Appeal No. UKEAT/0520/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 April 2011

Before
HIS HONOUR JUDGE PETER CLARK 
(SITTING ALONE)

REED IN PARTNERSHIP LTD	APPELLANT

MR S FRAINE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DANIEL NORTHALL
(of Counsel)
Instructed by: 
Reed Executive PLC
(Legal Services)
Academy Court
94 Chancery Lane
London
WC2A 1DT	
For the Respondent	MR BENJIMIN BURGHER
(of Counsel)
Instructed by:
T V Edwards LLP Solicitors
Park House
27-29 Mile End Road
London
E1 4TP	

SUMMARY
JURISDICTIONAL POINTS – Extension of time: reasonably practicable 

Claims of unfair dismissal / WD presented one day out of time.  Claimant mistakenly believed that time ran from the day after EDT.  

Whether ignorance of deadline reasonable.  No evidence that he was mislead or made any enquiries or sought advice during limitation period.  R appeal against extension of time allowed.  

HIS HONOUR JUDGE PETER CLARK 
Introduction
1.	This is an appeal by Reed in Partnership Ltd, the Respondent, against the judgment of Employment Judge Ferris, sitting alone, at a pre-hearing review held at the East London Hearing Centre on 11 May 2010 extending time for the Claimant, Mr Fraine, to present his complaint of unfair dismissal to the Employment Tribunal.  That judgment with reasons was promulgated on 10 August 2010.

Background
2.	As appears from the form ET1, the Claimant was employed by the Respondent or its predecessor as a personal advisor for job seekers with health related disabilities until his summary dismissal for alleged gross misconduct on 20 April 2009.  He presented his claim form ET1 to the Tribunal on 20 July 2009; that was one day outside the primary limitation period.  The question for the Employment Judge was whether time should be extended under section 111(2)(b) of the Employment Rights Act 1996 in relation to the unfair dismissal claim; precisely the same considerations apply to a claim of wrongful dismissal.  The onus lies on the Claimant to show that it was not reasonably practicable for the complaint to be presented in time and was presented within a reasonable time thereafter.

The Tribunal decision
3.	The Claimant put forward two reasons for his delay in presenting his complaint.  First, ignorance; although he knew it was right to bring a claim of unfair dismissal and that there was a three month time limit, as a lay-person he thought, in his words in a letter to the Tribunal received on 11 September 2009 and accepted by the Judge, “He simply thought that the time limit was three months and not three months minus one day”.  Secondly, he referred to the tragic death of a close friend, from cancer, on 12 June 2009 and his providing support during May 2009 to that friend and his grief following death.

4.	The Judge accepted the Claimant’s evidence as to both those reasons for delay.  He would not have found that the circumstances surrounding his friend’s death rendered it not reasonably practicable to lodge his complaint in time; Reasons paragraph 8.  However he found that it was not reasonably practicable to present the claim within time on the basis of the Claimant’s ignorance; paragraph 6.

5.	In reaching that conclusion, the Judge directed himself in law that where ignorance is relied upon the Claimant’s ignorance must itself be reasonable; paragraph 5.  He continued:

“After the passage of very many years since the unfair dismissal legislation passed it into law Tribunals are unlikely to be persuaded in any particular case that ignorance of rights as a whole is reasonable.  However, in this case the Claimant’s ignorance was not of the obligation to make his claim by a deadline but it was ignorance of the way in which the deadline in this case is calculated as a matter of law.  He understood that he was putting in the claim on the last day, but in fact, the requirement of the legislation is to start calculating the three month time limit not from the day after the day of dismissal but from the day of the dismissal, the day of dismissal in this case being the effective date of termination.” 

The law
6.	The Judge does not refer to any case law in his Reasons.  Neither counsel appearing before me appeared below.  The cases there were presented by an unqualified representative for the Claimant and a trainee solicitor for the Respondent.

7.	The starting point is the calculation of the three month time limit of which this Claimant was unaware.  Section 111(2)(a) ERA adopts the formula “Before the end of the period of three months beginning with the effective date of termination”.  The Judge refers to the passage of very many years since the unfair dismissal legislation passed into law.  The “beginning with” formula was present from the earliest days of the Industrial Relations Act 1971 and regulations made there-under and has consistently been interpreted in the same way.  The date of dismissal counts towards the three months period; see Hammond v Haighcastle Limited [1973] ICR 148 NIRC.  The Judge correctly directed himself that the ignorance relied on by the Claimant must itself be reasonable.  In Walls Meat Co Limited v Khan [1978] RLR 499 Lord Denning, Master of the Rolls, referred to his earlier judgment in Dedman v British Building and Engineering Appliances [1973] IRLR 39, the Dedman principle.  At paragraph 15 in Walls Meat he said:

“I would venture to take the simple test given by the majority in Deadman’s [1973] IRLR 379 case.  It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time?  Ignorance of his rights - or ignorance of the time limit - is not just cause or excuse, unless it appears that he or his advisors could not reasonably be expected to have been aware of them.  If he or his advisors could reasonably have been so expected, it was his or their fault, and he must take the consequences.” 

8.	Mr Northall has also referred me to passages in the judgment of Shaw LJ, paragraph 33 and Brandon LJ, paragraph 48 to like effect in that case.  I need not repeat those citations; see also Scarman LJ in Dedman at paragraph 36.

9.	For a recent consideration of the authorities in a case where skilled advisors gave negligent advice to the claimant after he was misled by the respondent, see Northamptonshire County Council v Entwhistle [2010] IRLR 740 Underhill J President; Mr Fraine did not seek professional advice whether from a solicitor, Citizen’s Advice Bureau or otherwise in the present case nor was he misled by the Respondent.

The appeal
10.	Mr Northall submits that here the Claimant knew of his right to present a complaint of unfair dismissal to the Employment Tribunal and that there was a three month time limit.  He assumed, without inquiry, that that period commenced the day after his summary dismissal.  That was a wrong assumption.  He left presentation until what he believed to be the last day, which, due to his mistaken belief, turned out to be one day late.  The defect in the Judge’s reasoning, he submits, is that having acknowledged that it is the reasonableness of the Claimant’s ignorance which must be judged, he then fails to explain how ignorance of the deadline is reasonable on the facts of this case.  There is no analysis of any inquiry which this Claimant could have made to find out the correct deadline for presentation.

11.	How, Mr Northall asks rhetorically, is ignorance of the deadline in this case reasonable?  Had the Dedman principle endorsed in Walls Meat been applied, the only answer to the question was the Claimant’s ignorance of the deadline reasonable is no; see Sodexho v Harmer UKEATS0079/08 10 July 2009, paragraph 25 per Lady Smith.

12.	The Claimant gave no evidence below of inquiries online through the ET website; his ET1 appears to have been lodged online by his then representative, Mr Wilson, through a solicitor or through the Citizens Advice Bureau, which he had made.  He simply proceeded on an erroneous assumption for which he had no basis.  This is not a case where the Claimant was misled by his employer, the Tribunal staff, the Benefits Office or any other agency; he simply made no inquiry; that was plainly unreasonable.  A finding that it was not is legally perverse.

13.	In response, Mr Burgher reminds me that the reasonable practicability question is essentially one of fact for the Employment Tribunal.  It is seldom that an appeal from such a decision will successfully lie; see Palmer v Southend BC [1984] IRLR 119 paragraph 35 per May LJ.  However, in an appropriate case, the High Courts and Tribunals will interfere, see Sodexho and Entwhistle and in the Court of Appeal, Schultz v Esso Petroleum [1999] IRLR 388 where the decisions of both the Employment Tribunal and Employment Appeal Tribunal below were reversed by the Court of Appeal.

14.	Mr Burgher submits that the Employment Judge correctly directed himself as to the law, reminding himself, paragraph 5, that the Claimant’s ignorance must be reasonable and asked me to infer that the Judge so found having asked himself the correct question.  Further, the Judge answered the reasonable practicability question by reference to the whole of the circumstances including the effect of the Claimant’s friend’s death, which left him in no mental state to complete the form ET1 any sooner after 12 June 2009; see first paragraph numbered 7.

Conclusion
15.	I prefer the submissions of Mr Northall.  Although the Judge posed the general question “Was the Claimant’s ignorance reasonable?” he failed to provide any reasoning explaining his conclusion that it was and I decline to draw the inference which Mr Burgher invites me to do.  I remind myself of the questions posed by Scarman LJ at paragraph 36 of Dedman, albeit at a time when the test was practicability not reasonable practicability.  His Lordship said: 

“Contrariwise, does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time?  In my opinion, no.  It would be necessary to pay regard to his circumstances and the course of events.  What were his opportunities for finding out that he had rights?  Did he take them?  If not, why not?  Was he misled or deceived?  Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his right, it would not be appropriate to disregard it, relying on the maxim ‘ignorance of the law is no excuse’.  The word ‘practicable’ is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance.  But what, if, as here, a complainant knows he has rights, but does not know that there is a time limit?  Ordinarily, I would not expect him to be able to rely on such ignorance as making it impracticable to present his complaint in time.  Unless he can show a specific and acceptable explanation for not acting within four weeks, he would be out of court.”

16.	Further, I accept Mr Northall’s reading of the Judge’s Reasons.  The reason why he extended time was simply on the base of the Claimant’s reasonable ignorance.  If that was an impermissible finding, absent a total lack of inquiry by the Claimant, as I hold it to be, then the extension would not have been granted by the judge on the second ground; see paragraph 8.

17.	In these circumstances I shall allow this appeal.  The question then is whether the matter should be remitted to an Employment Judge or whether I can deal with it myself under my powers contained in section 35 of the Employment Tribunals Act 1996.  Mr Burgher urges me to remit the case however again I prefer Mr Northall’s submission that all the primary facts based on the Claimant’s own evidence below have been found.  It would be wrong to allow the Claimant an opportunity on remission to cure any gaps in his evidence so far as inquiries or the lack of them by him during the limitation period are concerned.

18.	Based on the facts found, I have no hesitation in concluding that the Claimant has failed to show that it was not reasonably practicable to present his claims of unfair dismissal and wrongful dismissal in time.  I adopt the approach of Lady Smith in Sodexho, paragraph 25.  The only answer to the question, “Was this Claimant reasonably ignorant of the start date for the three month limitation period?” is no.  He knew of his right to bring a claim, he knew of the three month time limit, he was not misled by the Respondent nor any other agency or advisor as to the correct start date.  He made no inquiries at all through solicitors, the CAB or the Employment Tribunal website; he simply proceeded on a false assumption for which he had no basis.

19.	In these circumstances I shall set aside the Judge’s decision and dismiss the complaints of unfair dismissal and wrongful dismissal.  The question as to whether the Claimant’s separate unlawful deductions claim is time barred is not resolved by Judge Ferris’ decision.  If that claim is pursued it must remain in the Employment Tribunal for appropriate disposal.

JUDGE CLARK:  Anything else?  I see unusually, you have a Legal Aid certificate, Mr Burgher; you do not see many of those these days.

MR BURGHER:  Indeed.  Sir, I must say I do not know whether I need to ask for a certificate of counsel, I was asking colleagues in chambers as to what you could --

JUDGE CLARK:  Well, I have no idea because it is so long since I have seen one, but whatever it is that you need to get paid I shall duly order.

MR BURGHER:  I am grateful.

JUDGE CLARK:  So if I say I will make the usual order then it is a headache for the staff to decide what the usual order is.

MR BURGHER:  I am grateful sir.  Could I also ask for the transcript?

JUDGE CLARK:  Yes, certainly, Mr Burgher, yes we will have a transcript as well.  Well we have a standard formula, so you should not be out of pocket, Mr Burgher.  Thank you very much.  Thank you very much Mr Northall.