BARRY CONTROLS LTD v MR J F LAWES [2001] UKEAT 1481_00_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1481_00_1907Case No Appeal No. EAT/1481/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BARRY CONTROLS LTDAPPELLANTMR J F LAWESRESPONDENT
Before
Mr Justice Charles Mr A E R Manners Mr S M SpringerDate 19 July 2001
[1]APPEARANCES For the Appellant MR BRUCE CARR (of Counsel) Instructed By: Messrs Heald Nickinson Solicitors 24 Park Street Camberley Surrey GU15 3PL For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE CHARLES : This is an appeal by a company called Barry Controls Ltd. It is the Respondent in proceedings before an Employment Tribunal. The Applicant in those proceedings is a Mr J.F. Lawes.[2]The appeal is against a decision of an Employment Tribunal sitting at London (South), the Extended Reasons for which were sent to the parties on 23 October 2000. That decision was that the Employment Tribunal had jurisdiction to hear the Applicant's claim of unfair dismissal, notwithstanding the fact that it had been presented outside the statutory time limit.[3]The Applicant, Mr Lawes, has not appeared before us to argue this appeal. On 24 December 2000 this Tribunal received a facsimile message from the Runnymede Citizens Advice Bureau stating that they had contacted their client, Mr Lawes, and he had confirmed that he would not oppose the appeal. Later on 9 February 2001 this Tribunal received a letter from that Citizens Advice Bureau that they were no longer acting on behalf of Mr Lawes. More recently, in response to a standard form request we were notified that Mr Lawes did not intend appearing today.[4]Whether or not the Applicant, Mr Lawes, opposes this appeal, or has simply decided not to attend, it is necessary for the Appellant to establish that the Employment Tribunal has erred in law and therefore that this appeal should be allowed.[5]The Appellant, through Counsel, correctly accepts that it has a difficult task on this appeal because it is an appeal against the exercise of a discretion by the Employment Tribunal. The difficulties of that task are compounded by the following points, namely:(a) as they point out this Employment Tribunal was an experienced one and it is clear from the Extended Reasons that they had regard to the correct statutory provision (namely section 111(2) Employment Rights Act 1996 which they set out in paragraph 4 of their Extended Reasons), and(b) in paragraph 6 of the Extended Reasons the Employment Tribunal identify the principles which are to be applied in the application of the two-stage process set down by that section.[6]In our judgment correctly the Appellant does not assert that any of those principles are incorrect. The only attack made by the Appellant on the statement of approach which the Employment Tribunal indicate they have applied through setting out the section and those principles is that the Employment Tribunal have omitted, or have not given sufficient emphasis to, factors to which we shall return. Important dates and events These appear from paragraph 7 of the Extended Reasons in which the Employment Tribunal record their findings of fact: 26 August 1992 The Applicant commenced employment. 31 August 1999 The Applicant's employment was ended and he was told that the reason for his dismissal was that he was redundant, and the Employment Tribunal find that the Applicant accepted that reason in good faith. 18 October 1999 The Applicant commenced work at a new employer Delta. 14 February 2000 The Applicant attended at the Appellant's premises to resolve an issue regarding outstanding bonus payments. On that occasion he saw someone working as a storeman doing what he believed was the job he had been doing before his dismissal. 22 March The Applicant visited the Citizens Advice Bureau for the first time in connection with a possible claim against the Appellant. 23 March The Applicant visited the Citizens Advice Bureau again. 31 March 2000 The Applicant left his employment at Delta because (the Employment Tribunal find) he felt that he was being victimised by two fellow workers. 4 April 2000 The Applicant visited the Citizens Advice Bureau again. 4 May 2000 The Applicant visited the Citizens Advice Bureau again when he met a Ms Warrander for the first time. She gave him advice but did not provide him at that stage with any application form or guidance leaflet in connection with proceedings before an Employment Tribunal. 8 May 2000 The Citizens Advice Bureau sent the Applicant the form ET1 by first class post. 15 May 2000 The Applicant sent off the ET1. The Employment Tribunal find that he had completed the form on his own after telephoning a Regional Office of Tribunals for advice. Conclusions of the Employment Tribunal[7]The Employment Tribunal concluded that it was not until 14 February 2000 that the Applicant was aware that he may have a cause of action against the Appellant. Whilst the Appellant does not accept that the Applicant in fact has a good claim of unfair dismissal it is accepted by the Appellant that the Applicant learned of circumstances on 14 February 2000 which led him to believe that he did have, or may have, such a claim.[8]On the basis of this conclusion the Employment Tribunal concluded that it was not reasonably practicable for the Applicant to initiate proceedings before the end of the statutory three month period beginning with the effective date of termination (namely the end of November 1999), or indeed before 14 February 2000.[9]The Appellant does not attack this conclusion but points out correctly that the date of discovery relied on by the Applicant (14 February 2000) is some two and a half months after the expiry of the statutory time limit and that this should be taken into account in determining the second stage of the statutory test, namely whether the further period referred to in section 111(2)(b) Employment Rights Act 1996 is reasonable.[10]The second part of the Employment Tribunal's reasoning relates to their conclusion that the further period of delay was reasonable. The further period of delay[11]It was submitted on behalf of the Appellant that the starting date for the "further period of delay" was the effective date of termination (i.e. the end of November 1999). As a matter of statutory construction, we agree.[12]But we do not agree that the Employment Tribunal erred in law by referring to the further period of delay as one of three months and three days and thus as one which commenced on 14 February 2000. This is because in our judgment it is axiomatic that if it was not reasonably practicable for the Applicant to issue proceedings before 14 February 2000, when he discovered the relevant information, it was also reasonable for him not to have presented a claim prior to that date. It follows that in our judgment the effective issue before the Employment Tribunal was whether the period of delay after 14 February 2000 was reasonable.[13]However we accept that in considering whether the delay after 14 February 2000 was reasonable factors to be borne in mind are that(i) that date is some two and a half months after the effective date of termination, and(ii) that there is ample authority to support the view that when towards the end of, or after, the expiration of a time limit a potential applicant discovers information which leads him or her to believe that he or she has a claim, that potential applicant should proceed with reasonable diligence in presenting his or her claim. The Applicant's illness[14]The findings of the Employment Tribunal as to the illness of the Applicant and its effect on him are important to their overall conclusion.[15]Those findings were based on the evidence of the Applicant himself. They were not supported by any medical evidence. Further they were not supported by any medical records or doctor's notes relating to the periods under consideration.[16]Additionally, in his ET1 the Applicant did not rely on any illness and, as we understand it, the first time that his illness, and its effect, were raised as a, or the, reason for the delay in presenting the Applicant's claim was during the hearing before the Employment Tribunal.[17]In paragraph 7(g) of the Extended Reasons the Employment Tribunal find that the Applicant was off sick with depression in 1996 (ie some three years before the termination of his employment with the Appellant). They also found that the Applicant found the experience of hospitalisation and treatment at that time uncomfortable and distressing and that he did not wish to go through the same experience again. They concluded that accordingly whenever the Applicant felt unwell and visited the doctor he did not make any mention of suffering from depression. In paragraph 7(h) the Employment Tribunal record that the Applicant believed that his treatment at Delta, his new employer, worsened his depression and go on to say this:
"We find that the experience during this particular period of employment was extremely distressing to him and we are prepared to accept, albeit without any supporting medical certificate, that he had not been cured of depression and that this experience exacerbated his condition."
The Extended Reasons continue with the following paragraphs: (i) After leaving employment at Delta the Applicant made an application for Job Seeker's Allowance. The Respondents relied on the fact that he had a job after dismissal and subsequently applied for Job Seekers Allowance as evidence that he was in a fit state of health to take care of his affairs. They submitted that he could have, and should have, presented his claim before 16 May 2000. (j) The Tribunal gave careful weight to this argument and we find on the evidence presented to us, including the impression the Applicant made as a witness, that it did not necessarily follow that the Applicant was in sufficient control and command to enable him to make the necessary enquiries and obtain the necessary forms to commence action in an Employment Tribunal. (k) It was put to the Applicant that he sought advice from the Citizens Advice Bureau to bring a claim of unfair dismissal against the Respondents so that he would have something to fall back on given his recent resignation from Delta. The Tribunal does not accept this argument. We find that the Applicant visited the CAB before he left Delta and although there appeared to be a coincidence in the timing there is no causal link between his subsequent resignation from Delta and his desire to bring these proceedings. We find that ever since he discovered Mr Brandon doing what he thought was his job he felt aggrieved but was, at the time, preoccupied with maintaining his job at Delta under very difficult circumstances. This is a state of mind which is well understood by the industrial members of the Employment Tribunal. (l) We find that the Applicant did not know how to initiate proceedings in the Tribunal and how to put forward a case. It is not entirely clear, given the Applicant's condition, that he even understood, until Ms Warrander advised him, that there was a three month time limit subject to an escape clause. We find that the Applicant lacked both the knowledge and the confidence to commence proceedings hence his reliance on the Citizens Advice Bureau. (m) We accept the Respondent's contention that the Applicant did not produce any supporting medical evidence to show that he was suffering from any medical condition in the period beginning 14 February 2000 and the presentation of his claim on 16 May. We have taken into account the evidence that he has given as to his period of hospitalisation for depression and his experiences since dismissal. (n) The Tribunal consider that there was sufficient evidence including the impression he created in the witness box to suggest that the Applicant was in a fragile state of mind. He did not strike us as a person who would have been able to do the necessary research, make the necessary enquiries and complete the paperwork to enable him to bring Employment Tribunal proceedings. It is quite obvious to us as an experienced Employment Tribunal that there was an impediment that was both psychological and physical that prevented him from taking the necessary steps to initiate proceedings until his first visit to the CAB on 22 March. The delay thereafter was not through any fault of his own. The CAB advisers were awaiting Ms Warrander's advice. (o) The Originating Application form and guidance leaflet were sent to the Applicant by first class post on 8 May. He received it on the 9 th or 10 th . He signed the form on the 15 th and posted it the same day. It reached the Tribunal on 16 May. Accordingly from the moment he was given advice and the necessary forms there was a further delay of approximately a week. During this period he sought advice from a Tribunal and drafted the Application on his own. The delay was reasonable. 8 The first question for the Tribunal to decide was whether it was not reasonably practicable for the Application to have been presented within three months of the effective date of termination. It is common ground that the Applicant did not know until 14 February that he had a possible cause of action. The second question is whether or not it would be reasonable to grant a further period of extension of approximately three months and three days from the time the Applicant first discovered that he could bring a claim. We consider that the further period of delay is reasonable on the grounds that the Applicant was at the material time suffering from a physical and mental condition allied to his earlier experience of depression and this was exacerbated by having to endure, in his new job, very unpleasant working conditions. About five weeks after he discovered Mr Brandon working in stores he visited the CAB for advice. The delay from 22 March until early May was because he relied on expert help promised to him by the CAB volunteers. This help was not given until Ms Warrander got involved. She explained in the course of her submissions that it is CAB policy not to apply any pressure on vulnerable clients but to leave them to make their own decisions. On 4 May the Applicant made his last visit to the CAB. Following that meeting on 8 May the application forms were sent to him. He acted expeditiously on receipt of the application form. The Tribunal does take into account the fact that the person who apparently made the decision to terminate the Applicant's employment is no longer working for the Respondents. In this case the Tribunal does not consider that that places any significant difficulties for the Respondents given their case that the Applicant was fairly dismissed by reason of redundancy."[18]We pause to comment that we do not follow what physical impediment the Employment Tribunal are referring to.[19]In the skeleton argument put in on behalf of the Appellant it was asserted that the reasoning of the Employment Tribunal was that the delay up to 22 March 2000 was reasonable because during that period the Applicant was " suffering from a physical and mental condition … and this was exacerbated by having to endure in his new job, very unpleasant working conditions ". Having regard to the terms of paragraph 7(n) of the Extended Reasons we can well understand why Counsel made this point.[20]However in our view an alternative interpretation of the Extended Reasons is that the Employment Tribunal were of the view that the psychological and physical impediment they found existed continued throughout the period up to the presentation of the ET1 and indeed, it continued up to and was demonstrated at the hearing before the Employment Tribunal. It seems to us that this view is consistent with the reliance placed by the Employment Tribunal on their impression of the Applicant when he gave evidence.[21]Counsel for the Appellant agreed that this was an alternative reading of the Extended Reasons. The point as to the relevance of the period over which any disabling factor existed is raised in paragraph 6(i) of the Extended Reasons but as appears from the preceding two paragraphs in our judgment the Employment Tribunal do not deal with it clearly in their reasoning Our reasoning[22]We shall first consider the Extended Reasons on the basis that on their true interpretation the Employment Tribunal were of the view that the physical and mental condition they identified continued up until presentation of the ET1 (and indeed continued thereafter). As to this there are two issues. First whether the Applicant was suffering from a mental (or physical) condition and secondly what the effect of that condition was on his ability to present a claim after 14 February 2000.[23]We are very conscious of the points that the Employment Tribunal heard the Applicant give his evidence and themselves recognised that they did not have before them any medical evidence. We are also very conscious of the fact, as they remind us in the Extended Reasons, that they are an experienced Employment Tribunal. However we feel driven to the conclusion that the Employment Tribunal erred in law in concluding:(a) that the Applicant suffered from a relevant mental/psychological (and/or physical) condition, and in particular(b) that the effect of such condition was that it precluded the Applicant from taking, or made it difficult for him to take, steps to present his claim at an earlier date, on the basis of the evidence before the Employment Tribunal.[24]In this context it seems to us that the conclusion reached by the Employment Tribunal in paragraph 7(j) of the Extended Reasons contradicts other findings made by them unless it is read on the basis that the mental/ psychological (and/or physical) condition did not have a relevant effect after 22 March 2000. This is because elsewhere in the Extended Reasons they find that from that date the Applicant visited the Citizens Advice Bureau for the purpose of progressing his claim and that thereafter the Applicant was able on the basis of advice received on the telephone from a Regional Office of Tribunals to prepare his ET1 himself and present it.[25]As to this there is no finding that the Citizens Advice Bureau had difficulty in dealing with the Applicant because of any illness, or its effects. Ms Warrander did not give evidence and the reference to the point she made in her submissions as to the policy of the Citizens Advice Bureau not to apply any pressure on vulnerable clients but to leave them to make their own decisions is not linked to any finding of fact made by the Employment Tribunal. Indeed, it seems difficult to make that link given the findings in paragraph 7(f) as to what the Applicant was told by the different advisers at the Citizens Advice Bureau he saw prior to his first meeting with Ms Warrander on 4 May 2000. The fact that Ms Warrender did not fill in the ET1, or help the Applicant to do so, but simply sent him the relevant forms might be related to such a link because it leaves the decision to the Applicant. But, on the other hand, it indicates that the Applicant was not prevented by the effects of any illness, or vulnerability, from dealing with the mechanics of presenting a claim and it could be said that it was a course Ms Warrender would not have taken if she had felt the Applicant was psychologically vulnerable.[26]It follows that if the Employment Tribunal were proceeding on the basis that the Applicant's illness had a relevant effect up to the date of presentation of the ET1, they were making fine distinctions as to the effect of that illness in the absence of making findings as to its effect on the Applicant's relationship with the Citizens Advice Bureau.[27]In our judgment, in those circumstances, the Employment Tribunal erred in law in reaching the conclusion that they did in reliance upon their own lay view as to the effect of the illness they thought the Applicant was suffering from. In our judgment in the absence of some expert medical evidence to support their lay view that such illness had such a continuing effect, it was not properly open in law to the Employment Tribunal to find that it did. This is because the conclusion of the Employment Tribunal is a matter of opinion relating to the existence and nature of an illness as to which expert views would be relevant and as the actions of the Applicant provided compelling evidence that his illness did not have the continuing effect the Employment Tribunal found and relied on they did not have a sound evidential basis for their conclusion in the absence of some expert evidence to support[28]We now turn to consider the Extended Reasons on the basis that the reasoning contained therein is that the Applicant's illness had a relevant and continuing effect up to 22 March 2000 (the first date upon which the Applicant went to see the Citizens Advice Bureau).[29]On this basis similar points can be made as to the findings of the Employment Tribunal on the existence and effect of the Applicant's illness. A difference is that the inconsistent, or potentially inconsistent, actions of the Applicant are not directed to making a claim. But on the basis that these points as to the conclusions on the Applicant's illness and its effect are left on one side the Appellant argues that in any event the Employment Tribunal left out of account, or failed to give any or any sufficient weight to, factors which were important ingredients to a proper exercise of their discretion under section 111(2) Employment Rights Act 1996. We agree.[30]The Appellant's argument as to this can be demonstrated by posing the question whether by reference to the authorities the Applicant would have been able to establish that it had not been reasonably practicable for him to present his claim within the statutory three month time limit if he had discovered the basis upon which he could make such a claim and had first visited the Citizens Advice Bureau within one month of his dismissal.[31]In our judgment in those circumstances there is a compelling, if not an overwhelming, argument by reference to the authorities that the Applicant would have failed to establish that it was not reasonably practicable for him to bring his claim within the three month time limit on the basis of delays in obtaining advice and forms from the Citizens Advice Bureau unless a relevant and contributory factor to those delays was the effect of an illness suffered by the Applicant.[32]In our judgment this demonstrates that if the Employment Tribunal proceeded on the basis that the effect of the Applicant's illness ended on 22 March 2000 they erred in law in failing to take into account or to give proper weight to the points that:(a) from that date it was incumbent upon the Applicant and his advisers to proceed quickly, and(b) a period in excess of the statutory three month period passed from the date upon which the Applicant made the relevant discovery on 14 February 2000 to the date upon which he presented his claim. The relevance of point (b) is that in the absence of a relevant and continuing effect of his illness there were compelling, if not overwhelming, arguments that it would have been reasonably practicable for the Applicant to present his claim within three months of 14 February 2000 and thus that he did not present it within a reasonable time after the expiry of the three month statutory period. Our conclusion[33]We were urged by Counsel for the Appellant to set aside the decision of the Employment Tribunal and decide the issue of jurisdiction ourselves.[34]Having regard to the errors of law we have identified above on the alternative readings of the Extended Reasons we have decided that we should set aside the decision of the Employment Tribunal.[35]After some hesitation we have concluded that it would not be appropriate for us to decide the issue of jurisdiction ourselves and that we should remit the issue of jurisdiction to a differently constituted Employment Tribunal.[36]Our essential reasoning as to this is that it is clear from the Extended Reasons that this experienced Employment Tribunal, having had the benefit of seeing the Applicant give his evidence, were of the view that he suffered from a mental/ psychological condition which at least potentially had an effect on his ability to address issues relating to the presentation of proceedings. Also it is apparent that they were of the view that justice would be served by the merits of the claim being heard and determined. It seems to us that relevant factors as to that conclusion would be that(i) on 14 February 2000 it seems that an existing employee of the Appellant was able to explain why from the viewpoint of the Appellant the Applicant had not been misled when he accepted that he was redundant and therefore it seems that the Appellant was not prejudiced by any delay, and(ii) a dispute as to whether an employee has been misled is a serious one and in our view its nature is a factor in the exercise of discretion as to what constitutes a reasonable time for bringing a claim based thereon after the expiry of the primary and short limitation period.[37]As we have explained in our judgment the Employment Tribunal erred in law by concluding in the absence of any supporting medical evidence that the effect or effects of the illness they found the Applicant to be suffering from was a relevant factor particularly after the Applicant had first consulted the Citizens Advice Bureau.[38]In those circumstances (and naturally with the benefit of hindsight) we have reached the conclusion that notwithstanding the fact that neither side invited the Employment Tribunal to adjourn for the purposes of obtaining medical evidence that the procedurally fair course for the Employment Tribunal to have adopted once it had concluded in the light of the Applicant's evidence that his illness and its effects were relevant was to indicate this view to the parties and to give them the opportunity (if so advised) to call medical evidence.[39]Having regard to our conclusion that the Employment Tribunal erred in law in reaching the conclusions they did as to the nature and effect of the Applicant's illness we are of the view (again with the benefit of hindsight) that such indication should have been on the basis that the Applicant was being offered an opportunity to obtain medical evidence.[40]In our judgment the correct course for us to adopt is to remit this case to a newly constituted Employment Tribunal before which the Applicant would have this opportunity.[41]As indicated earlier in this judgment that medical evidence should, in our judgment, be directed to both the nature and effect of the Applicant's illness. Further, as to its effect or potential effect, its impact both before and after the Applicant consulted the Citizens Advice Bureau should be examined. Additionally it needs to be considered whether it can be asserted on medical grounds that someone who suffers from the Applicant's illness, but who has demonstrated the ability to attend at his former place of work to resolve an issue regarding outstanding bonus payments at a time when it seems that he was having difficulty in his new employment, would nonetheless experience difficulty or problems in taking steps to present his claim of unfair dismissal.[42]For the reasons we have given we set aside the decision of the Employment Tribunal and remit this case to a differently constituted Employment Tribunal.