|At the Tribunal|
|On 7 December 2017|
THE HONOURABLE MRS JUSTICE SLADE DBE
Transcript of Proceedings
|For the Appellant||MS BARBARA ZEITLER
Bar Pro Bono Scheme
|For the Respondent||MR CHARLES BOURNE
(One of Her Majesty's Counsel)
MS JENNIFER SEAMAN
Government Legal Department
One Kemble Street
JURISDICTIONAL POINTS - Extension of time: just and equitable
The Claimant was a part-time fee-paid judicial office holder who claimed a pension following the litigation in O'Brien v Ministry of Justice. His claim was presented more than five years out of time. In deciding whether it is just and equitable to extend time for bringing a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 the Employment Judge erred in treating as conclusive, in holding to be unreasonable delay after the Claimant first learned of the possibility of bringing a claim, his view that solicitors were not negligent when advising in 2011 that his claim would be out of time. The Claimant had not been advised that he could apply to have the time limit extended on just and equitable grounds. The Employment Judge erred in failing to decide whether such ignorance was the or a reason for the delay and having regard to the advice from the solicitors whether such ignorance was reasonable (Averns v Stagecoach UKEAT/0065/08 considered). Further, the Employment Judge erred, as he had in Bowden v Ministry of Justice UKEAT/0018/17, in relying on his decision in Miller v Ministry of Justice to dismiss the application when there were material differences between the facts relevant to the Claimant and those whose applications for an extension of time were dismissed in Miller. Appeal allowed. Application remitted to a differently constituted Employment Tribunal.
THE HONOURABLE MRS JUSTICE SLADE DBE
"(2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months (or, in a case to which regulation 13 applies, six months) beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.
(3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
Outline Relevant Facts
"3. … The whole of his [the Claimant's] argument that it would be just and equitable to extend the time, centres around an intervening event in the late summer or early autumn of 2011. …"
That event was receipt of a communication from the SSCSA fee-paid Tribunal Judges/LQPN pensions group dated August 2011. The communication referred to the case of O'Brien v Ministry of Justice stating that it was understood that pending the outcome of the appeal in the Supreme Court after a reference back from the Court of Justice of the European Community:
"… any fee-paid tribunal judge approaching retirement who wishes to apply for a judicial pension should issue protective proceedings in the Employment Tribunal before retirement or within three months thereafter because any later claim is likely to be out of time."
The communication informed readers that the SSCSA were not able to provide advice but stated that Mr O'Brien's solicitors, Browne Jacobson LLP, offer a fixed fee service to fee-paid Judges who wish to start an action with a view to having it stayed, and at a reduced fee of £63 plus VAT for submission of those who wish to join a multiple group.
"11. Mr Dowokpor may well have had no knowledge of O'Brien until he received the paper from SSCSA fee-paid Tribunal Judges at a date towards the end of August 2011 but it looks as though he delayed possibly a month before doing anything about it. …"
"you have not retired as a judge or you retired on or after 1 July 2011."
The fee for those who satisfied the criteria for inclusion in the multiple claims was £63 plus VAT.
"I note that you retired in July 2007. Unfortunately, it is necessary to make a claim within three months of the date of retirement and, therefore, I regret that I will be unable to progress your claim further.
Thank you very much for your interest in this matter, however, and I return your cheque for £75.60. I apologise that I am unable to assist you further in this matter."
"3. … it may well be that proceedings commenced within a very narrow window after that date, might be either in time or would be eligible to have the time extended on just and equitable grounds. …"
The Claimant commenced proceedings within about fourteen days.
The Judgment of the Employment Judge
"7. … He must have known, if he had paid any attention to the documents that he received, that he was roughly speaking [four] years out of time by the time he instructed Brown[e] Jacobson, a proposition which I think he now accepts. Brown[e] Jacobson were therefore quite clearly and unarguably not negligent when advising him that his claim was out of time and they were in my judgment acting entirely appropriately in returning his money to him. They could have laid themselves open to charges of acting improperly had they taken his money believing the claim to have been hopeless. In their belief that the claim was hopelessly out of time they were entirely justified. That was the law then and it is the law now."
"8. … Mr Dowokpor was about four years out of time with no story to tell to explain why. Mr Robins was six weeks out of time and Ms Miller, three months out of time but with a history of catastrophic health problems. There are obvious differences - Mr Robins and Ms Miller, Brown[e] Jacobson correctly surmised, both had a very real prospect of persuading a Tribunal that it would be just and equitable to extend time. Mr Dowokpor did not."
"10. … There is nothing really in Mr Dowokpor's background between 2007 and 2011 that would allow me to say it is just and equitable to extend time. At paragraphs 46-61 of Miller & Others, I dealt at length with both the law and the principals [sic] to be applied when deciding whether it would be just and equitable to extend time. The Employment Appeal Tribunal has held that my explanation of the law and the principals [sic] and my application of them were correct. I adopt what I said in those earlier proceedings."
The Grounds of Appeal
"48. … where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. …"
Ms Zeitler contended that if ignorance of the right to bring a claim was reasonable, the length of that ignorance causing delay was immaterial. Therefore the EJ erred in distinguishing the case of Mr Robins from that of the Claimant.
1. It is established by Robertson v Bexley Community Centre  IRLR 434 that the burden is on a claimant to show that the time limit for presentation of a claim should be extended on a just and equitable basis.
2. It was emphasised by the Court of Appeal in DCA v Jones  IRLR 128 that all the circumstances of the case are relevant.
3. It is not a requirement for the ET to go through all the matters listed in section 33 of the Limitation Act 1980 (Southwark LBC v Afolabi  ICR 800 at page 811 paragraph 33).
4. If the only reason for delay is a wholly understandable misapprehension of the law, that is relevant (British Coal Corporation v Keeble  IRLR 336 paragraph 23).
5. Reasonable ignorance of the right to bring a claim and mistaken advice may render it just and equitable to extend time (DPP v Marshall  ICR 518).
6. There is a need for legal certainty.
7. The length of delay before bringing a claim is material (Afolabi paragraph 45, Bowden paragraph 45).
"In my judgment the EJ was not required to say more about relative prejudice than he did. It is clear from the last sentence of paragraph 57 that he was alive to the prejudice which the Claimants would suffer if time was not extended, and that he took that into account. He was also entitled to take the view he expressed in paragraph 55 that the Respondent did not have to show specific prejudice."
Counsel contended that the facts relevant to the case of the Claimant did not give rise to special considerations of prejudice.
Discussion and Conclusion
"31. … He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them."
"50. … are a valuable reminder of factors which may be taken into account. Their relevance depends on the facts of the particular case. …"
Those factors include the length of and reasons for the delay, the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action, and the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.
"3. … until he was alerted to its existence by a communication from the SSCSA fee-paid Tribunal Judges/LQPN pensions group, the communication being dated August 2011. …"
"… If you will not be able to fit within one of these multiples, we can still act for you, but claims will have to be individually completed and the fee will be £165 plus VAT."
"I note that you retired in July 2007. Unfortunately, it is necessary to make a claim within three months of the date of retirement and, therefore, I regret that I will be unable to progress your claim further."
His cheque was returned.
"49. … it may in general, be easier for a complainant to avail himself of the "escape clause" on the ground that he was reasonably ignorant of his having a right at all, than on the ground that, knowing of the right, he was reasonably ignorant of the method by which, or the time limit within which, he ought to exercise it."
This approach is also to be applied to the "just and equitable" extension of time to bring discrimination claims. That ETs should consider ignorance of rights as an explanation for delay which they should take into account in deciding whether it is just and equitable to extend time for presenting a complaint of discrimination was explained by Elias P (as he then was) in Averns. The EAT held at paragraph 23 that the ET erred by finding that Mrs Averns had not acted reasonably and promptly without specifically focusing upon her lack of knowledge of her right to bring a claim.
"42. … If he was reasonably ignorant of the law about discriminating against part-time workers, he would surely have a strong case for an extension of time; why should he take advice about a legal right of which he had never heard? …"
"43. In the Claimant's case therefore it was not sufficient for the Employment Judge to say that the Claimant knew he was not receiving a pension and knew that full-time Judges were. He was bound to ask, given that the Claimant said he was ignorant of his right to bring a claim, whether he accepted this was the case and whether he accepted, given the Claimant's circumstances, that his ignorance was reasonable.
44. There is, in my view, no doubt that the Employment Judge fell into error at this point. He said in paragraph 15 that he had decided in Miller that the relevant knowledge is that of the facts which could potentially give rise to the claim not of the existence of a legal right to pursue compensation in respect of those facts. For the reasons I have explained, both kinds of knowledge are relevant and to be taken into account.
45. The Employment Judge, to my mind, relied impermissibly and inappropriately on his earlier decision in Miller. In that case it was in the main sufficient to point out that the generic Claimants knew that full-timers had a pension and they did not, because they also knew about the O'Brien litigation. In this case, where the Claimant did not know about the O'Brien litigation, it was essential to ask whether he knew or ought to have known about the existence of a legal right to claim a pension for part-time service."
"25. … it was right for [the Employment Tribunal] to bear in mind the need for legal certainty and finality in litigation, but that was only one factor to take into account when they had to consider what was just and equitable in all the circumstances."
"40. … So if the failings are those of the solicitor and not the claimant that is highly material … 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."
Referring to this passage in Virdi HH Judge Serota QC in Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust UKEAT/0356/09, 5 January 2010, held at paragraph 32:
"32. … It seems to me as a matter of general principle, where a client places her case in the hands of an adviser who is held out as competent to conduct proceedings on her behalf, I would not expect that such litigant would reasonably be expected to do such things in ordinary circumstances as to issue proceedings herself."
"11. … He did nothing when Brown[e] Jacobson returned his money. He did not start Tribunal proceedings by himself, he did not apparently take the matter any further at all."
"47. … I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant."
In my judgment the EJ erred by failing to take into account not being advised of the possible extension of the time limit for bringing a claim in deciding whether delay after 2011 by the Claimant was explained and reasonable.
"10. … There is nothing really in Mr Dowokpor's background between 2007 and 2011 that would allow me to say it is just and equitable to extend time. At paragraphs 46-61 of Miller & Others, I dealt at length with both the law and the principals [sic] to be applied when deciding whether it would be just and equitable to extend time. The Employment Appeal Tribunal has held that my explanation of the law and the principals [sic] and my application of them were correct. I adopt what I said in those proceedings."
"57. … In an ordinary case the claimants' position on these generic points would be hopeless: all relevant facts were known throughout; no-one was given incorrect legal advice about their prospects of success; the issues were clear and well defined from the outset but none of the claimants who are out of time sought their own legal advice until too late; in general terms the fact of the O'Brien litigation and its progress were known to most judges to a greater or lesser extent at least from 2008; the chances of success may have appeared slight at first but that is a risk attached to almost all litigation of this nature and by the date of reference to the CJEU in July 2010 things were looking up. …"
"45. The Employment Judge, to my mind, relied impermissibly and inappropriately on his earlier decision in Miller. In that case it was in the main sufficient to point out that the generic Claimants knew that full-timers had a pension and they did not, because they also knew about the O'Brien litigation. In this case, where the Claimant did not know about the O'Brien litigation, it was essential to ask whether he knew or ought to have known about the existence of a legal right to claim a pension for part-time service."