MRS D GROSSMAN v BARNET HEALTHCARE [2002] UKEAT 0134_01_2202

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0134_01_2202

Case No Appeal No. EAT/0134/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS D GROSSMANAPPELLANT

BARNET HEALTHCARERESPONDENT

Before

His Honour Judge Wilkie

Date 22 February 2002

[1]APPEARANCES For the Appellant MS ANNA BEALE & MR ROBERT RINDER (Representatives) For the Respondent MR ILYAS BULBULIA (Solicitor) Messrs Nabarro Nathanson Solicitors 1 South Quay Victoria Quays Sheffield S2 5SY HIS HONOUR JUDGE WILKIE QC This is an appeal by Mrs Grossman against the preliminary decision of the Employment Tribunal held at Watford on 7 December 2000 which dismissed her application on the ground that she had not presented it within the time limit prescribed by Section 111 of the Employment Rights Act 1996, it being a case of claimed unfair dismissal brought against Barnet Healthcare. We have been greatly assisted this morning by the able arguments, attractively presented, both by Ms Beale and Mr Bulbulia, on behalf of the Appellant and the Respondent respectively.

[2]The first application by the Appellant was to re-amend the grounds of appeal to add, as an alternative, a perversity ground of appeal. We delayed any decision on that pending the outcome of the arguments on the un-re-amended grounds of appeal. In the light of our conclusion we refuse permission to re-amend.

[3]The Preliminary Hearing before the Employment Tribunal was on the question whether the application was out of time and whether, in the circumstances, time ought to be extended. The findings of fact of the Tribunal are not in dispute. The effective date of termination of Mrs Grossman's employment was 25 April 2000. The Originating Application was presented to the Tribunal on 16 August 2000, being out of time by several weeks. The Applicant had signed and dated her application on 15 July. According to her evidence, which the Tribunal accepted, she posted it within a day or two of 15 July, that is to say by 17 July at the latest, that being a week before the time period expired. There was no evidence as to why it was that the application was not delivered to the Tribunal until 16 August. However, it is apparent that there was a delay in the post.

[4]The application therefore being prima facie out of time the Employment Tribunal had to consider whether to accept the complaint for consideration on the grounds that under Section 111(2)(b) it was presented to the Tribunal within such further period as the Tribunal considers reasonable in a case where it was not reasonably practicable for the complaint to be presented before the end of that period of three months. The first question therefore which the Tribunal had to consider was whether it was not reasonably practicable for the complaint to be presented before the end of that period of three months in circumstances where the application had been posted seven days before the end of the period but had not been received within the period by reason of delay in the post. The Tribunal found as a fact that had the application been received in the normal course of the post it would have been presented in time. In considering therefore whether it was not reasonably practicable in those circumstances for it to be presented before the end of the period the Tribunal adopted the following approach. It said as follows:

"… the Tribunal considered that the approach to adopt was to enquire whether the Applicant behaved reasonably in all the circumstances in ensuring that her Application was received within the time limit which is appropriate to these Applications. In particular, when an Application goes in towards the end of the time limit, then it is prudent for an Applicant to check with the Tribunal Office that the Application has been received – particularly in the case where there is only a matter of a few days left before the time limit expires. There was no evidence that the Applicant had made such a check."

The Tribunal therefore found that it was reasonably practicable for the Application to be presented within that time limit and therefore ruled that it had no jurisdiction to hear the complaint.

[5]Although the Applicant was represented before the Employment Tribunal which heard the preliminary issue by Mr Rinder, a trainee barrister, it was common ground that she had not sought legal advice and was not represented by solicitors when she submitted her application to the Tribunal. There appears nowhere in the Tribunal any consideration of whether that fact might affect the decision which they were called upon to make. There was some evidence and certain fact finding by the Tribunal concerning the nature of medical advice that she had received but there was nothing at all about advice of a legal nature.

[6]This is a well litigated area of the law and there is a deal of reported authority. Indeed, we have this morning had referred to us five cases, one of which is really by way of a historical decision, but four of which represent the current thinking of the Court of Appeal and the Employment Appeal Tribunal on this much vexed question. It is, in those circumstances, perhaps a little surprising that the Tribunal was not referred to authority by either side, both of whom were represented by persons of some legal training, nor did they themselves refer to any authority in their decision. Had they done so, then it is our view that they would not have erred in the way which we conclude that they did.

[7]The leading case is the case of Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

. In that case the Court of Appeal identified the relevant test as follows (in paragraph 34):

"… we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done…. Perhaps to read the word 'practicable' as the equivalent of 'feasible' as Sir John Brightman did in Singh's case" and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months? – is the best approach to the correct application of the relevant subsection."

The Court of Appeal goes on to record 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. However, it goes on to say that dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider a number of matters. Two of them are listed by the Court of Appeal as follows, firstly:

"It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisers' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him."

Secondly:

"In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit. Any list of the possible relevant considerations however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account."

[8]In addition, there are two reported decisions of the Employment Appeal Tribunal which dealt with cases where an application had been posted well in time but where, due to a problem with the post, it had never been received by the Employment Tribunal and it was not until some substantial period of time after the expiration of the time limit that steps were taken on behalf of the Applicant to check whether the application had been received.

[9]The first of these cases is Capital Foods Retail Ltd v Corrigan

[1993] IRLR 430

. In that case the Industrial Tribunal had held that the complaint was not time barred because there is a presumption that what is posted will be delivered. In that case certain steps had been taken long after the time limit had expired by the solicitor acting for the Applicant which revealed the fact that the application had never been received. The Employment Appeal Tribunal overturned the decision of the Industrial Tribunal in that case. It set out its reasoning in paragraph 6 as follows:

"In the present case, it can be accepted that, initially, there was an impediment to the presentation of the complaint, namely, the unexplained failure of the letter dated 25 March 1992 to reach the Central Office of Industrial Tribunals. The existence, however, of that impediment is not sufficient to satisfy the test of s.67(2) unless the applicant, or her advisers, have taken all the steps they should reasonably have taken, in the circumstances, to see that the application was timeously presented."

As a statement of the general principle, that may be said - and indeed, has been said - in the subsequent case of Camden & Islington Community Services NHS Trust v Kennedy , not to be in any way inconsistent with the characterisation of the test as 'what is reasonably feasible' by the Court of Appeal in the case of Palmer . In the Capital Foods case, however, the Employment Appeal Tribunal go on as follows:

"In the present case, that seems to us to depend upon whether the applicant's solicitors took all the steps which reasonably should have been taken to confirm that the application had been duly received. In the ordinary course, an application to the Central Office of Industrial Tribunals would be acknowledged immediately and, indeed, it might be anticipated that the employers' answers to the application would be available within a period of less than five weeks from the presentation of the application. It seems to us to be a matter of ordinary and prudent practice to employ some system of checking that replies which might reasonably be expected within a certain period have in fact been received, and that the conduct of business is taking a normal course. In the present case, it appears that the applicant's solicitors did not carry out any such check, but simply relied upon the assumption that the application had been duly presented. For our own part, we have no hesitation in coming to the view that in doing so they failed to take such steps as were reasonable in the circumstances and accordingly, that the test set out in s.67(2) [as it then was] was not satisfied."

The Employment Appeal Tribunal overturned the decision of the Employment Tribunal on the basis that the Employment Tribunal had failed to apply the proper test by moving straight from the presumption that what is posted will be delivered to accepting the explanation given by the solicitor for the Applicant to the conclusion that it was not reasonably practicable without discussing the question whether reliance on that presumption was, in the circumstances, reasonable.

[10]In the case of Camden & Islington Community Services NHS Trust v Kennedy there was a similar set of circumstances to those which pertained in Capital Foods , with the exception that it did appear that the Applicant's solicitor had some form of system for checking on the progress of the application but it was one which effectively checked on the matter ex post facto . The Employment Appeal Tribunal, noting that the case of Capital Foods was consistent with the Palmer test, overturned the Employment Tribunal's decision that it had not been reasonably practicable for the application to be presented in time and stated as follows:

"We are satisfied that by that test [in Capital Foods ] the Employment Appeal Tribunal were holding that it is not just any check on the part of a solicitor which will do – it must be such a check as will establish whether the conduct of business is taking a normal course. In other words, in our judgment, the check which the Employment Appeal Tribunal had in mind and were laying down as the appropriate check is not an ex post facto check in order to discover what has happened perhaps many weeks or even months afterwards, but provides for such a system of checking as will enable a solicitor to find out at the time, at or near the time, that replies which by then might reasonably have been expected to have been received have in fact been received and that the conduct of business is taking a normal course."

In paragraph 13 the Employment Appeal Tribunal say further as follows:

"In our judgment this is not what the stringent test in Corrigan requires of a solicitor who must be expected to be well aware of the cardinal importance of establishing at, or very close to, the time by which it should have been acknowledged that an application he has made has been received by the Central Office of Industrial Tribunals."

Again, in paragraph 17, they reiterate:

"A competent solicitor practising in this field must be taken to appreciate the vital importance of complying with time limits strictly and having in place a system designed to ensure that such limits are complied with at the time when they are supposed to be being complied with."

[11]By way of contrast, we have been referred to an unreported decision of the Employment Appeal Tribunal dated 13 November 1998, in the case of Cwmorthin Slate Quarry 1994 Co Ltd v Davies . That was a case in which the Employment Tribunal had in a case in which the Applicant had not been legally represented at the point of making the application satisfied the test that it was not reasonably practicable for him to have submitted his application in time in circumstances where he had filled out his application in good time, handed it to someone at the Job Centre who had undertaken to post but, whether or not they had posted it, the application had never been received by the Tribunal. In that case the Employment Tribunal obviously had referred to it, or referred itself to, the Capital Foods case and in its decision had said as follows:

"Capital Foods addresses the test of reasonable practicability in the context of an application lost in the post where the Applicant is represented by legal advisers. In the present case, the Applicant was a litigant in person at the relevant time. He was not being advised by Job Centre, which had undertaken to do no more than provide him with the relevant form and to post it to the Tribunal. As a litigant in person, it was not unreasonable for him to assume that his Application had been sent and received and that matters were proceeding. "

That approach was described by the Employment Appeal Tribunal as being a wholly proper one and that the decision of the Employment Tribunal was wholly in accord with decided authority that Capital Foods could properly be distinguished.

[12]We agree with the Employment Appeal Tribunal's view expressed in the Cwmorthin Slate Quarry case that there is, on the authorities, a world of difference between a case in which an Applicant acting in person submits an application in good time so that in the normal course of post it would be received in time and has no alarm bells sounding when the Tribunal takes several weeks (as in this case) to acknowledge receipt of the application, and on the other hand, the circumstances which pertain where the Applicant is acting through a firm of solicitors, whose professional duty encompasses having in place systems which will alert them when applications sent in good time are not acknowledged as having been received in what they will know to be the normal course of business.

[13]The errors to which we find the Tribunal in this case fell, were, firstly, to fail to have regard to the fact that this Applicant was in person as not represented by solicitors. Secondly, as a consequence of that, applying a test of prudence which was appropriate to apply to solicitors who are acting for applicants and not applicants in person. Thirdly, in failing to pose for themselves the question which the Court of Appeal has said will frequently, and in our view in this case, was, highly relevant, namely whether the fact that the application did not arrive in time was contributed to substantially by the fault of the Applicant. It seems to us that a person acting without the benefit of legal advice is entitled to assume that a document will arrive in the normal course of post and is entitled to assume that it will be dealt with in the course of its business by the Employment Tribunal in a reasonably timeous way. It is not incumbent on an Applicant to contact the Tribunal office within, in this case, a period of a few days if she has not yet received an acknowledgement that the document has arrived. It seems to us that that would be a quite unreasonable imposition to require of applicants in person.

[14]It therefore follows that, in our judgment, this Employment Tribunal erred in law in its approach to this first limb of the question. Had they applied the law properly, we have no doubt that they would have concluded that it was not reasonably practicable for Mrs Grossman, a litigant in person, to have submitted her application in time when she, in all good faith, posted it seven days before the expiration of the time limit.

[15]We therefore have to decide whether in upholding this appeal we should direct that it should be remitted to a Tribunal to decide the other limb, namely, whether the period after the time limit expired within which the application was received was reasonable, or whether we have sufficient information ourselves to decide that today. We have concluded that the latter is the case. We know when the document was received; we know when the complaint arose; we know that the parties are well represented and that there is no conceivable prejudice to the Respondent in our deciding this case today. Our conclusion is that the three weeks or so delay is reasonable. Therefore this is a case which the Employment Tribunal does have jurisdiction to determine.

[16]Therefore that is our ruling today. We uphold the appeal and we direct that the Employment Tribunal shall proceed to consider the substance of Mrs Grossman's complaint for unfair dismissal.