Hospitality Training Foundation v Philip [1998] UKEAT 288_97_1702

EAT
Hospitality Training Foundation v Philip
[1998] UKEAT 288_97_1702 · 1998-02-04

JUDGE PETER CLARK :

This is an appeal by the employer, Hospitality Training Foundation, against a decision of an Industrial Tribunal sitting at London (North) on 17th January 1997, that it had jurisdiction to entertain a complaint of unfair dismissal and wrongful dismissal brought by the former employee, Mr Philip, notwithstanding that the complaint was presented one day outside the primary three month limitation period. The tribunal held that it was not reasonably practicable to present the claim within time, and that it was presented within such further period as the tribunal considered reasonable. Extended reasons for that decision are dated 18th March 1997.We have pointed out to Counsel that strictly we do not presently have jurisdiction to entertain that part of the appeal which relates to the wrongful dismissal claim. Pendragon PLC v Jackson [1998] IRLR 17 . It is agreed that if we allow the appeal in respect of the unfair dismissal claim we shall adjourn the appeal in respect of the wrongful dismissal claim. If we dismiss the former appeal, we shall also dismiss the latter.The facts may be shortly summarised. Following earlier disciplinary action the appellant's Sales and Marketing Director met with the respondent employee on 26th April 1996 at Ashford. The appellant's contemporaneous notes of the meeting records Mr Hickey, the Director, as telling the respondent:
"Little option but to instigate dismissal under stage 3 of the Company's procedures with effect from today. Pay your notice period which would be 8 weeks. Right of appeal against decision to Chief Executive and would want to make clear that if want to do so do within 7 days in writing."
On 30th April Mr Hickey wrote to the respondent in these terms, so far as is material:

"Dear Andrew

I am writing to confirm the outcome of our meeting on 26th April in Ashford.. ..In view of the further serious failings on your part, I confirmed that I had no alternative but to terminate your employment with the Company with immediate effect under Stage 3 of the disciplinary procedure.You will have received payment up to 30th April through Payroll in the usual way. Your P45 and salary slip will be forwarded to your home address in the usual way.I said that the Company would pay you in lieu of your full 8 weeks notice period, which is a tax-free payment. A cheque for this sum will be forwarded to your home shortly.If you wish to appeal the termination of your employment, you should put your appeal in writing to me within 7 days of the date of this letter. Any appeal would be heard by David Harbourne, Chief Executive.If you have any questions about the content of this letter please telephone me or Carol Kingshott."By letter of the same date Carol Kingshott, the Personnel Director, wrote to the respondent enclosing a cheque to the value of £2,923.08 in respect of eight weeks salary in lieu of notice less his personal float of £200.On 2nd May 1996 the respondent wrote to Mr Harbourne appealing against his dismissal. That letter begins:

"NOTICE OF APPEAL - TERMINATION OF EMPLOYMENT

I am writing following legal advice to appeal against the decision made on the 26/04/1996 to terminate my employment from my position with the Hotel and Catering Training Company."The internal appeal was heard on 17th May. It was dismissed and confirmation of that decision was contained a letter to the respondent dated 23rd May.On 24th July 1996 the respondent completed, signed and dated his form IT1, identifying his representative as Mr E M Skilbeck of Hallet & Co, solicitors of Ashford, and showing the effective date of termination ["EDT"] as 30th April 1996. The Originating Application was not presented to the Central Office of Industrial Tribunals until 26th July.

Statutory Provision

S.111(2) of the Employment Rights Act 1996 provides:
"... an industrial 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 it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

EDT

The tribunal found that the EDT was 26th April 1996. In reaching that conclusion the tribunal found that it was the intention of the appellant, accepted by the respondent on 26th April 1996, that his employment should come to an end with immediate effect on that date. The fact that he was reimbursed expenses after that date, and was paid until 30th April (such salary being credited to his bank account on or about 26th April) was not relevant to the continuation of his contract of employment beyond 26th April. The tribunal concluded that both parties were aware on that date at least, that the intention was to end the employment then.

Reasonable practicability

It follows from the tribunal's finding that the EDT was 26th April 1996 that the complaint presented on 26th July 1996 was one day outside the primary limitation period. The tribunal so found and there is no challenge to that finding in this appeal.The next question for the tribunal under s.111(2)(b) of the Act was whether it was not reasonably practicable for the respondent to present his complaint within the primary three month limitation period.The tribunal found that it was not. They record the respondent's evidence in paragraph 8 of their reasons in this way:
"8. The Applicant has stated in evidence that although he knew that the decision of the Respondent was to end his employment on 26 April 1996, he understood it to be normal to take the end of employment as at the end of the month. The Employment Service, for the purposes of his benefit claim treated his employment as ending on 30 April. The Applicant says that there was a lack of clarity which, along with the letter of 30 April, raised an issue in his mind as to the exact date on which his dismissal took effect. He regarded himself as "out of a job" at the end of the month. The Applicant consulted his solicitors about making an unfair dismissal claim in May, after the result of the internal appeal was known. He was aware of the three month limit, and he felt he should leave matters in his solicitors' hands. The Applicant's IT1 pro forma is completed in his own handwriting, and is dated 24 July 1996."
At paragraph 15 the tribunal set out their reasons for finding that Mr Hickey's letter of 30th April was ambiguous and confusing in a number of respects. They list three reasons for that finding, as follows:
"Firstly, the letter is not explicit as to the date on which employment is ended. The letter is worded in the past tense, but in all other respects the Applicant is left in some confusion as to when his contract of employment is actually terminated. Secondly, the Applicant is told that he will receive payment up to 30 April. Whilst it was not the intention of the Respondent to retain the Applicant in its employment until 30 April, the reference in the letter to that date did have the capacity to create the impression that his contractual relationship with the Respondent continued until that date. We find the letter failed to make it clear that the date of termination was 26 April. Thirdly, the letter of 30 April refers to right to appeal against the dismissal "within seven days of the date of this letter". Mr Hickey has conceded in evidence that appeal will normally be regarded as seven days from the date of dismissal, and that in this respect his letter of 30 April is incorrect. We find that this part of the letter itself created a further element of confusion as regards the actual date of dismissal."
Having directed themselves as to certain passages in the judgments of Brandon and Shaw LJJ in Walls Meat Co v Khan [1979] ICR 52 , and the words of s.111(2), the tribunal express their final conclusion on this issue at paragraph 18:
"18. The Tribunal find that the ambiguity created by the actions of the Respondent subsequent to the dismissal was sufficient reasonably to interfere with or inhibit the presentation of the Applicant's complaint. It created a climate of confusion in which both the Applicant and his solicitors could reasonably assume that the dismissal did not actually occur until 30 April 1996, and that therefore the three months' limitation period did not expire until 30 July 1996. In these circumstances we find that the Applicant should not be precluded from relying upon "not reasonably practicable" by virtue of his having consulted solicitors before the three months' time limit expired. In this context, Mr Rose has cited the case of London International College v. Senn (1993) IRLR 333 CA."
The tribunal went on to hold that the one day delay was reasonable.

The Appeal

Mr Griffiths takes four separate points on behalf of the appellant.He first challenges the tribunal's finding at paragraph 15 of the reasons that the letter of 30th April 1996 was ambiguous and confusing. In effect, he asks us to hold that the three reasons given by the tribunal for reaching that finding were perverse or irrational or show that the tribunal had simply misread that letter.We do not propose to rehearse the detailed submissions made by Mr Griffiths on this point, each of which was the subject of rigorous testing during the course of argument. It is enough for us to say that we reject that submission and we shall approach the matter on the basis of the tribunal's findings of fact.His second point is, in our view, of far greater substance. Accepting, as we hold he must, the tribunal's material findings of fact, they come to this. Both parties were aware, on 26th April, that the intention was to end the employment on that date. However, on the respondent's case Mr Hickey's letter of 30th April raised an issue in his mind as to the exact date on which his dismissal took effect. The letter lacked clarity; it was ambiguous and confusing as to the EDT. In these circumstances, so the tribunal concluded, both the respondent and his solicitors could reasonably assume that the dismissal did not actually occur until 30 April, although, as the tribunal found as a matter of fact and law, it did end on 26th April.On these findings, did the tribunal reach a permissible conclusion that it was not reasonably practicable to present the complaint within time?No, submits Mr Griffiths. It is significant to look at the passage cited by the tribunal at paragraph 16 of the reasons from the judgment of Brandon LJ in Walls Meat . That passage begins at page 60F:
"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters."
The judgment then continues:
"Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."
The reference to making reasonable enquiries echoes earlier observations to the like effect by the Court of Appeal.In Dedman v British Building Ltd [1974] ICR 53 , it was said by Lord Denning MR at page 60E-F:
"The English view is that, if he did not in fact know of his rights and the circumstances were not such as to put him on inquiry, then it was not practicable for him to present a complaint. "Unless and until he is put on inquiry, it is clearly impracticable for a dismissed employee to present a claim": see Westward Circuits Ltd. v. Read [1973] ICR 301, 305."
and by Scarman LJ at page 64D:
"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.""
It is accepted by Counsel that although in Dedman the Court was concerned with the meaning of 'practicable', the expression then to be found in the statutory Regulations in force at the time, the "liberal construction" approved by Lord Denning MR and Scarman LJ in that case applies equally to the expression "reasonably practicable" in the later, and now current, legislation.Next, in Porter v Bandridge Ltd [1978] ICR 943 , 948D-E, Waller LJ said:
"The onus of proving that it was not reasonably practicable to present the complaint within a period of three months was upon the employee. That imposes a duty upon him to show precisely why it was that he did not present his complaint. He has to satisfy the tribunal that he did not know of his rights during the whole of the period of 11 months and that there was no reason why he should make inquiries or should know of his rights during that period."
It should be observed that those were cases in which the complainant averred that he was unaware of his right to bring a complaint of unfair dismissal, or alternatively the time limit for bringing such a complaint. That is not the position here. The tribunal found that the respondent had consulted solicitors in May 1996 (he referred to the legal advice which he had already received in his letter to Mr Harbourne dated 2nd May); that he was aware of the three months' limit for making a claim, and that he left matters in his solicitors' hands.In these circumstances, argues Mr Griffiths, the tribunal erred in law in failing to consider whether, in his state of mind, that is, confused as to the correct date on which time started to run for limitation purposes, the respondent's failure, and that of his solicitors advising him, to making any enquiries of the appellant as to the EDT, particularly at the appeal hearing on 17th May, before presenting his complaint out of time, negatived his claim that it was not reasonably practicable to present it within time.In reply Miss Chudleigh has reminded us that, on the authorities, the question of reasonable practicability is essentially one of fact for the Industrial Tribunal. Provided that it has not misdirected itself in law it is not open to this Appeal Tribunal to interfere with the tribunal's exercise of discretion.

Appeals to the EAT

We are conscious of the limits to our jurisdiction. We can only interfere where an error of law is made out.The real question in this appeal is whether the omission to consider the question of inquiry can be said to amount to a failure by the Industrial Tribunal to take into account a relevant factor such as to vitiate the tribunal's decision under Wednesbury principles. Edwards v Bairstow [1956] AC 14 .In our judgment it does. We accept Miss Chudleigh's point that the earlier cases do not purport to lay down a check-list of factors which tribunals must take into account when considering the question of reasonable practicability. However, we think that the principle that mere ignorance of the true legal position is not, per se , sufficient to show that it was not reasonably practicable to present a complaint within time is firmly established. The complainant must go further to show that he was not put on enquiry as to the true position.In these circumstances we have concluded that the tribunal fell into error in not considering whether the respondent was put on enquiry as a result of his confusion following the appellant's letter of 30th April. The decision cannot stand and must be set aside. It is therefore unnecessary to consider Mr Griffiths' further two submissions.

Disposal

Having concluded that the appeal must be allowed, the next question is what course should we now take?Miss Chudleigh submits that if we conclude, as we have, that the tribunal erred in failing to take into account a relevant factor, we should remit the matter to the same tribunal for reconsideration, taking that factor into account.Mr Griffiths invites us to deal with the matter ourselves, all necessary primary findings of fact having been made by this Industrial Tribunal, and to reverse the tribunal's decision and dismiss the complaint.We accept Mr Griffiths' submission. In our view, it being accepted that no enquiry was in fact made by the respondent or his solicitors, the inevitable conclusion must be that the respondent has failed to establish that it was not reasonably practicable for his complaint to be presented within time. If the letter of 30th April raised an issue in his mind as to the date on which his employment terminated, something which he, and no doubt his solicitors, were aware was vital to establishing the start date of the three month limitation period, it was open to him to seek clarification (as he was generally invited to do by Mr Hickey's letter); instead, he proceeded in his Notice of Appeal dated 2nd May on the basis of the decision made on 26th April to terminate his employment; did not raise the matter at the appeal hearing held on 17th May, nor following receipt of the appeal decision letter dated 23rd May; waited until 24th July before completing the form IT1; and then delayed presenting it until 26th July, one day out of time.In these circumstances we can see no grounds for finding that it was not reasonably practicable to present the complaint within time. Accordingly it must be dismissed for want of jurisdiction. In taking that course we are following the approach to be found in the earlier EAT decisions in Times Newspapers v O'Regan [1977] IRLR 101 ; House of Clydesdale v Foy [1976] IRLR 391 and Birmingham Optical Group PLC v Johnson [1995] ICR 459 .