London Borough Of Havering v Turner [1998] UKEAT 521_98_2511

EAT
London Borough Of Havering v Turner
[1998] UKEAT 521_98_2511 · 1998-11-25

JUDGE D PUGSLEY :

This is an appeal from a Chairman sitting alone when he found that the time for presenting the Originating Application in relation to the complaints for unfair dismissal and for written reasons for dismissal was extended to 22 August 1997. At its hearing, on 9 January 1998, the Tribunal dealt with a preliminary issue which the Tribunal identified in paragraph (1) of that decision as:
"was it reasonably practicable for the Applicant to present his complaints within the statutory times limits?"
The Applicant, Mr Turner, was employed by the Respondents as an architect. Mr Turner was born in 1945; he started working for the local authority in 1989 and the effective date of termination of his employment was 18 August 1995. The Application was received by the central office on 22 August 1997, namely 2 years from the effective date of termination of his employment. Hence the trial of this preliminary issue.There were some 4 claims before the Tribunal: a claim for redundancy payment, a claim for compensation for unfair dismissal, a claim for written reasons for the dismissal and a claim for what was called 'statement of details requested'.The Tribunal found that there was no question of time limits being offended in the application for redundancy payment and it is right to say that there is no appeal by the Appellants in respect of that.However there is an appeal against the Chairman's decision that the Application for Unfair Dismissal and written reasons for dismissal does not fall foul of the provisions set out in Section 111 of the Employment Rights Act. We note that the Notice of Application was received about 2 years after the effective date of termination.At Paragraph 6 (2) of the decision the Tribunal accurately sets out the Statutory provisions with a claim in the respect that an Industrial Tribunal cannot consider a claim of unfair dismissal
"unless it is presented...
before the end of the 3 month period beginning with the effective date of termination;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."The Tribunal then went on to deal with the facts of the Case.The Tribunal made clear that it accepted Mr Turner's evidence without hesitation, taking into account his physical condition, as observed by the Tribunal and the way in which Mr Turner gave evidence. The basis upon which Mr Tuner said it was not reasonably practicable for him to make the Application was that, although well-qualified - holding a diploma in architecture and being a member of the Royal Institute of British Architects - he had suffered a complete mental breakdown.A Dr Peters, an occupational health physician, in December of 1994 had written:
"Mr Turner is suffering from a severe chronic anxiety state. He had been unwell for at least two months prior to his going off sick..."
In April of 1995, Dr Peters saw Mr Turner again and said Mr Turner was no better than when he last saw him and recommended he be retired on the grounds of ill health. He issued a certificate to that affect and it was acting on that opinion that the Respondents terminated Mr Turner's employment after 18 August 1995.The Tribunal did not have any medical or psychiatric report about Mr Turner's condition, its causes or its prognosis, except that referred to by Dr Peters. The Tribunal made the finding, in Paragraph 14:
"Mr Turner appeared to be in a state of stress... shaking with anxiety... [was] still receiving treatment, including anti-depressants... from a specialist psychiatric clinic"
The Tribunal accepted Mr Turner's assertion that he had 'no concept of time'. He was not capable of applying to the Tribunal in time and he was a 'mental cripple'.The Tribunal then made the finding that on the basis of the evidence before it, it came to the conclusion that it was not reasonably practicable for Mr Turner to make the application earlier than he did and extended the time for doing so until 22 August 1997.We regret to say that in our considered view this is a fatally flawed decision. Fatally flawed because although the Tribunal had accurately stated the Statutory provisions it then went on to mis-state, on more than one occasion, the test to be applied. We are well aware of those decisions that quite rightly say it is not for an Industrial Tribunal's reasons to be combed with myopic and microscopic attention to see if there is some minor misdirection lurking somewhere in the subsidiary paragraphs of a decision. Moreover we are well aware of the expense and the human misery of cases being remitted back to Industrial Tribunals. But unfortunately, as far as this case is concerned there was, in our view, a fundamental misdirection which goes to the very heart of the decision making process.In Paragraph 1 of his Extended Reasons the Chairman stated the issue to be:
"Was it reasonably practicable for the Applicant to present his complaints within the statutory time limits?"
That was a correct statement of the first part of the statutory test but it ignored the second part of the test. Paragraph 7 reads as follows:
"...The statutory three month time limit having admittedly expired, the burden is upon Mr Turner to show that it was not reasonably practicable for him to bring these claims until the time that the application was presented."
At Paragraph 9, the decision states:
"It would follow that the only issue for me to decide is whether it was reasonably practicable for Mr Turner to present his application before the 22 August 1997."
The same error is repeated at Paragraphs 13 and 16.The issue, quite simply, is this: there is a twofold test and the test of reasonable practicability and the test of what is reasonable are different tests, though one accepts the very skilful argument put forward to us by Ms Alexander that in some ways the reasonably practicable test is in many circumstances a more difficult one for an applicant to cement. But there are two tests.The two tests raise different issues. It is not difficult to envisage situations where someone was struck down, be it by trauma or by medical misfortune, who was not conscious for a period of three or four months thus rendering it not reasonably practicable for them to present an Originating Application to a Tribunal. But thereafter the test moves and a Tribunal is under a duty to consider whether it was reasonable and that involves a consideration of the position of the Applicant employee and of the Respondent employer. The Tribunal has an overwhelming discretion - an overriding discretion - when it is to determine the issue of reasonable practicability to consider the further period it considers reasonable. There is no evidence at all, and all the indications are to the contrary, that those considerations were ever matters that the Chairman dealt with.We are well aware that a Tribunal should not be required to solemnly state in liturgical form every single issue that is being raised. But this is a short matter, it is a fundamental matter and we cannot take any other view than that the total absence of any consideration of the test of the reasonableness of the period after the expiry of the three month period has ever formed any part of the decision-making process or thought of this Chairman. We accept that the concept of reasonable practicability is encrusted with numerous authorities and is an issue that may properly and reasonably be heard by the Chairman sitting alone. One has to say that in the overwhelming majority of cases the issue raised is simply of reasonable practicability. But an Originating Application not presented until about 2 years after the effective date of termination is in the experience of this Tribunal rather rare. Careful consideration needs to be given to the question of whether it is reasonable to extend that period, as the Employment Act makes clear in Section 111. That is a matter upon which the help of lay members sitting with a Chairman might well, on broad concepts of reasonableness, have been extremely helpful.Where one is dealing with the much wider concept of such further periods as a Tribunal considers reasonable we consider it is in many cases, and certainly in this one, advisable that that matter should be considered by a full Tribunal.For those reasons we have decided that the case should be remitted and it should be remitted to a differently constituted Tribunal, as we have indicated, and we think it highly desirable it should be to a full Tribunal. It is right to say that a further issue is not one that we have considered; namely whether it is right to call for further evidence before the Employment Appeal Tribunal, because it is, I think, accepted on both sides that that is now an academic matter since the case will be returned to the Tribunal to be reheard and it will be up to the parties to determine what evidence they will seek to adduce to put before the Tribunal.We do not in any way wish anything we have said to be taken as a hint by us as to how the Tribunal should decide the case. This is not a case where we consider it right to ourselves reverse the decision of the Tribunal as opposed to ordering its remission - that would be to usurp the function of the Industrial Tribunal. All we are saying is parties have a right to have the case determined under the Statutory provisions and sadly in the context of this case we do not think it is clear from the decision that that has been done. For the reasons we have given this case ought to be remitted to a freshly constituted Tribunal.