence.  He then points to paragraph 22, where the Judge said:

“22. Having considered all the matters, I was not satisfied that it would be just and equitable to permit the race discrimination claim to proceed …”

 

He submits that reference to “all the matters” is implicitly a reference to any prejudice to the Claimant.

 

25.              I do not accept Mr Rushmere’s submission that the Employment Judge addressed the question of prejudice to the Claimant.  The reference to “all the matters” is a reference to the matters that the Employment Judge dealt with expressly at paragraphs 19 to 21, and I cannot read into those words that she was recognising and addressing the prejudice to the Claimant here.  Moreover, as Mr Rushmere fairly accepted in the course of argument, in fact no prejudice was suffered by the Respondent by reason of the two-day delay in presenting the claim, despite what the Tribunal said at paragraph 19 about the impact on the cogency of the evidence and the ability of the Respondent to defend itself if the dismissal claim was held not to be an act of race discrimination.  That impact would be the same impact as would have been felt if the claim had been presented two days earlier and in time, so that the Tribunal was not here addressing the extent to which the cogency of the evidence was affected by the two day delay in presenting her claim on 19 February, but by reference to more general delay. 

 

26.              Moreover, even so far as that is concerned, Mr Rushmere accepts that could have had only minimal weight in context since this is a case where the Respondent carried out a full grievance investigation into those earlier matters, all of which was documented.  The events in question and the reasons for challenged treatment were investigated and considered in the course of that grievance so that the evidence, memories of witnesses  and the ability to have a fair trial in relation to those matters were unlikely to be adversely affected by the delay.

 

27.              The balance of prejudice is plainly a material factor and was a significant factor in this case.  It was not a factor to which the Employment Judge had regard.  To the extent that there was some consideration of prejudice to the Respondent, it was addressed by reference to irrelevant matters and not by reference to prejudice caused by the Claimant’s short delay.  The question of prejudice is significant, because, on the one hand, the Claimant has lost the right to bring a discrimination claim on its merits in the circumstances described and, on the other, the short delay caused no actual prejudice to the Respondent in conducting its defence of the claim, apart from the prejudice in having to defend the claim on its merits.

 

28.              The failure to take into account a significant factor in the exercise of this discretion is an error of law, and vitiates the Tribunal’s decision that it was not just and equitable to extend time in this case.  The result is that both decisions cannot stand.

 

Disposal

29.              The parties invite me to decide the two questions at issue myself (pursuant to powers available under the Employment Tribunals Act 1996, section 35(1)), rather than remit the matter to a fresh Tribunal, it being common ground that this would otherwise be more appropriate than sending the matter back to Employment Judge Grewal.  That is a proportionate course to adopt and is in accordance with the overriding objective in this case.

 

30.              Focusing on the second claim, the following points, to which I referred earlier, are relevant:

(i)      I am quite satisfied in light of the findings and circumstances, that when the Claimant lodged her first claim, on 16 February 2015, she had no reason to believe that it contained the defect that it did.  Had she become aware of that defect either when transposing the conciliation certificate number or at any time after, I have little doubt that she would have done something about it given that she attended on 16 February and immediately on notification of the defect, again on 19 February.  I accept, therefore, that in the period between 16 and 19 February the Claimant was proceeding in the mistaken belief that the first claim had been properly presented.  She may have been comforted by the fact that she was accompanied by a solicitor when she completed the form in having that belief, so that contrary to the position advanced by Mr Rushmere it seems to me that the belief she held between 16 and 19 February - which was in fact a mistaken belief - may have in part been formed on the basis of the comfort of having solicitors’ advice.  Whilst it might not have been reasonable to make the mistake in completing the form that she did, in the absence of any evidence to the contrary, I accept that it was a genuine and unintentional mistake and that the Claimant, was altogether unaware of that mistake until notified of it on 19 February. 

(ii)     I accept that an error in transposing the certificate number onto the form is not something that she would necessarily have been focused on to the same degree as other (on the face of it) more critical matters such as ensuring that her name, the Respondent’s name and the addresses were correctly reflected on the form together with the appropriate claims she wished to make, some of which raised issues of some complexity.  Her failure to appreciate that she had made an error is more understandable in the circumstances. 

(iii)    Against that I balance the fact that she could and perhaps should have presented her first claim earlier to cater for the possibility that a defect or problem could then have been rectified in a timely fashion.

 

31.              Having considered all of these matters and having accepted that the Claimant was labouring under a misunderstanding about the correctness of her first claim at all times until she presented her second claim, it seems to me that her misunderstanding was genuine and reasonable in the circumstances.  That was the impediment to her presenting the second claim on time.  Accordingly, I am persuaded on balance, that it was not reasonably practicable for her to present that second claim in time.  She presented the second claim two days late, but she acted promptly and on the same day as she was notified of the defect.  In my judgment, she acted within a reasonable period, and, accordingly, time should be and is extended in respect of the unfair dismissal claim.

 

32.              So far as the discrimination claim is concerned, there is no presumption that time should be extended.  Time limits are strictly exercised in employment cases.  Nevertheless, the delay in this case is short, and the reasons for it are as I have explained.  The critical factor is prejudice.  The Claimant will be deprived of any avenue for making her complaint of unlawful race discrimination by reason of a minor error in the transposition of the early conciliation certificate number, which itself caused no prejudice to the Respondent.  I accept Mr Rushmere’s point that the Respondent will now have to defend itself and be put to the cost of defending itself in respect of this claim, but since time has been extended in respect of the unfair dismissal claim the Respondent will be put to that cost in any event so that it seems to me ultimately that the balance of prejudice is all one way in this case.  In those circumstances, I have concluded that it is also just and equitable to extend time for the presentation of the unlawful discrimination claims.

 

33.              It follows that these proceedings will be remitted to the Employment Tribunal and will continue as claims of unfair dismissal and unlawful race discrimination to take their normal course.  It remains only for me to thank the parties’ representatives in this case for their realistic, helpful submissions that have focused on the issues and enabled this appeal to be conducted so more swiftly than would otherwise have been the case.