QUAGLINOS RESTAUTANT LTD v MS A HAMILTON-FREED [2001] UKEAT 0594_01_0307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0594_01_0307Case No Appeal No. EAT/0594/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
QUAGLINOS RESTAUTANT LTDAPPELLANTMS A HAMILTON-FREEDRESPONDENT
Before
Mr Justice Douglas Brown Ms S R Corby Miss S M WilsonDate 3 July 2001
[1]APPEARANCES For the Appellant MR J BENNETT Advisor Instructed by The Employment Law Firm ELF House 48C Oaktree Road Marlow Bucks SL7 3EE MR JUSTICE DOUGLAS BROWN This is an Interlocutory appeal from a decision of the Employment Tribunal sitting at London South on 8 March 2001 when the Employment Tribunal unanimously decided that time should be extended for the presentation of the Originating Application to 1 December 2000. That decision is now challenged by the Respondents to the application Quaglinos Restaurant Ltd. The Applicant is Ms A Hamilton-Freed.[2]The extension was made under Section 111 of the Employment Rights Act 1996 which provides that an Employment Tribunal shall not consider a complaint unless it is presented to the Tribunal before the end of a period of three months beginning with the effective date of termination, or within such further period as the Tribunal considers reasonable where it is satisfied that it was not reasonably practicable for the complaint to be presented in time. This is familiar ground for Employment Tribunals and for this Appeal Tribunal and there have been many decisions here and the Court of Appeal over many years.[3]The complaints of the Appellant are as follows,(i) that the Employment Tribunal misapplied or misconstrued the test under the section we have just summarised(ii) that the Tribunal misdirected itself in law in that the Chairman restricted cross-examination of the Applicant to the question whether she could reasonably believe that an ACAS officer was analogous with a member of the Employment Tribunal staff.[4]Further, (iii) the Tribunal misdirected itself, or misapplied the law, in respect of the only decision referred to in the Extended Reasons Jean Sorelle Ltd v Ryback [1991] ICR 127, and that having referred itself to that authority the Tribunal exercised its discretion to extend the time on wrong principles, in that no reasonable Tribunal properly directing itself could have drawn an analogy between an Employment Tribunal employee and an officer of ACAS. Had the Tribunal correctly applied the authority in that case and other authorities it would have had to conclude that it was reasonably practicable for the Originating Application to have been presented in time.[5]Further, (iv) it is said that the Tribunal misdirected itself and misapplied the law by refusing to allow cross-examination or hear submissions in relation to the date of the last alleged breach of contract, the Chairman having said that this was not a relevant issue and did not permit any points or discussion relating thereto.[6]In the course of his admirable submissions Mr Bennett who appears today for the Appellant added a further potential ground in that he suggested on the chronology of events that is found by the Employment Tribunal the advice that the Applicant received which we shall refer to shortly from an ACAS staff member and an employee of the DHSS was superseded well before the expiry date by receipt of the IT1 which itself contained clear instruction as to how to calculate the time for presentation of the application. That potential ground finds no reflection in the ground concerned but it is a ground which had been strongly pressed on us today.[7]The decision of the Employment Tribunal as we have said was on 8 March and we are told that the hearing said to be for 2 days is now fixed for 8 and 9 August and so this appeal is critical to the further prosecution of this claim.[8]There is no challenge to the basic findings of fact made by the Employment Tribunal which were these:
"Her employment ended on the expiration of her extended notice on Friday 1 September 2000. It was not disputed that she posted the originating application to the Employment Tribunal at London Central by recorded delivery on 29 November and that it was received by London Central on 1 December 2000. The application was therefore one day late and unless the Tribunal extended time there was no jurisdiction to hear her claim of unfair dismissal."
[10]The Tribunal found that the Applicant was 29 years of age. She had worked in the restaurant trade since leaving drama school. In August 1998 she worked at another restaurant and then was transferred to the Respondent's employment in August 1999 and she gave her notice on 26 July and left at the end of her contract on 1 September 2000.[11]Following the termination of her employment she was concerned with obtaining payment of her wages up to 1 September and a reference to enable her to obtain further employment. Such was her concern that she contacted ACAS and gave them (she remembers not whom) an explanation of what had happened. ACAS advised her to obtain an originating application and to make her application by 1 December 2000. She went to the offices of the DHSS and spoke there to a receptionist and obtained an IT1. She was told by the receptionist again that the application had to be made by 1 December 2000.[12]The Tribunal found as a fact that she had that originating application at her home from mid September 2000 and she as we have said sent it off on the 29th so that it could arrive on 1 December and it did arrive on that date. The Tribunal further concluded at paragraph 7(ii) of their extended reasons that:
"The Applicant was under a misapprehension as to the meaning of the expression "three months from the effective date of termination"
. She believed that the application had to be delivered on or before 1 December 2000. She gained this belief not from any advisor but as a result of speaking to ACAS and the receptionist at DHSS. In relation to the ACAS representative, it is a fact that ACAS and the Employment Tribunals are associated and it was not unreasonable for her to assume that the information she was given was correct. It may not have been the case in relation to the receptionist at DHSS, but as it confirmed the advice she had already been given she was entitled to assume, as she did, that 1 December was the latest date upon which she could present her application." And the Tribunal then found in those circumstances it was not reasonably practicable for her to have put in her application on or before 30 November because she believed that she had one extra day. The Tribunal then found that she had brought her claim within that period of time and they extended the time. They decided that it was not reasonably practicable and that was the basis for their decision. They then gave directions in relation to the hearing.[13]Mr Bennett amplifying the grounds of the appeal submits whilst accepting the factual findings that there are a number of misdirections and misapplications of the law. Central to his submissions is the case of Rybak v Jean Sorelle Ltd , a decision of this Court presided over by Knox J. That was a case where without doubt the Industrial Tribunal had more information than was available to the Employment Tribunal in this case. The advice which was given was from in the first place a Citizens Advice Bureau as to the final date or presentation of the application. That advice was wrong and it was confirmed by a telephone call from the Citizens Advice Bureau to an official of the Industrial Tribunal.[14]This Court in that case dismissed the Employer's appeal holding that although there was a general principle that a failure by an advisor such as a solicitor, a trade union official or Citizens Advice Bureau officer to give an employee correct advice regarding the time limit would prevent the employee from claiming that it was not reasonably practicable to apply in time. That principle did not apply to advice from any and every third party. An Industrial Tribunal could properly treat advice from an Industrial Tribunal employee as being a different category, in that there was a clear factual difference between the advice obtained by a claimant from someone asked to advise in the prosecution of his claim and advice from an employee of the Industrial Tribunal, a body charged with resolving the dispute; and accordingly the Tribunal was entitled to find as a fact that it was not reasonably practicable for the employee to have presented her complaint in time. At page 135 Knox J said:
"Conversely we reject the suggestion that the authorities lay down any such inflexible rule as that advice from third parties cannot constitute a basis for a finding that it was not reasonably practicable to comply with the time limit."
[15]Mr Bennett submitted that ACAS here were in an advisory role. They were similarly to a Citizens Advice Bureau or a solicitor and they were not in a position of being an independent body such as the Employment Tribunal and he submitted that the Tribunal had wrongly relied on that case and wrongly relied on what they regarded as an association between ACAS and the Employment Tribunal.[16]In our view that submission is not well founded. The reliance by the Employment Tribunal on the decision in Rybak v Jean Sorelle Ltd was entirely appropriate. That case was decided clearly that there was no inflexible rule that advice from third parties could not constitute a basis for finding and the decision from the Court did not have the limited effect which Mr Bennett contended for. Whether or not ACAS are associated with the Employment Tribunal, there they are an independent body who are not in this case acting for the Applicant. They provided advice but even if they fell within the prohibited category mentioned in Rybak there remains the advice given by the undoubtedly independent member of the staff at the DHSS who gave the same and confirmatory advice. In our view no question of law arises in that regard.[17]So far as cross-examination is concerned and the restrictions placed upon it by the Chairman we were told by Mr Bennett who did not appear below but his partner did, that the Chairman had prohibited cross-examination on any issue other than the relationship between ACAS and the Employment Tribunal. That is urged with the way the matter is put in paragraph 4 of the skeleton argument. It says this:
"It is submitted that the Employment Tribunal has misdirected itself at the Hearing on 8 March because it restricted cross-examination to the issue of whether the Respondent could reasonably assume that an ACAS representative to whom she spoke was giving her correct information. It is submitted that this was incorrect because the burden of proof was on the Applicant to show why it was not reasonably practicable to have submitted her application in time."
[18]Mr Bennett suffers from the disadvantage of not having been present but told us that he did receive information from his colleague as to how the matter have proceeded and he found that the statement in the skeleton argument as putting it mildly an embarrassment. He made a suggestion that it might have contained a misprint or a word had been wrongly inserted. But in any event however the Chairman approached the question of cross-examination how the proceedings are run is in the discretion of the Tribunal. They can make case management decisions during the hearing as to how questioning is to take place and to criticise that and attempt to elevate the criticism to an error of law is in our view something that cannot succeed before this Court.[19]A point which Mr Bennett stressed was that the chronology as found by the Tribunal identified an arguable point which had not surfaced in any of the decision of this Court over many years, namely that when she had in her hands the correct advice in clear terms in the IT1 that superseded any erroneous advice she had been given from whatever quarter it came and he submitted that that raised an arguable point which should go to the full Court for consideration.[20]We have to say that we do not agree. The approach of this Court to decisions of the Employment Tribunal on applications of this kind is to be found in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 where May LJ said this:
"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie."
Although not mentioned in the extended reasons it is inconceivable that the Employment Tribunal were not aware of the wording of the IT1 just as every Employment Tribunal and constitution of this Court would be similarly aware. It would be very remarkable if the mere holding of the form after the advice is given represents a bar to an Applicant taking advantage of this section of the Act. It must be implicit in the decision of this Employment Tribunal and every Employment Tribunal where this point is argued and raised as to advice but at some stage the form has come into the possession of the Applicant.[21]It is, we think, an unrealistic submission or contention that having had firm advice from people in authority that this Applicant should have then taken herself to the form and cross checked that advice by reading the detail of the form. We remind ourselves that this Employment Tribunal as any Employment Tribunal is sitting as an Industrial Jury and they do so equally when they decide questions of this kind.[22]Having considered all the potential matters of law raised by Mr Bennett none of them in our view show any error of law on the basis of this decision of this Tribunal and this application is refused.