Salinger v Heidelberg Graphic Equipment Ltd [1999] UKEAT 779_98_0107

EAT
Salinger v Heidelberg Graphic Equipment Ltd
[1999] UKEAT 779_98_0107 · 1999-07-01

JUDGE HAROLD WILSON :

Today's hearing has been the preliminary hearing with regard to the appellant's proposed appeal against the second refusal by the Chairman to review his original decision and also against his first refusal. Although that first refusal was the subject of a preliminary hearing when the appeal was first taken by the appellant, no order was made. The Employment Appeal Tribunal, presided over by Lord Johnston, chose instead to make an order inviting the Chairman to reconsider his decision to refuse a review in the light of additional evidence which had been put before the Employment Appeal Tribunal but which had not been before the Chairman. That evidence comprised three reports from Annie Hibbert, Dr Pinney and most particularly Dr Leonard. Those reports were before the Chairman when he reconsidered his decision and he concluded in paragraph 4 of the decision, which was sent to the parties on 10th December 1998, that:
"Balancing these factors I concluded that it was reasonably practicable for the Applicant to have presented her complaint before the end of three months from the effective date of termination. The new doctor's material does not materially differ from the evidence I had before me at the hearing and at the time of the application to review. The existence of that evidence contained in the new doctor's material could have been reasonably known of or foreseen at the time of the hearing. Nor would the new material have materially affected the balance between the factors I had to consider."
That in part is a reference to the provision about new evidence which is contained Schedule 1 of the Employment Tribunals Regulations 1993 at clause 11(1)(d) which provides that a tribunal may review a decision if:
"new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing …"
The evidence in question quite clearly could reasonably have been known or foreseen at the time of the original hearing. It seems to us that the Employment Appeal Tribunal which dealt with the matter at the first preliminary hearing on 16th October 1998 was taking a particularly compassionate view of Miss Salinger's position in that it did not advert to the requirements regarding fresh evidence. We note that in the judgment of the Employment Appeal Tribunal on that occasion Lord Johnston said that it seemed appropriate that:
"… at least an opportunity should be given for the Chairman to review his decision to refuse a review against the background of this new evidence, albeit that he may still conclude, and it is entirely a matter for him, that it does not affect the overall position given in his original decision. That we leave up to him, but we are at least prepared to allow the matter to be reviewed by him against the background of the new material."
That was a compassionate order for the Appeal Tribunal to have made and we have referred to it first because when one goes back to the original decision by the Chairman we have to judge it within the narrow limits of appeal by which we are constrained.We turn to the extended reasons provided by the Chairman on 11th November 1997. On that occasion he had before him evidence from the appellant herself and from letters written on her behalf from her doctor. Those matters were largely dealt with when the substantive appeal had its hearing before a division of this Employment Appeal Tribunal presided over by Lindsay J. He and his colleagues, on 18th May 1999, were considering the decision itself as opposed to the refusal to review. Lindsay J began his judgment by commenting upon the fact that there was before them, on 18th May 1998, no appeal against the refusal to review and he went on to deal with what was before the Chairman in the first place. He said that it was necessary to look at s.111(2), which is the part of the legislation dealing with time limits. Subsection (2) provides that the tribunal shall not consider a complaint unless it is presented "(a) before the end 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." He drew attention to the fact that what governed the matter was not some "just and equitable" test, but whether or not it was not reasonably practicable. The question whether an Employment Tribunal can have been properly satisfied that a timely presentation was not reasonably practicable, is chiefly a matter of law not involving a matter of discretion. The test is whether presentation was not reasonably practicable. A mere desirability for delay would not satisfy the test. A tactical decision for delay could not be expected to satisfy the test. If reasonable practicability is not satisfied then it does not matter how desirable it might be that there should have been an Employment Tribunal decision in the case.Lindsay J quoted from the appellant's third paragraph on IT1 in which she said:
"3. I began a new position on 17 February 1997. By 31 March [ that was the end of the three months period ], I had only been in this job for six weeks. Because of my experience at Heidelberg UK, I still felt very insecure and was afraid to do anything that might 'rock the boat'.
4. … I had not regained sufficient confidence by 31 March to be able to submit an application."As the judge observes she recognises that her ability to submit an application is an important point and she concluded by saying:
"I was fully aware of the three-month deadline; it was neither negligence nor lethargy that led me to miss the final date for an application to be received, but a fear of jeopardising my future prospects of employment, together with the fact that I still had not recovered sufficiently from the psychological effects of the situation."
The appellant submitted and referred to a letter from Dr Leonard, her General Practitioner. That letter made no specific reference to matters which were later contained in a further letter to which I shall refer in a moment. The first letter was dated 15th October 1997 and referred to matters from 15th November 1996. In the penultimate paragraph the doctor expressed the view that:
"There was no doubt that Miss Salinger is very distressed at the way an apparently happy job with Heidelberg led to a sense of being victimised, undervalued and rejected."
In the final paragraph Dr Leonard said:

"It is clear that she had not fully recovered from this stress as yet."

The Chairman of the Employment Tribunal made the following findings of fact in paragraph 4 of his decision. In summary form, he found verbal notice of dismissal on 7th November 1996, effective from 31st December 1996. He further found that the Originating Application had been received by the tribunal on 21st July 1997, although "the Applicant was aware on 31st December 1996 of the three month period". The Chairman found that she had started her new employment on 17th February 1997 and that she had suffered and continued to suffer stress at least until 15th October 1997. (That is the date of Dr Leonard's letter). He found that she made "the conscious decision not to submit an Originating Application for unfair dismissal before she started employment". After she started work "she continued to review the issue of whether to bring an Originating Application" and decided not to do so "until such time as she felt secure in her new job". His final conclusion of fact was that:
"While the Applicant did suffer stress as a result of her dismissal by the Respondent, and that stress continued until 15th October 1997, that was not the reason why she did not bring the Originating Application until 21st July 1997."
The Chairman concluded that:
"It was reasonably practicable for the Applicant to have presented her complaint at any time after 31st December 1996."
The Chairman described a balancing exercise which had to be performed. The evidence which he had came from several sources. The appellant's principal complaint is that the Chairman failed to give what she submits should have been compelling importance to the medical evidence which was before him even at that first hearing for review, but most certainly at the second hearing. The other evidence which the Chairman had before him concerned the quotations from the appellant's own evidence and were other factors which she had repeated before us today. What the appellant says before us today is that she was in such a state that it was physically, emotionally and mentally impossible for her to even contemplate entering an Originating Application, considering what had happened to her, until long after the three month period was expired.That is not what the medical evidence said at that time, although it is quite plain that all the factors which could have led to that opinion being expressed were within the knowledge of the doctors. Subsequently, on 27th August 1997, Dr Leonard wrote again and said that it was clear to him that
"… Miss Salinger's distress meant that it was not reasonable for her to present an application to the tribunal until she felt able to do so. She would have neither the confidence nor the concentration. The diagnosis of post traumatic stress is a significant one and not lightly applied."
We feel bound to say that, putting ourselves in the position of the Chairman, had we been presented with a letter containing that clause, we would not have been prepared to form any view about it without the opportunity to examine the doctor about what he meant. As it was, the Chairman himself, having considered that material, found that it did not:
"materially differ from the evidence I had had before me at the hearing and at the time of the application for a review. The existence of that evidence contained in the new doctor's material could have been reasonably known of or foreseen at the time of the hearing. Nor would the new material have materially affected the balance between the factors I had to consider."
The Chairman described that balance at the beginning of his fourth paragraph in his decision sent to the parties on 10th December 1998. He said:
"In my original decision I had to consider whether a Tribunal had jurisdiction to hear the Applicant's complaint under section 111(2)(b) Employment Rights Act 1996. In considering whether or not it was reasonably practicable for the Applicant to present her complaint (i.e. to complete and submit form IT1, Originating Application) by 31 March 1997 I had to balance the medical evidence before me on the one hand against, on the other hand:- (a) The fact that the Applicant made the conscious decision not to submit an Originating Application until she felt secure in her new job, and (b) the fact that the Applicant was able to look for and secure a new job. She was able to undertake interviews. She was able to perform satisfactorily in her new job."
We have a constraint upon us to ask ourselves the question whether the decision reached by this Chairman was a decision which a Chairman, reasonably and properly directing himself in law, could have reached. We answer that question affirmatively. In doing so it is not to doubt the veracity of what the appellant has said. She has given a graphic description of her own state and condition at the material time. She has complained that for those who are not in that condition it is virtually impossible perhaps to understand it. That may very well be the case, but the evidence from her doctor which would have lent support for what she was saying was available right at the beginning. With reasonable diligence it could have been available before the Chairman's first decision that her application was out of time and should be dismissed. Therefore, in our view, the new evidence which was submitted did not qualify under the Regulations to be considered. However that may be, we can find no reason to disturb either of the Chairman's decisions to refuse a review. Accordingly, if this matter were to go any further we cannot conceive that it has any reasonable chance of success and it must be dismissed at this stage.