United Leeds Teaching Hospital v Walters [1993] UKEAT 258_92_0802

EAT
United Leeds Teaching Hospital v Walters
[1993] UKEAT 258_92_0802 · 1993-02-08
HIS HONOUR JUDGE HARGROVE QC By a decision dated 24th October 1992 the Industrial Tribunal held that it had jurisdiction to hear the complaint of Mrs Walters. The Tribunal found that Mrs Walters was dismissed on 2nd May 1990. She presented her Originating Application on 26th September 1991. It has been further found that she had been represented at the hearing when she was dismissed by a Mr Gibson, a trade union official. She was informed by him of her right to an internal appeal and he requested instructions. A few days later Mrs Walters and Mr Gibson were in communication when she told him to proceed to an internal appeal. Apparently such internal appeals were dealt with sometimes within a 3-month period, but on this occasion the internal appeal was not heard until November 1991. The 3-month period of the Respondent's complaint of unfair dismissal to the Industrial Tribunal expired in the ordinary course of events on 1st August 1990.The issue of jurisdiction hinges upon whether the 'escape clause' in S.67 of the Employment Protection (Consolidation) Act 1978 applied. We have reminded ourselves of the view of Shaw LJ in Wall's Meat Co Ltd v. Khan [1979] ICR 52 at p.57 :
"It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs.
The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive. ..."Although the Chairman's notes of evidence have not been provided it is possible from the decision itself to ascertain some of the evidence. At the disciplinary committee the Respondent had the benefit of the advice of her Trade Union and that there was a further period of communication when the decision was made to proceed with the appeal procedure. Thereafter the Trade Union's attempts to contact Mrs Walters comprised the sending of two letters which did not arrive and it does not appear that the carbons were available for the Tribunal to peruse although the Tribunal found that there was some mention of the Industrial Tribunal in those letters. The Trade Union made further attempts in two telephone calls to Mrs Walters but these were to the wrong number. Mrs Walters was finally alerted to the situation by a meeting with a Trade Union official identified only as "Gloria" in July or August 1991.The attack upon the decision of the Tribunal is made on a number of grounds and these can be conveniently divided into criticism of Mrs Walters and criticism of the Trade Union function in the case. With regard to Mrs Walters it is said that her error, even if she was ignorant of the matter entirely, was in failing to keep in touch with her Trade Union between the occasion when she gave instructions for the internal appeal to take place and the date when, subsequent to meeting "Gloria" she re-contacted the Union. While we find it very surprising that no contact was made by Mrs Walters with her union for so long a period we do not think that, in this instance, this is sufficient to overturn the Tribunal's finding of fact.Turning to the Trade Union participation, it is said that either upon the first occasion when Mrs Walters was dismissed or certainly upon the second occasion Mr Gibson ought to have advised Mrs Walters, not only of her right to appeal to an Industrial Tribunal, but also of the time limits involved. It is further said that having failed in that respect the Union was under an obligation to make vigorous efforts to get the information to Mrs Walters in order that her rights should not be shut out and that the attempts which were made are upon their face unsatisfactory. It is contended for the Respondent that there is no finding of blame made by the Tribunal in relation to the Trade Union and that indeed the Union was exonerated, inter alia, by the passage in paragraph 3 of the Reasons which is in the following terms:
"... There are occasions when time is running short and an originating application is presented as a holding measure in case it should be necessary to pursue it. That was not done in this case. The union were conscious of what their obligations were. Mr Gibson wrote to the applicant some two months after the date of dismissal, in sufficient time to find out what was her view about the next step to be taken and to act. He got no reply. He wrote again and got no reply. The evidence seems clear that for some reason unexplained those letters were not received by the applicant. We have not seen what the contents of them were, but we are satisfied from what we have been told that some mention was made of the right to go to an industrial tribunal. Mr Gibson was looking for authority to proceed in that direction. Having had no reply by letter, he made two telephone calls at different times to the number given at which it was believed the applicant was resident. In neither case was it possible to make contact with the applicant and indeed it appeared that the number was not the correct number.
4. The time of 3 months elapsed and the evidence which we accept is that even after that the union was very conscious of their obligations to the applicant as to seeking the remedy which they believed she was wanting, although she had not given them authority to go ahead and claim it."It is further urged on behalf of the Appellant that the Tribunal were in any event in error in elevating fault to the level of equating it with impracticability.The law is stated, classically in Dedman v. British Building Ltd [1974] ICR 53 at 61 where Lord Denning MR indicated:"It is difficult to find a set of words in which to express the liberal interpretation which the English court has given to the escape clause. The principal thing is to emphasise, as the statute does "the circumstances". What is practicable "in the circumstances"'? If in the circumstances the man knew or was put on inquiry as to his rights, and as to the time limit, then it was "practicable" for him to have presented his complaint within the four weeks, and he ought to have done so. But if he did not know, and there was nothing to put him on inquiry, then it was "not practicable" and he should be excused.But what is the position if he goes to skilled advisers and they make a mistake? The English court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It was held that it was "practicable" for it to have been posted in time. He was not entitled to the benefit of the escape clause: see Hammond v. Haigh Castle & Co Ltd [1973] ICR 148. I think that was right. If a man engages skilled advisers to act for him - and they mistake the time limit and present it too late - he is out. His remedy is against them.Summing up, I would suggest that in every case the tribunal should inquire into the circumstances and ask themselves whether the man or his advisers were at fault in allowing the four weeks to pass by without presenting the complaint. If he was not at fault, nor his advisers -- so that he had just cause or excuse for not presenting his complaint within the four weeks - then it was "not practicable" for him to present it within that time. The court has then a discretion to allow it to be presented out of time, if it thinks it right to do so. But, if he was at fault, or if his advisers were at fault, in allowing the four weeks to slip by, he must take the consequences. By exercising reasonable diligence, the complaint could and should have been presented in time."The point is made from a different aspect by Scarman LJ at p.64:
"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 rights, 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 will be out of court."
In Riley v. Tesco Stores Ltd [1980] IRLR 103 the Court of Appeal held:
"Where an employee who presents his complaint of unfair dismissal out of time alleges ignorance of his right or of how and when he should pursue it, or is under some mistaken belief about these matters, an Industrial Tribunal must look at the circumstances of his ignorance or belief and any explanation that he can give for them, including any advice which he took, and then ask itself whether the ignorance or mistake is reasonable on his or his advisers' part, or whether it was his or his advisers' fault. If either was at fault or unreasonable, it was reasonably practicable to present the complaint in time. ..."
It seems to us beyond question that it was the duty of the Trade Union to make certain that Mrs Walters knew her rights before the Industrial Tribunal and the time limits involved. In our view it would have been desirable that the union should have done so on the occasion of the disciplinary proceedings when Mrs Walters was dismissed. By the time the union took instructions concerning an appeal a few days later the best practice would clearly have indicated that on that occasion the whole matrix of available proceedings, together with the time limits, should have been explained to her. It was not until two months after the date of the dismissal that upon Mr Gibson's own evidence steps were taken to get in touch with Mrs Walters. In the light of the fact that there was no holding application served, it was then imperative that the utmost vigour should be exercised in seeking out Mrs Walters and explaining the position. What was done was the despatch of two letters the full contents of which are unavailable (presumably because no carbons are available) and two misdirected telephone calls were made. Had the Tribunal applied the test set out in Riley (above) and asked the question whether either Mrs Walters or the Trade Union was at fault or unreasonable the Tribunal could not have reached the view that the conduct of the Trade Union as set forth above was both reasonable and fault-free. It is important to bear in mind that the burden of proving that it was not reasonably practicable for the complaint to be presented before the end of the three-month period rests upon Mrs Walters. We are in agreement with the comment of counsel for the Appellant in this matter that, looking at the conduct of the Trade Union in relation to the proceedings on the issue of negligence, it was tantamount to a case res ipsa loquitur . In our view the decision on this aspect by the Tribunal was both perverse and wrong in law. Accordingly we are of the unanimous view that the Tribunal had no jurisdiction and this appeal is allowed.