Nuffield Hospitals v Perkin [1993] UKEAT 359_92_0803

EAT
Nuffield Hospitals v Perkin
[1993] UKEAT 359_92_0803 · 1993-03-08
HIS HONOUR JUDGE HARGROVE This short case on jurisdiction has proved to be one of considerable complexity; it must have been even more difficult before the Industrial Tribunal. By Reasons given on 14th April 1992 the Tribunal held that it had jurisdiction to hear the case notwithstanding the fact that the application had not been made before the end of three months from the effective date of termination of employment.The Respondent was employed from June 1980 to 7th May 1991 when he was made redundant. He received three months pay in lieu of notice. Mr Perkin consulted the Employment Agency who put him in touch with the Advisory, Conciliation and Arbitration Service (ACAS). There was then a conversation with someone at ACAS in the course of which it seems that certain information was transmitted to Mr Perkin about an application to the Tribunal. The nature of that conversation is vital. The Tribunal held at paragraph 3 as follows:... There was a certain aspect of the evidence he gave us regarding the conversation he had with ACAS which was not entirely clear: at one stage Mr Perkin said that he told ACAS he had received three months' pay in lieu of notice: on another point he told us that the information he gave ACAS was that his pay expired on 31st July and not 31st August. These may be significant points, and of course the Tribunal bears in mind that the only evidence we have today is that of Mr Perkin recounting what he had been told by ACAS. Mr Perkin has told us that he was hoping to get some private work from the Nuffield Hospital and did not wish to antagonise them by prematurely applying to an Industrial Tribunal, but nevertheless wanted to know what his rights were in the matter. He told us that he was advised by ACAS that he had a three month period in which to bring a claim to the Tribunal and the three month period would be reckoned from 31 July 1991. Accordingly, although he had received an application form, he did not give it a great deal of attention until the time was about to expire, and he completed the application form on or about 8 August 1991. It was posted shortly afterwards and received at the Central Office of the Industrial Tribunals on 23 August 1991."The Tribunal then quite correctly, recited the relevant passage from S.67(2) of the 1978 Act and resolved the question at paragraph 5 of the Reasons:
"On balance we have concluded that Mr Perkin was the recipient of misleading advice. We take into account the fact that we have to bear in mind the interests of the Nuffield Hospital who are entitled ordinarily to assume that once three months has passed they are no longer at risk of a complaint being brought to the Tribunal. But in these circumstances, we feel that in the light of the misleading advice that Mr Perkin received, it was not reasonably practicable for the complaint to be presented within the three month period. We are satisfied that thereafter it was presented within a period which we consider reasonable."
The Respondents have drawn our attention to Palmer v. Southend Council [1984] ICR 372 at 385 where it is stated in trenchant terms that it is abundantly clear on all authorities that the answer to the relevant question is one of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie. It was further urged that the source of the advice was vital and we were referred to Rybak v. Jean Sorelle Ltd [1991] ICR 127 at 134H.
"The first issue before us in the present case is whether the industrial tribunal could properly treat advice from an employee of the industrial tribunal as being in a different category from advice from a solicitor or Citizens Advice Bureau adviser. In our judgment it could do so. There is material upon which such a distinction can be based, namely, that there is a clear factual difference between advice obtained by a claimant from someone who is asked, whether for a fee or not, to advise the claimant in the prosecution of his claims against the employer on the one hand, and advice obtained by a claimant from an employee of the tribunal which is charged by Parliament with the task of resolving the dispute between the parties on the other hand. That factual difference in our view provided material upon which it was open to the industrial tribunal to hold as a matter of fact that the employee could, to use Waller LJ's phrase in Riley v. Tesco Stores Ltd , hide behind his failure. The question is one of fact and there was material upon which to base the industrial tribunal's decision. It is not for us to interfere even if we were minded to do so."
At first we were tempted to equate the position of an official of ACAS with that of an official of the Industrial Tribunal in respect of advice given. However, S.134 of the 1978 Act makes it clear that the services of ACAS are designed for those cases which are not to be dealt with by the Tribunal. It is a different position where an official of the court misleads a potential litigant. It would be wrong for a court to be able to blow hot and cold to the detriment of a litigant. The Appellant maintains that the Tribunal has misdirected itself in the manner of approach set forth in Rybak at p.132D
"...We therefore accept that there is a general principle that a failure by an adviser such as a solicitor, trade union officer or Citizens Advice Bureau officer to give the employee correct advice regarding the time limit will prevent the employee from claiming that it was not reasonably practicable to apply in time."
At p.133

the Judge continues:

"Waller LJ also emphasises in Riley v. Tesco Stores Ltd the breadth of the question which has to be answered by referring to the words of the relevant provision. He said at p.335:
"Was it reasonably practicable for a person in the case to give notice? If she or he did not know of the right and was not at fault in any way, it was not practicable. If as a reasonable person he or she ought to have known, then it was practicable and was reasonably practicable."
In relation to mistakes made by advisers Waller LJ said at p.336:
"What is the position if, knowing of your right, you ask another to take the necessary action? In my opinion, you cannot then be in a better position than if you had retained the power to act yourself. If you have retained a skilled adviser and he does not take steps in time, you cannot hide behind his failure. There may be circumstances, of course, where there are special reasons why his failure can be explained as being reasonable. Like Stephenson LJ I am, however, doubtful whether this situation depends on the skill of the adviser. The defence of not being reasonably practicable might fail, whether or not the adviser was skilled, if in fact he was properly acting."
This statement is also quite inconsistent with any general principle that third party advice which is mistaken prevents a claimant from showing that it was not reasonably practicable to present the application in time" .The Appellant maintains that there are therefore two stages at least to be traversed. The first is to decide what advice was sought (ie what facts did Mr Perkin make available to ACAS) and what advice was received. If it is decided that that advice was misconceived, that by itself is not an excuse if misleading facts were placed before ACAS. Secondly, there must be some reason to take the case out of the general principle as enunciated by Knox J in the Ryback case. We are of the view that that is a correct approach. With great regret we are unable to draw the inference that because the Tribunal has decided:
"5 On balance we have concluded that Mr Perkin was the recipient of misleading advice. ..."
this must mean that they have telescoped together both the consideration of the general principle and found an exception to it before stating the proposition in that way.The Tribunal also appears to have considered that it is a relevant matter that the Appellant's interests should be taken into account in deciding whether reasonable practicability has been demonstrated by the employee. With great respect we do not consider that that is a relevant consideration. In many cases it may be, and in certain cases definitely is, a severe detriment to an employer to be faced with a claim at a time when he was not expecting it and when he has made other arrangements in relation to his resources. That should not weigh with a Tribunal in deciding whether or not the applicant has made out his case.Although it is implicit in what we have already said we consider it important that a Tribunal considering this type of issue where there is, to put it neutrally, ambiguity in the account being given by the employee concerning what he said to ACAS, that the guidance given in W Press & Son v. Hall [1974] ICR 21 at 23 should be followed. The National Industrial Relations Court there indicated:
"So we start from the position that, as soon as the employee was dismissed, he was on inquiry because he knew he had rights. He did make some inquiries and it is here that our difficulty arises because we cannot be confident from the reasons given to the tribunal that we fully appreciate their finding as to what inquiries he made. He went within a few days of his dismissal to the employment exchange at Saltcoats. Thereafter, on a date which does not appear in the reasons of the tribunal, he visited the employment exchange at Argyle House, Edinburgh. According to the tribunal's findings he was told on both occasions that one of his former fellow employees, a Mr Sloan, had made an application which was being treated as a test case and that he should take no action until the outcome of that case was known. Unfortunately, the tribunal does not specifically state the nature of his inquiry. Once a man is put on inquiry it is his duty to make proper inquiries and it will not do for him to say that he has discharged his duty to inquire if he does so in such an incoherent way that he is legitimately misunderstood."
From the passages we have already cited it does not appear that this aspect was considered before the decision was made that the Tribunal had jurisdiction.As we indicated at the outset, this is a decision we have reached both with reluctance and hesitation but we are driven to the conclusion that this appeal must be allowed and the issue of jurisdiction should be retried before a Tribunal differently constituted. This is a unanimous decision.