PUNCH RETAIL LTD v MISS S L MORRIS [2001] UKEAT 281_01_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 281_01_2303Case No Appeal No. EAT/281/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PUNCH RETAIL LTDAPPELLANTMISS S L MORRISRESPONDENT
Before
His Honour Judge Peter Clark Mrs A Gallico Mr P R A JacquesDate 23 March 2001
[1]APPEARANCES For the Appellant MISS A GUMBS (of Counsel) Instructed by: Weightmans Solicitors 41 Spring Gardens Manchester M2 2BG For the Respondent THE RESPONDENT IN PERSON JUDGE PETER CLARK This is an appeal by the Respondent employer before the Leeds Employment Tribunal, Punch Retail Ltd, sitting on 2 January 2001, against that Tribunal's majority decision promulgated with Extended Reasons on 31 January, that it was not reasonably practicable for the Applicant, Miss Morris, to present her complaint of unfair constructive dismissal to the Employment Tribunal within the ordinary three month limitation period, and permitting the claim to proceed to a full merits hearing.[2]The facts, for the purposes of this appeal, may be shortly stated. The Applicant was employed by the Respondents as a public house manager and licensee from September 1996 until her resignation, which the Tribunal found took effect on 22 June 2000. She did not present her Originating Application to the Tribunal until 4 October 2000. The primary limitation period expired on 21 September.[3]The Tribunal found that at the time of her resignation the Applicant was in a highly emotional state and that continued for several weeks, during which time she was receiving treatment from her doctor. Then, in July, acting on her doctor's advice she went on a course run by the British Institute of Innkeepers. Towards the end of that course, on about 20 September, she learned of her rights and of the three month time limit. Prior to that she had a vague notion that there was a six month time limit. Once she learned of the true position she took free legal advice from a solicitor, who told her that she was then out of time and should take steps to present an application to the Tribunal. She went to the Job Centre, obtained the form ET1, completed it and presented it to the Leeds Tribunal on 4 October. In these circumstances the preliminary issue for the Tribunal was whether she was able to rely on the escape clause in section 111(2)(b) of the Employment Rights Act 1996.[4]On that question the Tribunal were divided. All members agreed that the question depended on the Applicant's knowledge about the time limit.[5]The majority expressed their conclusion in this way:
"3 (A)……….As far as the majority of the Tribunal is concerned, the Tribunal is satisfied that it was not until the latter part of the course, on or about 20 September, that the Applicant found out that there was a three-months' time limit and that the vague knowledge that there was a six-month time limit before that inhibited the Applicant from seeking advice. It meant that because she thought that it was six months she really did not need to seek advice and therefore that explains why she did not, until she knew, as a result of the course she was on, that the time limit was three months. 4. The Tribunal take the view that once she found that out, she then acted promptly."
Conversely, at paragraph 5 of the Reasons:
"5 The minority view is that the fact that she knew there was a time limit, but she says it was a vague knowledge, put her under a duty to make enquiries and the fact that she did not do so meant that it was reasonably practicable, knowing that there was a time limit for her to take advice in that period and therefore to present her application in that period."
We bear in mind that the question of reasonable practicability in this context involves primarily matters of fact for the Employment Tribunal. Walls Meat Company Ltd v Khan [1978] IRLR 499 , Palmer v Southend Council [1984] IRLR 119.[6]However, that said, it is notable that in an appropriate case the Court of Appeal will reverse a decision of the Employment Tribunal, upheld by appeal by the EAT, on this point, see for example Schultz v Esso Petroleum Ltd [1999] IRLR 488 .[7]Is there any error of law in the majority's reasoning which vitiates their conclusion? Miss Gumbs submits that there is and formulates the point in this way; a mistaken belief of an essential matter can be regarded as grounds for holding that it was not reasonably practicable to present the claim in time, provided that it can be shown that the mistaken belief was itself reasonable. The mistaken belief will not be reasonable if it arises from the fault of the complainant in not making such enquiries as she should reasonably have made in all the circumstances.[8]We accept that that proposition is supported by the observations in Khan of Lord Denning, M R, paragraph 15, Shaw LJ, paragraphs 33 - 34, and Brandon LJ, paragraph 44. Miss Gumbs submits that the majority failed to consider whether the Applicant's ignorance of the time position was itself reasonable.[9]In answer to that submission Miss Morris contends that it is implicit in the majority's reasoning that her ignorance of the true position as to time limits was reasonable, and that finding was a permissible option. Miss Gumbs has an alternative submission that it was not, and that that conclusion, if reached by the majority, was perverse.[10]On the principal argument we are driven to accept Miss Gumbs' submission. The majority's reasoning is this; the Applicant had a vague notion that the time limit was six months; therefore she did not need to make enquiries to discover the true position. It goes no further than that. There is no attempt by the majority to judge the reasonableness of her mistaken belief; compare the approach of the minority member. In this respect, in our judgment, the majority fell into error, see Khan .[11]Having identified a material error of law, on which this appeal must be allowed, the next question is whether we must remit the limitation question for rehearing before a fresh Employment Tribunal, or whether we can make a judgment on the reasonable practicability question ourselves, exercising our powers under section 35(1)(a) the Employment Tribunals Act 1996 .[12]Both Miss Gumbs and Miss Morris invite us to take the latter course. We feel able to do so, particularly ourselves having had the advantage of seeing and hearing Miss Morris as did the Employment Tribunal, coupled with that Tribunal's findings of primary fact.[13]We heard from Miss Morris that in late July 2000 she saw an advertisement in her local paper for the Innkeepers Course at a nearby college. She had been on an earlier course in 1997. The course involved four modules over eight weeks, with attendance at college two days per week. She was excused a practical placement, bearing in mind her experience in the licensed trade. She telephoned and arranged a place for herself at four days notice. She went on to complete and pass the course and to receive the appropriate certificate on 28 September 2000.[14]She had been aware of her right to bring a claim of unfair dismissal prior to her resignation. As a pub manager she managed staff and had received some training in disciplinary procedures to be followed, including the giving of warnings.[15]In these circumstances we take the same view as did the minority member in this case. We find that she was under a duty to make an enquiry as to the time limitation position, she being unsure what it was. She was capable of doing so at least from late July, that is during the last two months of the three month limitation period. There was no physical or mental impediment to her doing so. If she could undertake a challenging course over that time, which took up only two days per week, given her management experience she could and should have sought advice, as she later did, either from the Citizens Advice Bureau or a solicitor, or perhaps even a tutor on her course. It was not reasonable for her to make no enquiry until it was too late. In these circumstances we hold that it was reasonably practicable for the complaint to be presented within time. The claim is therefore time-barred and must be dismissed.[16]During the course of argument Miss Morris raised matters which went to the merits of her claim. As we sought to explain, the merits do not bear on the narrow limitation point with which we are concerned in this appeal.