Appeal No. UKEAT/0155/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 June 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)

LONDON BOROUGH OF ISLINGTON	APPELLANT

MISS E BROWN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR KEITH BRYANT
(of Counsel)
Instructed by:
London Borough of Islington (Legal Services)
Town Hall
Upper Street
LONDON
N1 2UD	
For the Respondent	MISS E BROWN
(The Respondent in Person)	

SUMMARY

JURISDICTIONAL POINTS - Extension of time: reasonably practicable

Employment Tribunal Judge extended time for an unfair dismissal claim by some eighteen months.  The claimant relied on very severe and lengthy depression as an explanation for the failure but produced no medical evidence.  The evidence was that she had asked her union official to put in her claim but the union had by oversight failed to do so.  The Employment Judge accepted her evidence, notwithstanding the lack of supporting medical evidence, and held that she had reasonably believed that the union would lodge her claim. 

The EAT held that in the Employment Judge had erred in law.  Her trade union had been authorised to lodge the claim and had failed to do so.  On the evidence, she had not merely believed that they would do so, but that was a correct belief.  It could not be said that it was not feasible to put in her claim because the union could have done so.  In addition, the judgment was not Meek compliant in certain respects.  However, in the particular circumstances the Tribunal was entitled to assess her medical state on the basis of her own evidence and without medical evidence. 

Substituting a finding that the claim was not pursued in time.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against the decision of an Employment Judge at a pre-hearing review in which she held that the Tribunal had jurisdiction to hear the claimant’s unfair dismissal claim, notwithstanding that the claim had not been lodged within the requisite time limit.  The Employment Judge concluded that it was not reasonably practicable for the claimant to present her claim in time, and that she had presented a claim within a reasonable period after it had become practicable for her to do so. Accordingly time was extended pursuant to section 111(2) of the Employment Rights Act 1996.

2.	The circumstances of this case are somewhat unusual in that the delay before lodging the claim was very extensive. Ms Brown’s employment terminated with effect from 3 August 2005. Because of the operation of the Disputes (Procedure) Regulations, it is common ground that time to present her claim was extended by three months and the final date by which her claim should have been lodged was 2 February 2006. In fact, however, she did not present her claim until 12 July 2007, almost two years after her dismissal.

The hearing before the Employment Tribunal.
3.	The Tribunal directed itself in accordance with the guidance of the Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] IRLR 119 to the effect that the question is not whether the claimant was reasonably capable physically of presenting the case in time, but rather whether it was reasonably feasible to do so.

4.	The Tribunal’s relevant findings of fact were that the claimant had suffered gynaecological problems and had had a hysterectomy in 2005. Her partner wanted children and so that relationship came to an end. During this period she was regularly absent from work and there was active consideration given to her dismissal from employment. 

5.	On 28 July 2005, which was some two and a half months after her operation, the Council’s occupational health service provided a report on the claimant’s condition. It was recommended that she should embark on a phased return to work and that the position would be reviewed on 1 September. In fact, she was dismissed on 3 August 2005. 

6.	The claimant’s case is that she was devastated by that decision and she became acutely distressed. She described her feelings to the Employment Judge, saying that she was crying all the time and could not sleep; that she was consistently consulting her doctor; was regularly taking heavy doses of anti-depressant medication; and was referred for counselling.

7.	In August 2005 the claimant did have support from her union. They assisted her to appeal against her dismissal. That appeal was due to be held in October 2005 but was put off until 7 November 2005. The appeal was rejected. The claimant then signed a form which she understood to be authorising the union to disclose relevant medical documents to an outside body. The Employment Judge found as a fact that she believed that her union would be presenting her case to the Employment Tribunal. Her health deteriorated further, according to her evidence. She had depression of such severity that it resulted in a nervous breakdown. The Employment Judge observed that he had “no doubt that the depression became more profound in the period following the rejection of the appeal.” 

8.	The Employment Judge found that the claimant did not begin to recover from this depression until the spring of 2007. She described an incident in April/May 2007 when she realised that she had to take her dog for treatment to the vet, which caused her to recognise that she had to break free from her depression. No precise date was identified.

9.	She attempted to make contact with the union but when she did so she found that her claim had never been presented to the Tribunal. She later discovered that the union had indeed accepted that they should have lodged the claim. Two union officers had been involved and each apparently believed that the other had done so. She also found subsequently that the union had referred the matter to solicitors who had taken the view that the claim was not viable, but that does not appear to have been the reason why no claim was lodged.

10.	When the claimant found that no claim had been presented to the tribunal, she made enquiries of the Citizens’ Advice Bureau and sought the possibility of legal representation from FRU and the Pro Bono Unit.  Again the Tribunal does not set out any dates when these steps were taken.  She finally lodged her claim on 12 July 2007, having signed it on the 1 July.

11.	The striking feature of this case is that there was no medical evidence at all to support the claimant’s contentions that it was not feasible for her to present her case because of a debilitating illness. The Employment Judge said, however, that he accepted her evidence about her depressive condition and in the circumstances he concluded that it was not reasonably practicable for her to present her claim because of her illness, and that she had presented it within a reasonable period following her recovery.

The grounds of appeal.
12.	The grounds of appeal are relatively lengthy, but I think they can be encapsulated under three grounds. First, the Tribunal erred in not adequately analysing the relationship between the claimant and her trade union. Had they done so, they could only have concluded that the claim could have been lodged in time.  It is well established that the fault of the union official is to be attributed to the claimant herself: see Times Newspapers Ltd v Regan [1977] IRLR 101.  The claimant had authorised them to lodge her claim and there was no good reason why the union did not do so in time. There was no suggestion that they could not do so.

13.	Second, the Council alleges that the Tribunal could not properly make an assessment of the effect of the illness without medical evidence. This was too specialist an area for the Tribunal simply to accept the claimant’s own assessment at face value.

14.	Third, it is alleged that the Tribunal simply failed to give an adequate explanation for its conclusions and that therefore the decision is not Meek compliant. For example, it has not properly analysed the relationship with the trade union. Then there is no evidence as to precisely what illness the claimant was suffering from, nor did the Tribunal identify the effects of that illness.  There was no assessment as to its effect on her capability of presenting a claim to the Tribunal.  This lack of reasoning is particularly apparent in the conclusion that the claimant had acted reasonably once she became aware of the need to lodge a claim. The Tribunal merely said that she was not well enough “until April or May 2007”. In fact, the claim was not lodged until 12 July 2007. There was no clear finding of what steps she had taken or when, and why such a lengthy delay was justified.  The Tribunal ought to have been particularly careful to analyse this period of delay since it is especially important to act promptly in circumstances where there has already been a significant delay since the expiry of the time limit.

15.	 The claimant, who appeared before me in person, has submitted a lengthy skeleton argument in which she submits that the Tribunal was entitled to reach the view that they did and they had had regard to all the matters which are now being put before me by the Council. She also provides some further explanation of the circumstances relating to her failure to lodge the claim in time. This confirmed much of the evidence recounted by the Tribunal, including the fact that she says that she had felt “badly let down” by her union. She also emphasised, and this is consistent with other evidence, that she had drawn the Tribunal’s attention to the fact that there were medical reports available which she had tried to obtain for the hearing. These had been produced as a result of medical examinations which occurred in the context of her successfully claiming incapacity benefit.  These reports were not available by the date of the Tribunal hearing although she had asked for them some months before.  However, there was no application by the Council for an adjournment to obtain and deal with these reports.

Discussion.
16.	In my judgment, this decision cannot stand. There is one ground on which the appeal must succeed. It is clear that the claimant had authorised the trade union to deal with her case. I do not see how the evidence she has adduced can lead to any other conclusion.  The Tribunal found that she had genuinely believed that the union would put her claim in to the Tribunal. Her own evidence goes further and shows that the union, on her case, has accepted that it did undertake to do that. She had put her case into the union’s hands and they had, on her own evidence, failed to lodge the claim in time because of an internal misunderstanding as to which official should have lodged the claim. (It would no doubt have been desirable had the union given evidence; but in its absence the Tribunal had to reach conclusions on the basis of the evidence it had.)

17.	In those circumstances I do not think it can be said that it was not reasonably practicable for the claim to be lodged in time. The action of the union advisers must be attributed to the claimant herself.  There are a whole series of cases where the actions of solicitors have been attributed to the claimant, starting with the seminal case of Dedman v British Building Engineers and Appliances [1974] ICR 53.  For a recent illustration see Agrico UK Ltd v Ireland EAT S/0024/05.  The EAT has held that the same principle applies to trade union officials in the case of Riley v Tesco Stores, relied upon by the Council, and Syed v Ford Motor Company [1979] IRLR 335. I appreciate that there has been some doubt cast upon the wisdom of a rule which says that a claimant will be bound by the advice of a skilled adviser, even if wrong: see the observations of the Lord Bingham MR in London International College Ltd v Sen [1993] IRLR 333 paras 14-17.  It creates relatively arbitrary distinctions between those who take advice and those who do not, or who take advice from advisers who are not considered to be sufficiently skilled to attract the operation of this rule.   However, the Court of Appeal in Sen felt constrained to follow the earlier authorities and accordingly I take them accurately to state the law. In any event, it seems to me that where the adviser actually undertakes to present the claim and not merely to give advice, and the claimant relies upon the adviser to do so, then the failure of the adviser must be treated as the failure of the claimant.   It was not the claimant’s illness that prevented her from lodging a claim.  I do not by that observation intend to suggest that she was in a fit state personally to present her claim.   But on her own evidence her claim would have been presented in time notwithstanding her illness if the union had done what they said they were going to do. In my judgment, that is conclusive of this case.  Any claim Ms Brown has must be against her union for their failure to present her case in time.

18.	In the circumstances it is not strictly necessary to consider the other grounds of appeal, but having heard argument about them, I will briefly state my conclusions.

19.	I turn to consider the second ground, namely that the Employment Judge was not entitled to reach a view as to the disabling effects of the particular illness merely from the evidence given by the claimant herself.   The Council placed reliance on certain observations of Mr Justice Charles, giving the judgment of the EAT in Barry Controls Ltd v Lawes EAT/1481/00. In that case the claimant lodged an appeal two and a half months after the expiry of the statutory time limit. The Tribunal found that he was suffering from a psychological and physical impediment that made it impossible for him to present his claim until he did so. The EAT also found that there was certain conduct of the employee, accepted by the Tribunal, which was on the face of it wholly inconsistent with the conclusion that he was not able to lodge his claim. In those circumstances the EAT concluded that even an experienced employment tribunal was quite wrong to rely upon their own lay view as to the nature and effect of the medical illness from which the claimant was suffering since it was derived solely from the evidence they had heard from the claimant himself.  Mr Justice Charles said this (para 27):
“…… The conclusion of the Employment Tribunal is a matter of opinion relating to the existence and nature of an illness as to which expert view would be relevant and as the actions of the applicant provided compelling evidence that his illness did not have a continuing effect the Employment Tribunal found and relied upon, they did not have the sound evidential basis for their conclusion in the absence of some expert evidence to support it.”

20.	Mr Bryant, counsel for the Council, submits that there was an analogous situation here.  The claimant had been fit to attend the appeal hearing and to instruct her union representatives with respect to it.  In addition, on her own evidence she had from time to time contacted the union to find out what was happening with her claim.   These facts sit uneasily with the conclusion that she was not personally able to present her claim in time.  In these circumstances, as in Barry Controls, the Tribunal ought to have adjourned the case to consider the medical evidence, even although neither party sought it.

21.	  I have found this a difficult point but on balance I have concluded that in the particular circumstances of this case it cannot be said that it was an error of law for the Tribunal to reach its decision on the effects of this illness simply from the claimant’s evidence alone.  I am not satisfied that there is a fundamental discrepancy between the Tribunal’s conclusion that the claimant was not able to present her case after the internal appeal, and the fact that she had been personally involved in pursuing the appeal.  The Tribunal found that she had deteriorated significantly immediately following the appeal hearing.  So there is not a clear analogy with the Barry Controls case.

22.	Moreover, I put weight on the fact that although the Council knew that there were relevant medical reports in existence, they were apparently content to allow the issue to be determined without having the benefit of seeing them. Had they made an unsuccessful application to see the reports, I suspect this would have been a very different case.  I accept also that it will usually be prudent for a tribunal to require medical evidence in a case of this nature, but it was not in my judgment an error of law to fail to obtain it here.  The Tribunal was plainly satisfied as to the honesty of this witness (and I have to say, having heard her make submissions before me today, I can quite see why) and it chose to act on her evidence.  In my judgment, the Employment Judge was entitled to take that step.

23.	I turn finally to the Meek challenge, namely the allegation that the reasoning of the Tribunal is insufficient to enable the Council to know why it has lost.  Mr Bryant put forward an attractive argument why the decision was defective.  However, on reflection it seems to me that the strength of this ground, at least in part, is very closely related to the second ground.  Once the Tribunal accepted the evidence of the claimant that her illness was so severe that she was unable to focus on anything, then the precise nature of the illness is immaterial. Similarly, in those circumstances the manifestation of the debilitating effect is not relevant either. The consequence was clearly sufficient to disable her from focusing on and presenting a claim. She was suffering from an overwhelming depression which at times amounted to a nervous breakdown.
24.	I am more troubled by the lack of detailed findings as to precisely when the claimant began to recover from the illness and the Tribunal’s failure to analyse more carefully what steps she took, and when, between the time when she began to recover and the date she lodged the claim..  The Tribunal’s reasoning with respect to this latter period is very cursory.  The delay may have been as long as two months - indeed possibly longer - and although the Tribunal recounts certain steps which were taken, such as contacting the CAB and seeking free representation, there is no wholly satisfactory explanation as to why that took the time it did.  I do not accept a submission floated by Mr Bryant that the only proper conclusion on the evidence was that the claimant had not presented her claim within a reasonable period following her recovery, but had I not found against the claimant in any event, I would have remitted the case for reconsideration of this issue.  (Had it been material, I would have heard submissions as to whether it should have been the same or a different tribunal.)  

Disposal.
25.	However, for the reasons I have given, this appeal must succeed. I find that on the case before the Tribunal the only proper conclusion, given that the union had undertaken to present the claim, was that it was reasonably practicable for the claim to be lodged in time.  I reach this conclusion with some reluctance because I have no doubt that the claimant has been through an extremely distressing period in her life and feels aggrieved, rightly or wrongly, about her treatment by the Council.  But in the light of the authorities, in my view the facts here dictate only one answer.  It follows that I must substitute a finding that the claim was presented out of time and cannot be pursued.