HFC BANK v MRS BRENDA HARTLEY [2001] UKEAT 1468_99_2501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1468_99_2501Case No Appeal No. EAT/1468/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HFC BANKAPPELLANTMRS BRENDA HARTLEYRESPONDENT
Before
Mr Justice LindsayDate 25 January 2001
[1]APPEARANCES For the Appellants MR A CRAWFORD (Solicitor) Messrs Donne Mileham & Haddock Solicitors 100 Queens Road Brighton East Sussex BN1 3YB For the Respondent MR M JACKSON (Solicitor) Messrs Lake & Co Solicitors 6 Albemarle Way London EC1V 4JB MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a full hearing the appeal of HFC Bank plc in the matter Mrs Brenda Hartley v HFC Bank plc . Today, Mr Crawford has appeared for the Bank and Mr Jackson for Mrs Hartley. The Bank appeals against a ruling by the Employment Tribunal by a Chairman, sitting alone, that Mrs Hartley's IT1 could proceed, notwithstanding its having been presented one day late. The Employment Tribunal held that it had not been reasonably practicable to present it sooner and, in effect, that is the issue before us or, more accurately, whether there was an error of law in that conclusion. The chronology begins on 13th July 1999 when Mrs Hartley lodged an IT1 claiming unfair dismissal of the constructive dismissal kind. She had been employed by the Bank from 1st August 1990 to, she said, 14th April 1999. She had terminated her employment, she said, by giving notice. She said:
"Because of the Respondents fundamental breaches of contract the Applicant felt her position was untenable and that she had no option but to resign. Her resignation was communicated in a letter dated 17 March and handed to SY [ Mr Stephen Young ] on 18 March, the next day that he was in the office. In an attempt, and no more, to minimise the inconvenience that her departure would cause, the letter gave the Respondents four weeks notice of her intention to leave."
The dates given under Box 4 are, as I have mentioned, from 1st August 1990 to 14th April 1999. So, in effect, she is there asserting that although her letter was dated 17th, it was handed over on 18th and that the notice that it gave expired on 14th April 1999.[2]Now it is immediately to be noticed that the IT1 was dated within three months of the termination date as alleged and that is important because of the statutory provisions in this area. Section 111(2) of the Employment Rights Act 1996 says this:
"Subject to subsection (3), an employment 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."
That reference to "the effective date of termination" is a reference back to section 97 of the Act. Section 97(1) reads:
"Subject to the following provisions of this section, in this Part "the effective date of termination"- (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires, …"
There is no contrary provision. So that is the important date to have in mind.[3]Accordingly, the IT1, in order to have been duly presented, rested upon the notion that there had been a notice given expiring not earlier than the 14th April 1999. However, on 27th July 1999 the Bank's IT3 indicated that the dates of employment given by Mrs Hartley were wrong. In Box 5 of the IT3 "Are the dates of employment given by the applicant correct? (Tick appropriate box)", the answer given was "NO". In their appendix at 1.1 the Bank said:
"The Respondent will contend as a preliminary point that the Employment Tribunal does not have jurisdiction to consider this complaint because the application was made to the Employment Tribunal out of time."
In 1.2 they said:
"The Applicant's employment with the Respondent terminated on the basis of a letter of resignation dated 17 March 1999, which gave the date of leaving as 13 April 1999. A copy of that letter is annexed. That resignation was accepted by the Respondent. …"
[4]If the date of expiry of the Notice was indeed the 13th April 1999, then Mrs Hartley's IT1 was out of time and she would then have had to make out a case as to what one might call "reasonable impracticability" within the terms of section 111(2)(b). The Bank exhibited her letter. It was indeed dated 17th March 1999. It was addressed to Mr S Young at HFC Bank and it read as follows:
"Dear Mr Young I herewith give four weeks notice from the above date of my intention to leave the company on 13th April '99. Yours faithfully Brenda E Hartley"
[5]That being the case, a preliminary hearing was arranged in order to deal with the time bar point. On 5th November 1999 it became before the Employment Tribunal, Mr J R Hardwick, sitting alone, at the tribunal at Reading. His decision was as follows:
"1. The decision of the Tribunal is that it has jurisdiction to hear the applicant's complaint that she was unfairly dismissed. 2. This Originating Application will now proceed to a full hearing before a fully constituted Tribunal of three with a time estimate of one day and the Tribunals Standard Directions (SD1) will be issued with the Notice of Hearing."
He had held that the effective date of termination was, as had been accepted in argument before him and not challenged, the 13th April 1999, that, therefore, the IT1 had been out of time but that the Employment Tribunal, that is to say himself, was satisfied that it had not been reasonably practicable for the IT1 to be presented before the end of three months, that is to say on or before 12th July 1999, and that the delay of one day was within a reasonable further period and hence that the IT1 was duly presented and that the Employment Tribunal had jurisdiction and could go on to a merits hearing in the way that his decision indicated. That decision, with extended reasons, was sent to the parties on 18th November 1999. By the 15th December 1999 the Bank had lodged a Notice of Appeal and it took the point, in essence, that the Employment Tribunal's decision on the issue of reasonable practicability was downright perverse.[6]It is necessary to look at the facts found by the Employment Tribunal and they include the following. First of all, Mrs Hartley handed the letter bearing the date of 17th March to her principal, Mr Young, on 18th March 1999. The letter read as we have cited it. Mrs Hartley had not kept a copy of the letter. She was not, in fact, required to work out her notice but on 26th March was told that she should leave at the end of that day. She instructed solicitors telling them she had resigned by giving a letter to her employers on 18th March giving them four week's notice. The solicitors had asked her for a copy of the letter but she had told them that she had not kept one. The solicitors, calculating four weeks from 18th March, reckoned that her notice would have expired on 14th April. There were negotiations between the parties such that the solicitors were not given instructions actually to launch proceedings until the end of June 1999. By the 12th July the solicitors had completed an IT1 and attempted on that day to fax it to the Reading Employment Tribunal on telephone no: 01734 568 066. The tribunal continued:
"10. … The solicitor's fax machine operates on the basis that if it is unable to get through to a number in the first instance, the documents and numbers keyed are stored in the memory and, at various intervals, the machine will redial that number in an endeavour to obtain a connection. If it cannot get through at all, a report will be printed stating the fax had not been sent. It was not until the evening of 12 July that the applicant's solicitors realised that the fax had not gone through that day. This was about 6.45 p.m.""
The solicitors were not greatly concerned at this position because they were of the view that the last day for presentation was the following day, 13th July 1999. The next day they made enquiries as to which the tribunal said this:
"On the next day, enquiries were made regarding the fax number and they were informed that the number for the Reading Office had changed to 0118 9-568066"
One notices that the 568066 has remained the same; it is the introductory numbers that have changed, the area code. The tribunal continued:
"The Originating Application was received at the Reading Employment Tribunal Office at 12.56 p.m. on 13 July. Accordingly, it had been presented one day beyond the prescribed time limit."
The Employment Tribunal accepted that the onus was on Mrs Hartley as to the issue impracticability. They said:
"11. … The onus was on the applicant to show that it was not reasonably practicable for the application timeously to have been presented under the principles enunciated in Porter -v- Bandridge Ltd (1978) IRLR 271. The question was, was it reasonably feasible for this application to have been put in time under the principles in Palmer and Saunders –v- Southend on Sea Borough Council (1984) IRLR 119. It clearly was in this case. …"
It had been common ground that the effective date of termination was 13th April 1999 and the tribunal held:
"17. … The solicitors had final instructions to launch proceedings at the end of June, which they did on 12 July approximately 8 working days from receipt of instructions. This in my view, is a reasonable period."
However, at the end of the extended reasons, the Chairman said:
"20. I conclude that it was not reasonably practicable for this application timeously to have been made because of the two impediments to so doing principally referred to in paragraphs 16, 18 and 19. This application therefore should go forward to a full hearing."
It is not entirely clear, at any rate to me, exactly what the two impediments thus described were, but the fact that Mrs Hartley, having kept no copy of the letter of notice, gave what transpired to be misleading instructions to her solicitors, instructions that led them to thinking that the 13th July 1999 was the last available day for presentation, was perhaps one impediment. The other plainly was that the solicitors had been using the wrong fax number. As to that impediment, if impediment is the right terms for it, the tribunal said in their paragraph 18 as follows:
"The further unforeseen impediment apart from the ambiguous instructions from the applicant, was the facsimile machine at the Reading Employment Tribunal Office. The respondent had the old Reading number which had changed more than a year prior but which was acceptable on telephone lines to Reading until June of this year. Had the application been made in June 1999, it would have got through on the 01734 number. Not only did the solicitor's up-to-date software divulge 01734 as the code for Reading, but also the documentation from the Tribunal Agency Service produced at the hearing. I also take note that the applicant's solicitors are from the East side of London and not local to Reading. They genuinely believed that by putting the completed application on their facsimile machine on 12 July, it would be despatched in the usual way and that the application would have been lodged on 12 July."
[7]So far as concerns the law, the reasonable practicability test is one of fact for the Employment Tribunal - see Walls Meat Co Ltd v Khan [1979] ICR 52 at 57 per Shaw LJ. But that is not to say that the Employment Appeal Tribunal and, in turn, the Court of Appeal cannot intervene. A recent example is to be found in the case London Underground Ltd v Noel [2000] ICR 109 where the Court of Appeal reversed both the Employment Appeal Tribunal and Employment Tribunal and in the course of doing so emphasised just how confined the reasonable practicability test is. It is not whether the delay was reasonable or whether it would be reasonable to extend time. It is not whether it would be just and equitable to extend time, cf. section 76(6) of the Sex Discrimination Act 1975 , section 68(6) of the Race Relations Act 1976 and the Disability Discrimination Act 1995 , Schedule 3, paragraph 3(2). The reasonable practicability test raises the question whether it was reasonably feasible to present the complaint within the time allowed - see the Noel case at page 114E-G citing May LJ in Palmer and Saunders v Southend on Sea supra at 384-385.[8]On the facts found in the case at hand, there is, unfortunately from Mrs Hartley's point of view, only one possible answer to that question. If the solicitors on 12th July 1999, having found that the fax was not going through on 01734 568066, had made the feasible enquiries, whatever they were, which in fact they made on the next day, it would have been entirely feasible then, still on 12th July, to have faxed the correct suffix 0118-9. Alternatively, if it needs to be an alternative, they could on 12th July 1999 have faxed the Employment Tribunal at its central office or gone through to Reading on the up-to-date number shown in any up-to-date in telephone directories or upon enquiring to directory enquiries. It was not suggested that either of those sources would have given the wrong number. What the tribunal said was: "11. … When the applicant's solicitors had realised the facsimile had not been successful on 12 July, they did not consider directory enquiries to obtain the fax number or lodging the application with the central office of the Employment Tribunals" and obviously the reason for that was because of the confusion that we have spoken of, namely that they felt they had the ability to send a timely fax on the following day. The only reason that such entirely feasible steps to get the right number were not taken on 12th July was surely the solicitor's view that the 13th July would be acceptable. There is no ground for any view that the correct number was somehow unascertainable on 12th July.[9]We fear that the Chairman, no doubt and perhaps rightly (it is not a matter for us) fearing that Mrs Hartley would have no recourse against her solicitors because of the way she had instructed them and seeing it to be just that Mrs Hartley should be entitled to have her IT1 dealt with on the merits, wanted to stretch matters in her favour. We cannot blame him for that. But unfortunately the authorities show that the reasonable practicability test is not so elastic as to allow such an enlargement. The Chairman's decision was, we fear perverse in the technical sense, even despite our accepting Mr Jackson's submission that that is a high and difficult hurdle. Whatever good intentions might have lain behind it, the decision was, in our view, literally perverse. We are therefore obliged to set aside the decision which was sent to the parties on 18th November 1999.[10]But is that an end of the matter? There was no finding of fact that the effective date of termination was 13th April 1999. There had not needed to be, because it had been common ground. If there could be no argument to the contrary, we would have to dismiss Mrs Hartley's IT1 here and now. But is there no argument to the contrary? The notice letter was, at least arguably, ambiguous. The letter and notice it gave did not get to HFC by way of Mr Young until 18th March 1999. It indicated that it gave four week's notice. Four weeks from 18th March 1999 would expire at midnight on 14th April 1999. But the letter said that the four week's notice ran "from the above date", that is to say 17th March 1999, and would expire on 13th April. But were it to expire on 13th April 1999, given that it was handed over on 18th March 1999, it would not be four week's notice. Which was to prevail? Was it that it was a four week notice actually given on 18th March expiring on 14th April or was it a notice giving less than four week's notice to expire on 13th April? That was the sort of problem of construction addressed by Lord Hoffman in Mannai Investment Co Ltd v Eagle Star [1997] AC 749 and in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] IRLR 896 . If, to use Lord Hoffman's phrase - something has gone wrong, how is the problem to be resolved? Would evidence of the background be admissible and if so what would it be? If the Bank had insisted on Mrs Hartley working out her notice could it not have insisted that she worked right down to the end of her ordinary working hours on 14th April, namely four weeks after it, the Bank, had received her notice. If Mrs Hartley had insisted on full remuneration could she not have required it to be paid for the 14th April? How far, if at all, if the letter was, arguably, ambiguous, could not only evidence of the background but perhaps of the subjective intentions or wishes of either or both sides have been admissible and taken into account? It would have been quite unfair to expect Counsel to deal with this difficult problem before us as neither of them had the authorities before them and, of course, the case had below proceeded upon the basis of common ground. But these questions, once they are raised, are not easy questions. There is no decision of the Employment Tribunal upon them because, of course, they were not raised. Our mention of them is, of course, not a case of Mrs Hartley trying to save the decision in her favour by taking a point not taken below, but rather upon our having to pause to consider whether, after setting aside the Employment Tribunal's decision, we can with sufficient confidence conclude that the only decision truly open to the Employment Tribunal, we having set aside the one which the Chairman in fact made, was that section 111(2) was not satisfied and that Mrs Hartley's IT1 should therefore be dismissed here and now.[11]Because of the doubts we have mentioned, we do not have that sufficient confidence. Accordingly, we see it as right to remit the matter, assuming that the parties are unable to come to terms, to the Employment Tribunal. We think it appropriate that it should be heard by a panel of three, but we see no reason why its Chairman should not be Mr Hardwick if that is not inconvenient from a listing point of view. Accordingly we set aside the decision of the Employment Tribunal and remit the matter as indicated.