Appeal No. UKEAT/0465/10/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 November 2010
Judgment handed down on 2 March 2011

Before
HIS HONOUR JUDGE BIRTLES 
(SITTING ALONE)

REMPLOY LTD	APPELLANT

MRS K L BRAIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS AILEEN McCOLGAN
(of Counsel)
Instructed by:
Messrs Capital Law LLP
One Caspian Point
Caspian Way
Cardiff Bay
CF10 4DQ	
For the Respondent	MR NICHOLAS SINGER
(of Counsel)
Instructed by:
L G Williams & Prichard
22 St Andrews Crescent
Cardiff
CF10 3DD	

SUMMARY
JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: reasonably practicable

Appeal against the decision of an Employment Judge that (a) it was not reasonably practicable for the Appellant to bring her claim for unfair dismissal within the 3 month time limit where (i) she had no knowledge of the time limit and (ii) had taken informal advice from a solicitor who she had not retained to act for her; (b) it was perverse on the facts for the Employment Judge to conclude that a further delay of 2.5 months was reasonable.

HIS HONOUR JUDGE BIRTLES
Introduction
1.	This is the reserved judgment of an appeal from a pre-hearing review of Employment Judge S J Williams sitting in Cardiff on 21 June 2010.  The judgment was sent to the parties on 30 June 2010.  

2.	Employment Judge Williams decided that it was not reasonably practicable for the Claimant to present a claim of unfair dismissal within three months of the effective date of the termination, and that she did so within such further time as was reasonable.  Accordingly, the Employment Tribunal had jurisdiction to consider her claim.  

3.	I heard the appeal on 23 November 2010.  Counsel for the Appellant was Ms Aileen McColgan of counsel.  The Respondent was represented by Mr Nicholas Singer of counsel.  I am grateful to both counsel for their written and oral arguments.  On 16 December 2010 I heard the case of T-Mobile (UK) Ltd v Mr C Singleton (UKEAT/0947/10/ZT).  The point in that appeal was very similar to the main point in the present appeal.  In that case I was referred to the Royal Bank of Scotland plc v Mr J Theobald (UKEAT/0444/06/RN) and Ashcroft v Haberdashers Askes’ Boys School (UKEAT/0101/07/CEA).  Those two authorities were not cited to me in the present case and I therefore invited counsel to make further written submissions on them.  Unfortunately, due to a postal delay I did not receive the written submissions until 4 February 2011.  

The Material Facts
4.	These are set out in the judgment at paragraphs 2‑5:

“2. The claimant had been employed for 8 years and was the respondent’s regional operations manager for Wales and the South West when, on 14th October 2009, she was suspended from duty.  On 10th November 2009 she was dismissed by reason of gross misconduct.
3. The respondent’s internal appeal procedure consists of three stages.  The claimant had a stage one appeal hearing on 8th December 2009, a stage two appeal hearing on 7th January 2010 which was adjourned and reconvened on 24th February 2010, and a stage three appeal hearing on 14th April 2010.  She received the outcome of the stage three hearing on 15th June 2010.  The Claimant says, and I accept, that she concentrated her effort initially on the internal procedures in the hope that they would solve her problem.
4. The Claimant did not seek any formal advice following her dismissal.  She spoke to a school friend who happened to be a solicitor but was not an employment specialist.  Her friend put the Claimant in touch with a solicitor who professed some experience in employment law and agreed to meet the Claimant informally over a cup of coffee.  The Claimant did not pay the solicitor.  The gist of the information she was given is that she should follow the internal procedures first.
5. The Claimant’s line manager was dismissed at about the same time as she was.  He also went through the internal appeal procedures and then telephoned either ACAS or the CAB to be informed that the 3‑month deadline for him to present a claim of unfair dismissal had passed.  He conveyed that information to the Claimant in about later March or very early April 2010, at which point she contacted the Tribunal office who forwarded a pack containing an application form to her.  The Claimant was away for about a week in early April 2010 and received that pack through the post on about 9th April 2010.  She was at that stage preparing for the stage three final appeal on 14th April 2010.  On 19th April 2010 she presented her claim form to the Tribunal.”

The Employment Tribunal Judgment
5.	Having set out the provisions of section 111 of the Employment Rights Act 1996 and the authorities cited to him, the Employment Judge reached his conclusions in paragraphs 10‑15 of his judgment.  He says this:

“10. I am satisfied in this case that the Claimant was completely ignorant of the time limit for presenting a claim of unfair dismissal until she was notified by her former line manager, who had himself very recently discovered them.  I have to ask myself whether the Claimant’s ignorance was reasonable.  As part of that enquiry I must consider whether the Claimant made reasonable enquiries and reasonable efforts to inform herself.  It is not everyone who is in a position to take expensive expert advice and it is therefore, in my judgment, not unreasonable not to do so.  Even today, the Employment Tribunal is meant to be a forum to which Claimants can have access without the need for specialist help.  On the other hand, it is reasonable that a person should make some enquiry about how they ought best to conduct themselves in relation to a potential claim.  This Claimant sought advice through an old school friend and was put in touch informally with a solicitor who was willing to chat with her about her position   The Claimant did not enter into any formal contractual relationship with the solicitor to whom she was talking and it is, in my judgment, very unlikely that the solicitor thought that he was assuming any liability in relation to any advice he gave.
11. In Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379, Lord Denning stated the principle that “if a man engages skilled advisors to act for him - and they mistake the time limit and present it too late - he is out.  His remedy is against them”.  Mrs Goldsborough relies upon that principle and argues that the Claimant, having consulted a solicitor, however informally, can no longer hide behind what has been called the “escape clause”.  In Williams‑Ryan’s case, Keene LJ said “this, therefore, is not one of those cases where an employee has been wrongly advised by a skilled advisor, nor one where it seems likely that the employee had a remedy against that advisor”.
12. In this case I think it highly unlikely that this Claimant would have had any remedy against the solicitor whom she informally consulted over a cup of coffee and who was willing to chat to her as a favour about the position she was in.  She had not engaged him professionally for a fee.  He had not undertaken to research anything on her behalf.  Not having heard anything from that solicitor, I must be slow to impute any ignorance or lack of care to him, but I do accept that he left the Claimant with the impression that she ought first to exhaust the internal appeal procedure.
13. When the Claimant was made aware of the time limit problem by her former line manager, she did in my judgment act promptly to get her claim into the Tribunal.  I bear in mind that in the early part of April 2010 the Claimant was away from home for a week and did not receive the pack from the Employment Tribunal until about 9th April 2010 and, further, that she had to prepare for and attend the third stage of the internal procedure on 14th April 2010.  Presenting her claim on 19th April 2010 in those circumstances did not amount to unreasonable delay.
14. I consider that this Claimant acted reasonably after her dismissal by taking informal advice and in believing that she had first to exhaust the internal procedure before presenting a claim to a Tribunal.  The advice she took was not the kind of advice contemplated by Lord Denning, namely the engagement of skilled advisors to act for her and, adapting the words of Keene LJ, it seems very unlikely that this Claimant would have had any remedy against that informal advisor.  It was not unreasonable for the Claimant to act on that informal advice.
15. For the reasons set out above, I consider that it was not reasonably practicable for the Claimant to have presented this claim within 3 months of the date of her dismissal and, further, that once she had been made aware of the legal position, she acted with reasonable speed and diligence to present her claim when she did.  Accordingly, I find that the Tribunal does have jurisdiction to consider this claim.”

Section 111 Employment Rights Act 1996
6.	The material parts of section 111 provides as follows:

“111 Complaints to Employment Tribunal
(1) A complaint may be presented to an Employment Tribunal against an employer by any person that he was unfairly dismissed by the employer
(2) Subject to subsection (3), an Employment Tribunal shall not consider a complaint under this section unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that is was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

The Notice of Appeal
7.	The Notice of Appeal appears at EAT bundle pages 6‑11.  It is supplemented by Ms McColgan’s written and oral submissions.  The Respondent’s answer appears at EAT bundle pages 12‑18.  It is supplemented by Mr Singer’s written and oral submissions.  I take each ground of appeal in turn.

Ground 1: Reasonable practicability
8.	It is common ground that the complaint was presented outside the three‑month time limit - some two months and two weeks out of time.

9.	This ground of appeal is that the Tribunal ought to have decided that it was reasonably practicable for the Claimant to have presented her claim within three months from the date of her dismissal.  The Tribunal failed to do so because it misdirected itself on the relevant law.  Ms McColgan accepts that the Tribunal recognises that a Claimant who is proceeding with an internal appeal against dismissal should not on that basis be able to argue that it was not reasonably practicable to bring an unfair dismissal claim: Palmer & Saunders v Southend-on-Sea Borough Council [1984] ICR 372.

10.	However, she submits that the Tribunal did not take proper notice of the case law and refers me to Dedman v British Building & Engineering Appliances Ltd [1973] ICR 52 at paragraphs 18-19 per Lord Denning; as modified by the Court of Appeal in Riley v Tesco Stores Ltd [1980] ICR 323 per Stevenson LJ at pages 328‑331.  Waller LJ and Dame Elizabeth Lane agreed with the remarks made by Stevenson LJ.

11.	Ms McColgan submits that the present case is governed by the general approach of the Court of Appeal in Dedman and that the Claimant cannot benefit from the fact that the mistake as to the applicable time limit emanated from the person from whom she sought legal advice, rather than from any other source.  That conclusion does not turn on the nature of the relationship between the Claimant and the solicitor, or on the possibility of legal action by her against him.

12.	By contrast Mr Singer’s first submission is that the Dedman principle does not apply where there is unlikely to be a remedy against the skilled advisor.  He refers me to the remarks by Lord Denning in Dedman [1974] ICR 52 at 61F and Keene LJ in Marks and Spencer plc v Williams-Ryan [2005] ICR 1293 at paragraph 47.

13.	Mr Singer further submits that a distinction can be drawn in a case where an advisor has been engaged, but the employee has retained control of the claim herself.  At paragraph 12 of his skeleton argument he sets out four reasons why this is so.

14.	Applying those principles to the facts of this case Mr Singer submits that the Employment Tribunal was entitled to find that the Claimant was completely ignorant of the three‑month time limit for presenting a claim for unfair dismissal until she was notified by her former line manager: judgment paragraph 10.  Furthermore, she had advice from a solicitor who had some experience of employment law that she should concentrate on the internal appeal process first.  That advice was informal and the solicitor was not retained by her.  It was unlikely that she would have a remedy in negligence against him.  For those reasons Mr Singer submitted that it was not reasonably practicable for the Claimant to file her claim within the three‑month time limit.

Discussion
15.	It is important to remind myself that the governing principle is contained in the words of section 111 itself.  There is detailed guidance on how to deal with the question of a Claimant’s expressed ignorance of her rights in the judgments of Scarman LJ in the Dedman case [1974] ICR 52 at 64D‑G and by Brandon LJ in Wall’s Meat Co. Ltd v Khan [1979] ICR 52 at 60F‑61A.  It follows that a Claimant’s expressed ignorance of her statutory rights cannot be conclusive.  As the cases just cited point out, with widespread public knowledge of unfair dismissal rights, it is all the time becoming more difficult for an employee to plead such ignorance successfully.

16.	Whilst the effect of Riley v Tesco Stores Ltd [1980] ICR 323 is to widen the categories of advisor whose fault could be attributed to the employee, that case is not, as the Employment Appeal Tribunal has pointed out, authority for the proposition that bad advice from any third party will prevent a Claimant from showing reasonable impracticability; Jean Sorelle Ltd v Rybak [1991] ICR 127 and London International College v Sen [1992] IRLR 292 EAT upheld by the Court of Appeal [1993] IRLR 333.  See especially the remarks of Lord Bingham MR at paragraph 17.

17.	I, therefore, reject Ms McColgan’s submission that the Claimant cannot benefit from the fact that the mistake as to the applicable time limit emanated from the person from whom she sought legal advice rather than any other source.

18.	Furthermore, it is important to bear in mind that the question of what is or what is not reasonably practicable is essentially one of fact for the Employment Tribunal to decide and that appellate courts will be slow to interfere with the Tribunal’s decision.  In this case there was evidence before the Employment Judge that the Claimant had taken advice from a solicitor:

“[…] who professed some experience in employment law and agreed to meet the Claimant informally over a cup of coffee.  The Claimant did not pay the solicitor.  The gist of the information she was given is that she should follow the internal procedures first.”

19.	Following Riley it does not seem to me to matter that the solicitor was not retained by the Claimant or that she did not pay him for the advice.  The fact was she believed him to have experience in employment law and she was given specific advice to pursue the internal appeal first.  Acting on that advice that is what she did.  In those circumstances it seems to me that it was open to the Employment Judge to conclude (having taken all other material factors into account) that it was not reasonably practicable for this particular Claimant to bring her claim within the three‑month period because she was pursuing the internal appeal (which she did).  

20.	I do not think that my conclusion is vitiated by the apparent conflict between two earlier EAT decisions.  In Royal Bank of Scotland v Theobald (UKEAT/0444/06/RN), Lady Smith suggested at paragraph 27 that:

“A distinction should be drawn between… a case (in which the claimant has (paragraph 26) “put the handling of his tribunal claim in the hands of a skilled adviser and that adviser negligently failed to meet the time limit”) and circumstances where a Claimant does not instruct an adviser to present his case for him but simply seeks advice in circumstances where he retains responsibility for the presentation of his claim himself.  In such a case, none of the existing authorities will seem to indicate that the claimant must necessarily be fixed with the fault of his adviser so as to make the “escape clause” unavailable to him.  In the case of the fault of the skilled adviser who has been charged with the responsibility of presenting the claim, it will not normally be able to be suggested that it was reasonable for such an adviser to delay beyond a statutory time limit.  Such an adviser should know better.  If, on the other hand, the adviser has not been instructed to act for the claimant in presenting and furthering the claim, matters appear rather differently.  The claimant retains responsibility for that and he does so in circumstances where he has been misinformed, by a skilled adviser, as to his right to lodge a claim.  The difference is that in that event, it is likely to be the case that whilst it may well have been practicable in the sense of it being possible or feasible to present the claim in time, it is not reasonable to have expected that to have been done.  In such circumstances the claimant has been told by someone upon whose advice he was entitled to rely, but he was not entitled to do so.”

21.	In Ashcroft v Haberdashers Askes’ Boys School (UKEAT/0101/07/CEA) Mr Justice Burton stated that the distinction suggested by Lady Smith:

“… Between a situation in which a claimant hands over the handling of the proceedings in their entirety to such an adviser… where the ‘impracticability case’ would not be available, and to a situation where a claimant handles the case himself or herself, but on a one-off basis obtains advice from an adviser as to time limits or deadlines, which turns out to be wrong, in which Lady Smith suggests that it might be that the ‘impracticability case’ might be available…(is) a difficult distinction which may not be possible to pursue in practice, and may not be founded on logic or good authority….”

22.	I respectfully agree with the criticism made by Mr Justice Burton of what Lady Smith said.  In my judgment it is always essential to go back to the words of s111 of the 1996 Act itself.  I suspect that much of the confusion or refinement that appears in the many cases on s111 arise from the specific factual situations from which tribunals and the appellate courts found themselves.  In my judgment it is not necessary to make the sort of factual distinctions suggested by Lady Smith which automatically leads to a single conclusion.  At the end of the day the Employment Appeal Tribunal has to decide whether on the facts of the particular case the Employment Judge has made an error of law.  In my judgment for the reasons I have endeavoured to give he did not.  

Ground 2: Presentation within a further reasonable period
23.	Ms McColgan’s second submission is that the Tribunal’s conclusion that the Claimant “acted with reasonable speed and diligence” once she became aware of the legal position regarding time limits was perverse.

24.	Before considering Ms McColgan’s submissions in detail I remind myself of the very high test for perversity set down by Mummery LJ in Yeboah v Crofton [2002] IRLR 624 at paragraphs 92‑95.  The threshold to be overcome is a very high one.

25.	Ms McColgan relied on the fact that some two and a half months had elapsed between the expiry of the three‑month period on 9 February 2010 and the Claimant’s eventual presentation of her complaint on 19 April 2010.  She refers me to the facts set out by the Employment Judge as to what action the Claimant took and submits that the Tribunal’s finding, whilst referring to the Claimant’s holiday and the fact that she had to prepare for and attend the third stage of her internal procedure on 14 April 2010, was perverse.  She refers me to Royal Bank of Scotland v Theobald [2007] UKEAT/0444/06/RN and Wolverhampton University v Ebelthei [2007] UKEAT/0167/07/RN as well as Northumberland County Council & another v Thompson [2007] UKEAT/0209/07/MAA.

26.	I have read these cases carefully.  However, they seem to me to be the application of well‑recognised principles to the facts of specific cases.  I do not disagree with the results in any of the three cases or indeed with the judgments.

27.	As Mr Singer points out, the Tribunal’s discretion as to what is reasonable under section 111(2)(b) of the Employment Rights Act 1996 is very wide, although it must be exercised judicially: Howlett Marine Services Ltd v Bowlam [2001] IRLR 21 at paragraph 24 per Lindsay J.  In particular Lindsay J said this:

“The legislature has not, for example, identified any characteristics of any period which are to be taken to make the elapse reasonable or unreasonable.  That points to a difficulty for an Appellant.  It will not be enough for an Appellant to say, for example, that the Employment Tribunal could well properly have concluded other than it did.  Rather, the Appellant needs to show that the Employment Tribunal took into account material which it should not have taken into account in the exercise of its discretion or failed to take into account that which it should have taken into account, or otherwise that it erred in principle of law or held in such a way that no reasonable Tribunal properly instructing itself could have concluded as it did.”

Discussion
28.	Here the Employment Tribunal made the following findings in its judgment:

(1)	That upon discovering the actual time limit the Claimant immediately contacted the Employment Tribunal office;

(2)	Having contacted that office and there being no finding of fact that the office told her about being able to submit the ET1 electronically, it was reasonable for the Claimant to wait for the pack to arrive in the post;

(3)	Upon receiving the pack on 9 April 2010 it was reasonable to focus her energy upon trying to save her job via the appeal process;

(4)	A further five days to properly prepare and submit the claim form was reasonable.

The claim form is at EAT bundle pages 19‑27.  The additional information at EAT bundle pages 25‑27 consists of three very closely typed pages of material.

29.	In my judgment the Employment Tribunal’s judgment cannot be impugned on the ground of perversity.  It was a judgment which it was open to this Employment Tribunal to reach.

Conclusion
30.	For these reasons the appeal is dismissed.