Appeal No. UKEAT/0148/07/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 June 2007

Before
HIS HONOUR JUDGE BURKE QC

(SITTING ALONE)

OCTOPUS JEWELLERY LTD	APPELLANT

MISS D J STEPHENSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DUNCALF
(The Appellant in Person)	
For the Respondent	MR GUL KHAN
(Employment Specialist Support Officer)
National Association of Citizens Advice Bureaux
The Development Centre
Coxwell Avenue
Wolverhampton Science Park
Wolverhampton
WV10 9RT	

SUMMARY

Time limits - Reasonable practicability 
Practice and Procedure - Perversity

The Employment Tribunal found that the employee had been dismissed with an effective date of termination of 11 April 2006.  The ET1 was presented out of time on 12 July 2006; but the Tribunal found that it was not reasonably practicable for the employee to have presented her ET1 in time because both she and the CAB who advised her understandably misunderstood the effective date of termination as a result of ambiguous language used by the employer.

Held on the employers’ appeal
1)	that documents which arguably showed that the employee was not misled as to the effective date of termination had not been put before the Tribunal and could not be introduced as new evidence on appeal

2)	that the Tribunal had reached a decision of fact which was open to it and not perverse 

HIS HONOUR JUDGE BURKE QC

The Issues

1.	This is an appeal by the employers, Octopus Jewellery Ltd, against the decision made at a pre-hearing review by the Employment Tribunal sitting at Towyn in North Wales, in the person of Ms Cox as Chairman, sitting alone, and sent to the parties with written reasons on 18 January 2007.  By that decision the Tribunal concluded that it had jurisdiction to hear the claims of the employee, Ms Stephenson, that she had been unfairly dismissed, and that she was owed £500 which had been wrongly deducted from her earnings.  The Tribunal treated this latter claim for the purpose of the hearing before them as a contract claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.  It could also have been treated as a wrongful deduction claim made under section 23 of the Employment Rights Act 1996;  but no practical difference for present purposes would have resulted from so treating it.

2.	The issues which the Chairman had to decide were, firstly, whether the claim form which was received by the Employment Tribunal on 12 July 2006 was presented within the 3 month period beginning with the effective date of termination of Ms Stephenson’s employment, specified as the prima facie time limit by section 111(2b) of the 1996 Act and by paragraph 8 of the Extension of Jurisdiction Order; and, if not, whether it was not reasonably practicable for the claim form to be presented within that period and, if so, whether it was presented within such further period as the Tribunal considered reasonable.  

3.	Octopus Jewellery is a small company.  It was represented before the Tribunal by Mrs Duncalf, who has also appeared before me on behalf of the company that she and her husband run.  Indeed they have today made something of a team, although Mrs Duncalf has taken the lead role.  When Mr and Mrs Duncalf attended the Tribunal on the date of the pre-hearing review, Mrs Duncalf has told me today that they did not expect that they were going to be dealing with a contentious hearing and a decision, as opposed to a discussion as to how Ms Stephenson’s claims were to proceed.  Although it seems that the Tribunal had at some stage sent out a letter to the parties informing them that there was a time issue which would have to be resolved before the substantive hearing, Mrs Duncalf tells me that Octopus Ltd did not receive that letter.  Whether that is so or not does not really matter for present purposes, because Mrs Duncalf frankly tells me that she did not, on behalf of Octopus Ltd, make an application for an adjournment or protest against the continuation of the hearing which plainly was intended for that day, but, to her credit, got on with it; and the hearing took place.  

4.	The Chairman heard evidence from Mrs Duncalf and from Ms Stephenson.  She found against Ms Stephenson on the first issue, the issue as to whether the claim form had been presented within the prima facie time limit, but for her on the second issue.  Thus the Tribunal decided that there was jurisdiction to hear the claims. 

The Facts and the Tribunal’s Decision

5.	The facts, insofar as they are relevant for present purposes, as found by the Tribunal can be swiftly set out.  Ms Stephenson was called in to see Mr Duncalf on 11 April 2006.  She was given a letter which explained that her employment was being brought to an end and put forward as the reason a shortfall in her achievements as a sales representative.  The letter said,

“We have recently been reviewing the sales figures in all areas in which we employ a representative in order to determine the profitability.  The figures show that your area is now considerably below our agreed target figure.  Furthermore, the customer base has been substantially reduced which shows the prospect of very little new business.  The reduced figures in your area make it impossible for the company to support a representative with all the expenses that the job entails.  We therefore have no alternative and regret that we must terminate your employment as a representative of Octopus Jewellery Ltd.  You shall of course receive your due salary on 15 April which gives settlement until the end of April and includes your holiday pay entitlement.”
Then reference is made to the contract of employment.  

6.	Ms Stephenson did not work after that day.  On 13 April, Ms Stephenson was sent her P45 which gave her leaving date as 11 April and a letter which referred to figures and said, “please note that you have been paid up to the end of the month in lieu of notice”.  The Tribunal found that she was in fact paid, on 15 April, 2 weeks’ money, one week said to be a week’s holiday pay and the other being a week in lieu of notice.  Mrs Duncalf tells me today that the notice money consisted of more than one week’s pay and represented such sum as would, together with one week’s holiday pay, have represented pay from 11 April up to the end of the month.  She tells me that the payment was made on 15 April because all employees were paid in the middle of the month.  I feel bound to say that there was some ambiguity about the way in which the make-up of the money was being described to me;  but it is more important, for I am not here to decide facts, that the Tribunal found as fact at paragraph 11 that Ms Stephenson knew or believed that she had been paid one week’s notice pay and a week’s holiday pay.  I have certainly not been shown any figures or calculations that demonstrate that the Chairman could not have so decided.  That is of some importance because what the Chairman found was that Ms Stephenson had received those monies worked back from the end of April to 16 or 15 April (it makes no difference when) and thus believed that she had been dismissed effectively on 15 April.  That is the date of termination which Ms Stephenson put forward in her claim form.  If that had indeed been the effective date of termination of her contract of employment, her claim form was in time.  

7.	However the Chairman, who regarded both letters of 11 and 13 April as ambiguous, concluded that, nevertheless, Ms Stephenson’s employment was terminated forthwith on 11 April and, therefore, that the claim form was presented two days late, presented as it was on 12 July although the last date was 10 July.  That resolution of the first issue before the Chairman is not the subject of any cross-appeal.  Mr Khan on behalf of Ms Stephenson referred me to the decision of the Employment Appeal Tribunal, presided over by Mr Justice Brown Wilkinson in Chapman v Letheby & Christopher Ltd [1981] IRLR 440, EAT, which sets out guidance as to how dismissal letters which are ambiguous should be construed;  but in the absence of any cross-appeal it does not seem to me that it is necessary for me to consider Chapman any further or to consider, had there been a cross-appeal, whether Chapman might have been prayed in aid of it.  I should record, because Mrs Duncalf has made the point to me more than once, that in the claim form Ms Stephenson appears to have been saying that she did not receive one statutory week’s notice on payment in lieu of notice.  Whether she meant by that that she had never received it, or whether she meant when she was told to go on 11 April she was not given it I cannot say;  but it would certainly be wrong for me not to record Mrs Duncalf’s point.  There is, however, no doubt that the Chairman found that Ms Stephenson knew, when she came to try to work out what the effective date of termination was, that she had been given by that time a week’s notice pay and a week’s holiday pay.

8.	Having determined the first issue against Ms Stephenson, the Chairman went on to consider the second issue.  She started that task by expressly and correctly referring to the terms of section 111(2b) of the 1996 Act and article 7 of the Extension of Jurisdiction Order; so she was fully aware of and had at the forefront of her mind the correct test.  She found, firstly, that Ms Stephenson genuinely believed that the effective date of termination was a later date than 11 April;  see paragraph 10.  She so believed at least partly because she went to take advice from the local CAB;  and the CAB appears to have come to the conclusion that the effective date of termination was, indeed, 16 April and not 11 April.  The Chairman found that that belief arose from the ambiguity of the letters to which I have referred and that, although that belief was a mistaken belief, it was a belief which it was a reasonable one for both the Claimant and the CAB to hold in the circumstances;  see paragraph 11.  At paragraph 12 the Chairman said that the letters suggested that Ms Stephenson was being paid to the end of the month and it seemed to her that this was confirmed by the payment she received on 15 April, those payments amounting, so the Chairman found, to two week’s money in a situation in which she had been told she would be paid up until the end of April i.e. 30 April.

9.	At paragraphs 13 and 14 the Chairman said:-
“13.	
If I ask myself what was the substantial cause of the Claimant’s failure to comply with the statutory time limit, I conclude that it was her misunderstanding about her termination date and that this misunderstanding was due to the ambiguous language used in the Respondent’s letters to her about the end of her employment with them.
14.	
In view of the Respondent’s letters giving rise to an understandable misapprehension in the mind of the Claimant and her adviser as to the correct time limit, I am allowing her claim to proceed.  Such was the uncertainty over the date her employment ended that it could not have been feasible for her to ascertain precisely when her employment came to an end and , as a result, from when the three month time limit ran.”

The First Ground – New Evidence 

10.	The first ground put forward by Mrs Duncalf in support of this appeal is that, in a letter dated 21 April 2006 which was not put in evidence before the Chairman, Ms Stephenson used the expression, “on termination of my employment on 11 April 2006”.  Mrs Duncalf submits that therein lies strong, indeed conclusive evidence, as she would put it, that Ms Stephenson had not made a genuine mistake but knew full well that her employment ended on that date.  She further submits in her Skeleton Argument that the Chairman indirectly did not allow the letter of 21 April to be put in evidence.  When Mr and Mrs Duncalf saw the Chairman’s reasons for the decision and appreciated the potential impact of the letter of 21 April as they understood it, they applied for a review.  The Chairman rejected that application.  There has been no appeal against that rejection.  Accordingly the position today before me is that, unless an application to put the letter in as fresh evidence on appeal succeeds, I cannot formally pay heed to it.  It is clear from correspondence that Mrs Duncalf asked the EAT for permission to put in that letter in this appeal.  At first she was refused permission on the basis that it seemed that the grounds for the admission of new evidence, as set out in paragraph 8 of the EAT Practice Direction of 2004, were not met;  but she was invited to reconsider, and she did write to the EAT again, setting out her grounds.  She received, regrettably, no response to that letter. Thus her application, as renewed by that letter, remained unanswered and remains for me to decide.  

11.	Mr Khan, from the special support unit of the CAB, a unit which did not act for or advise Ms Stephenson at the material time but became involved only after the Chairman’s decision, has objected to my seeing the document, although he knows, of course, that I know what are the relevant words which it contains and on which Mrs Duncalf wished to rely.  His objection is that the letter is not material which could not have been obtained with reasonable diligence for use of the hearing before the Tribunal;  and the basis of that objection is the following facts which are not in dispute.  What happened at the Tribunal was this:  the Chairman was anxious to ensure that no material was put before her which related to the substantive dispute between the parties, as opposed to the issue as to what was the effective date of termination and the second issue, namely whether Ms Stephenson fell within what is familiarly called in the authorities the escape clause.  The letter of 21 April contains much material about what was in issue between the parties in terms of the substantive issues;  and, as Mrs Duncalf frankly states in her Skeleton Argument and has repeated to me today with equal frankness, she and her husband did not realise that within the whole of the letter was one part which, as she now sees, bears on the issue of the genuineness of the asserted mistake as to the effective date of termination and, indeed whether there was a mistake at all.  Therefore Mrs Duncalf did not ask the Chairman to receive that letter in evidence;  and it was not put before the Chairman.  

12.	There is another document which is a document of authority from Ms Stephenson to the CAB or some similar document which falls within the same category, namely that although it was available to Mrs Duncalf at the hearing it was not put before the Chairman.  

13.	The Chairman cannot be blamed in any way for the fact that neither the letter of 21 April nor the other document was put before her.  She did not know that they contained anything which might be relevant to the issues which she had to decide.  Although I understand why Mrs Duncalf says that the Chairman indirectly did not allow the submission of the letter of 21 April, the reality is that she was not asked either directly or indirectly to consider it.  She knew nothing about it;  and, alas, Mr and Mrs Duncalf, saddled with a hearing they had not expected and without representation, had not appreciated that there might be some importance to the issues which the Chairman there and then decided in the letter of 21 April or in the other document.  Thus there can be no attack upon the Chairman’s decision based on the non-admission in evidence of that letter or the relevant part of it, or indeed of the other document.  

14.	What about the application to me?  Whilst I am always concerned to be as fair and reasonable as I can be to litigants in person, it seems to me to be absolutely clear that this is not a case in which the documents that Mrs Duncalf now wishes me to see, particularly the letter of 21 April, could possibly come within the category of documents which could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing.  The reality is that they were there and available for use.  It would in my judgment be an erroneous exercise of my discretion were I to allow either document to go before me on the hearing of this appeal.  I indicated, earlier during the course of argument, that I would so rule;  and I said I would give my reasons later, as I have done.  I simply do not see how, in justice to both parties, I could look now at evidence which was not put to the Tribunal in the circumstances which I have described.  
15.	However, as I have already indicated, I do know, although I must put it out of my mind, what the relevant part of the letter of 21 April on which Mrs Duncalf seeks to rely actually says, because it is set out in the Skeleton Argument.  I feel bound to say by way of consolation to Mr and Mrs Duncalf that the words on which they seek to rely in that letter are not as powerful as they believe.  Ms Stephenson was not a lawyer.  If she used the words “termination’ of my employment on 11 April 2006”, in the context it would be wrong, I would have thought, to take that as an admission or an acceptance by her that the effect date of termination was 11 April as opposed to that being the day on which she was told that her employment was being terminated.  Employees can be told that their employment has been terminated without it being clear whether it has been terminated forthwith or terminated on notice;  or it may be clear that it has been terminated forthwith or on notice – in either case it is terminated.  So I strongly suspect that, even if that letter were formally before me, it would probably not have had an important influence on this appeal;  and it would not, if it had gone in, have had an important influence on the hearing before the Chairman.  However for the reasons I have set out I cannot take it or the other document into account 

The Second and Third Grounds – Perversity

16.	The second ground which Mrs Duncalf puts forward is that the Tribunal did not refer to the fact that the ET1 is dated 4 July 2006.  Mrs Duncalf’s submission is that, if the ET1 were completed by that date, it could have easily been presented in time i.e. by 10 July.  However, it was not in doubt that Ms Stephenson could physically have put in her claim form by 10 July.  Her case was that it was not reasonably practicable for her to have done so because she and her advisors both genuinely and reasonably believed that it was unnecessary to do so and that it would be sufficient if it was put in on the date on which it was put in.  As the Tribunal found, they had made a genuine and reasonable mistake as to the time limit.  No doubt, absent that mistake, the claim form would have been presented in time.

17.	As a freestanding point, the argument based on the date of the claim form does not succeed in undermining the Tribunal’s decision.  However, it is relevant to the third ground on which this appeal is advanced, namely the Tribunal’s decision that it was not reasonably practicable to put in the claim form in time was perverse.

18.	Mrs Duncalf rightly submits that a Claimant has a high hurdle to clear if he or she is to bring himself or herself within the escape clause;  and she submits that, on the facts of this case,  Ms Stephenson came nowhere near clearing that hurdle.  She submits that there could not have been a mistake on 11 April; she was told that her employment was finished; she left and never came back.  Her P45 referred to her leaving date as 11 April.  Although the claim form refers to 15 April, inferentially the suggestion is that that is because Ms Stephenson was out of time, knew she was out of time and adapted the dates when she really knew that her employment had ended on 11 April and could have had no other genuine belief.  

19.	Mrs Duncalf relies on the decision of the Employment Appeal Tribunal in the person of Lady Smith, sitting alone, in the Royal Bank of Scotland Plc v J Theobald [2007] UKEAT/0444/06, EAT.  

20.	I agree that an employee has a high hurdle to clear if he or she is to come within the escape clause;  but the Tribunal found that Ms Stephenson had taken advice from the CAB and that the CAB had themselves also reasonably made a mistake based on the ambiguity of the letters.  This is not a case in which the CAB were responsible in full for the presentation or processing of Ms Stephenson’s claim.  The finding is that she went to them and received advice;  and I have already referred to the fact that the special support unit, which is a central unit of the CAB, were not involved until later.  I mention that because Mrs Duncalf suggests to the contrary in her Skeleton Argument but has not sought to counter Mr Khan’s account of how the special support unit actually became involved and that all the CAB did, as the Tribunal found, was to give advice.  

21.	In Theobald, the Claimant had been to the CAB and had been advised that, before he could present his application to the Tribunal, he must complete all internal appeal procedures.  That advice was wrong.  The internal appeal procedures were completed on 9 February, the effective date of termination was 11 November so there were still one or two days after the completion of those procedures in which the employee could have presented the claim form.  The Tribunal found that it was not reasonably practicable for him to have presented his claim form in time.  On appeal, that decision was reversed, but it was reversed on narrow grounds.

22.	The Employment Appeal Tribunal considered in some detail the considerable and well-known chain of authority, starting with Dedman v British Building and Engineering Appliances [1974] ICR, which deals with the relationship between the escape clause and mistakes made by those who are advising or acting for a Claimant.  At paragraphs 23 to 28 the EAT set out, firstly, that, in the Marks & Spencer case, the Master of the Rolls had said that, in circumstances where the employee had retained a solicitor to act for him and failed to meet the time limit because of the solicitor’s negligence, it was clear that the advisor’s fault would defeat any attempt to bring the employee within the escape clause, but that it was not the case that an employee could never pray in aid that it was not reasonably practicable for him to have presented a claim within the time limit where he had been misled by the CAB.  Such a case would turn on the particular facts and circumstances (see paragraph 24 and 25).  At paragraph 26, the point is made that there is no rule but the CAB should always be regarded as a skilled advisor comparable to a solicitor.  At paragraphs 27 to 28, the point is made that there is a distinction between a case of a Claimant who seeks advice and then relies on mistaken advice, and a case of a Claimant who retains a skilled advisor to process his claim.  The appeal was allowed because the Tribunal had not taken into account that there was time for the claim to have been presented after the internal appeal procedures had been exhausted and before the time limit expired.

23.	 In the present case, the Chairman found that the CAB had advised Ms Stephenson;  but there was no finding that they had taken over the process of the presentation of the claim;  and no such suggestion has been made.  There is no suggestion that the CAB were dealing with a matter other than at a local level;  and it was, in my judgment, plainly open to the Tribunal in those circumstances on the basis of the authorities (although it is not suggested that the Chairman had Theobald before her at the time, and I suspect that she did not) to find, in light of the advice coming from the CAB, that Ms Stephenson was not fixed with the CAB’s  mistake and open to the Tribunal to conclude that both Ms Stephenson and the CAB, but particularly Ms Stephenson, as a result of what the CAB said, were operating under a genuine and reasonable mistake.  It was accordingly, on the authorities, open to the Tribunal to find that it was not reasonably practicable, or to use the feasibility test which in paragraph 14 of the judgment the Chairman used (deriving it no doubt from her knowledge of the case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, CA although that decision is not expressly referred to) that it could not have been feasible for Ms Stephenson to ascertain precisely when her employment ended.

24.	In Palmer and Saunders, at paragraph 35 the Court of Appeal emphasised that the answer to the relevant question in cases such as this is pre-eminently an issue of fact and that is must be seldom that an appeal from a decision such as that at present appealed from will lie.  At the conclusion of paragraph 35, the Court of Appeal said that it would be relevant in most cases for the Tribunal to ask whether there had been any substantial fault on the part of the employee or his advisor.  It is plain that the Chairman did ask herself whether there had been any substantial fault.  She came to the conclusion that there was not, because there was a genuine and reasonable mistake.  That being so, it was open to her to reach the conclusion that she did.  

25.	Of course, I appreciate that Mr and Mrs Duncalf assert that that was a perverse conclusion;  but it was not one which was unsupported by evidence;  it was one which another Tribunal might have decided a different way on the same or similar facts;  but in order to satisfy me that perversity has been established, it is necessary for Mr and Mrs Duncalf to show me that the finding of fact which was made has been overwhelmingly demonstrated as being one which no reasonable Tribunal could make.  That is the law as laid down by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634.  For the reasons I have set out, there was ample material on which the Tribunal could base the decision which it reached on the issue.  It was not a decision which has been shown to be perverse;  and it is not one which can be successfully attacked in this appeal.  

26.	For those reasons this appeal is dismissed.