MISS M A OPARE-ADDO v WANDSWORTH BOROUGH COUNCIL [2002] UKEAT 0740_01_0512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0740_01_0512Case No Appeal No. EAT/0740/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M A OPARE-ADDOAPPELLANTWANDSWORTH BOROUGH COUNCILRESPONDENT
Before
His Honour Judge J Altman Mr J HoughamDate 5 December 2002
[1]APPEARANCES For the Appellant MR T OKUNOWU (Trainee Solicitor) Messrs Phoenix Nova Solicitors Ranan House 456 Kingsland Road London E8 4AE For the Respondent MR R TATA (Solicitor) Messrs DHM Solicitors 40 High Street Crawley West Sussex RH10 1BW HIS HONOUR JUDGE J ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at London South on 20 April 2001. The claim of the Appellant applicant was dismissed on that day on the ground that the claim for discrimination in job evaluation and unfair dismissal was not presented within the time prescribed by law for the presentation of a claim before the Employment Tribunal.[2]The matter is governed by 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 – (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."
Accordingly, in order to satisfy itself that it had jurisdiction, the Employment Tribunal had first to establish the effective date of termination, then to determine if the complaint was presented within three months thereafter and, if it was not so presented, whether to extend the period. That itself involved two questions; first, deciding whether the Tribunal was satisfied that it was not reasonably practicable for the Applicant to present the complaint within three months, secondly, and if it was so satisfied, whether the claim was in fact presented within such further period as the Tribunal considered reasonable.[3]The sequence of events is set out by the Employment Tribunal in its decision. It appears that the Applicant was of long service with the Respondents, beginning her employment in February 1982. However, on 11 August 2000, she was given a letter notifying her of dismissal. That letter is in the documents that we have seen and is referred to by the Tribunal. In the relevant paragraph it says:
"After giving all the facts very careful consideration, I concluded that you be dismissed from the Council's service on the grounds of your continuing absence from work. Your last day of service is 11 August 2000 and you will be paid 12 weeks pay in lieu of notice. You will also be paid any outstanding annual leave owing to you and the Personnel Section will notify the Payroll Section accordingly."
[4]We have been told that the particular procedure that has been constructed by the Respondents to deal with the sort of illness absences that appeared to characterise this case at the time provides an ostensible right on the part of the employer to terminate employment summarily as an alternative to giving notice and to make payment in lieu of notice. No one has pretended in this case that the conduct of the Applicant was such as to warrant dismissal for gross misconduct. Accordingly, there is that rather curious provision that the Respondents have created for themselves.[5]In their decision, having quoted that letter, the Tribunal pointed out that it was the Respondent's case that termination was effective on that date. In their conclusions the Tribunal said at paragraph 12:
"We have no doubt that the effective date of termination of the Applicant's employment was Friday 11 August 2000 and that the Applicant cannot have been confused into believing that this was a proposal to dismiss."
The Applicant's application to the Tribunal was received on 16 January 2001 and accordingly, if the Applicant had been given the notice which the law entitled her to have, of three months, her claim would have been in time. It is argued on the part of the Applicant, first, that on the facts of this case the Tribunal were in error in concluding the effective date of termination. Secondly, it is said that even if they were not, that the way in which the employers created this so called entitlement for themselves, was such as to make it not reasonably practicable to make the complaint earlier, or at any rate, made it reasonable not to make the complaint until after the end of that time.[6]We have been referred to two cases; one is Chapman v Letheby & Christopher Ltd [1981] IRLR 440 dealing with the construction of a letter of dismissal. In that case, Mr

Justice Browne-Wilkinson (as he then was) held that:

"Whether in a particular case a dismissal letter evinces an intention on the part of the employers to terminate the contract at once, wages being paid in lieu of proper notice, or an intention only to terminate the contract at a future date, depends upon the construction of the letter itself."
The letter in the Chapman case was ambiguous and contained a reference to ten weeks' notice which was held therefore to postpone the effective date of termination by ten weeks. We were also referred to Adams v GKN Sankey Ltd [1980] IRLR 416 where Mr Justice Slynn (as he then was) drew a distinction between a case where an employee is dismissed with notice but has a payment instead of having to come into work, and a case where in fact there is no notice at all and a payment is made in lieu of notice. Again, in that case, where there was reference in the letter to twelve weeks' notice of dismissal, although there was an ambiguity, the Employment Appeal Tribunal held that there was a postponement of the effective date of termination to the end of that notice.[7]Both those cases set out helpful principles but the facts are wholly different from the case before us. It seems to us incontrovertible in this case that the letter of 11 August constituted an immediate termination of the contract of employment. It was not ambiguous. It provided for both a last day of service and for a payment in lieu of notice. We can find that there was no error in law in the Employment Tribunal identifying the effective date of termination as of being on that date. Nonetheless it is plain to us that the provision of that Code upon which the Respondent relied is unlawful. It is not possible, it seems to us, for contracting parties to contract out of clear well established and hallowed statutory provisions designed for the very purpose of creating protection for employees by simply removing that protection in a Code of Practice. Unlawful though the summary termination was in this case, nonetheless that was the date upon which we find the Tribunal were driven to find that it took place.[8]The Applicant then appealed. The Respondents have a Code which governs appeals from dismissal. In paragraph 6 it is quoted by the Employment Tribunal. They find that:
"The Council's Rules provide that appeals under the Code shall be heard within 12 working days from the date of receipt of a written Notice of Appeal …"
Whether that is two weeks or not, we are not sure. What twelve working days amounts to when it comes to calculating them in the modern environment with working days is imprecise, but certainly there can be no doubt that by about 23 or 24 August this appeal should have been heard. It was delayed by at least two months and was not heard until 23 November. Again, it seems to us, it is difficult to understand the way in which the Respondents, being an organisation of the standing of this one, feels able simply to bypass its own Code whilst dismissing an employee for failing to abide by her side of the bargain. It is suggested that it is difficult to collect members together to sit on appeal panels and that is some sort of an excuse. We will return to that in due course. The fact is that this appeal was not heard until 23 November.[9]Not only that, but the Applicant, as all employees, is provided with a guide which is designed, very properly and in a well intentioned way on the face of it, to draw to an employee's attention the right to go to an Industrial Tribunal, although curiously describing it as an appeal, and pointing out that:
"… time limit may be obtained from the Central Office of Industrial Tribunals … The Council suggests that any aggrieved employee should first use the internal appeals machinery of this Code fully before proceeding on such a complaint."
As we have indicated, we can understand the good intention lying behind that, to encourage an employee to seek to resolve matters internally, but of course it is a wholly misleading piece of advice to give to an employee, particularly in an organisation which cannot mount appeals for several months because it is bound to result in fact in people making claims to the Tribunal out of time if they are reliant wholly upon what is said there.[10]The appeal was heard on 23 September and was dismissed. It was then some considerable time later, on 16 January, when the complaint was presented to the Employment Tribunal. It follows that the Tribunal were entitled, on the facts, to find that the Applicant was out of time. The real task that they had to face was whether it was not reasonably practicable for the Applicant to put that claim in in time.[11]Essentially the argument before us has revolved on three matters of complaint in relation to the Tribunal. First, it is said that the Tribunal did not place sufficient weight on the extent to which an employee can be misled by the procedures of the Respondents. Secondly, that it did not take account of the depressive illness from which the Applicant was suffering which provided a numbing of her awareness of the need to take actions to look after herself, particularly in pursuing a claim. Thirdly, it mis-stated the extent to which one of her representatives, Mr Addico, her main representative, was qualified to know about time limits and things of that kind.[12]We have had an opportunity of reading the notes of evidence prepared by the Chairman and in relation to the Applicant's evidence as to her medical condition. The notes say:
"I am waiting for thyroid treatment and I am not fit to go to work until I get it. I am able to go out. I was suffering with depression."
Today we have given leave, in order to have a full view of this case and do justice, to some medical reports that were available at the time but were not placed before the Tribunal. They ae a report from Dr Gray, General Practitioner, of 15 August 2000, and a report dated 24 August 2000 from Dr Sathananthan, he is a Consultant Psychiatrist, who concludes that the Applicant at the time of his report had a vulnerability to depressive illness and the excessive stress put upon her at work had broken down her coping mechanisms, resulting in depressive illness with agoraphobia. It is not appropriate for an appellate body, on receiving further evidence, to overturn a decision of an Employment Tribunal where that evidence was available at the time of the hearing but was not presented to the Tribunal, except in the most exceptional circumstances.[13]Before dealing with that aspect of the appeal, we refer also to the reference in the notes of evidence of the Chairman to the advice that the Applicant received about which she spoke: She said she telephoned solicitors to discuss the matter, she could not say who they were, in about December. This was after the appeal hearing by which time her claim was basically out of time. As to Mr Addico, the note was that he was a shop steward for the RMT for many years. He had been to Tribunals himself twice and assisted another member. He was aware that there are time limits but thought that it did not apply in this case as the dismissal was not until the end of the appeal. We have also had a look at a statement prepared by Mr Addico as to what his experience actually is, again, in this instance, on the basis that the Tribunal misunderstood the evidence that was actually given and appear wrongly to have recorded it. He was one of three local union representatives of the RMT union and did represent staff internally at hearings held by employers but he says he has not had experience of representation at Tribunals other than himself, having conducted his own case. He said he could not recall telling the Tribunal that he had represented other people at any Tribunal and did not indicate that his experience in union matters stretched to Tribunal level. He was, in his words, shocked to find that it was held against the Applicant that he had this sort of experience.[14]We turn to the way this matter was dealt with by the Employment Tribunal. In paragraph 14 of their decision they accepted that the Applicant may well have considered that the Council's advice meant that she should do nothing until after the appeal, but that that could not have been the view of her experienced trade union colleague or the solicitor she consulted. The Tribunal points out that in addition to the general advice to wait, the Council also draw employees' attention to the fact that Industrial Tribunals have their own time limits and the employee is in fact provided with an address to find out the relevant information. On top of that, they refer to the fact that Mr Addico was an experienced trade union official. In the body of their decision he is described as someone who used to be an official of the RMT, had himself brought a case to the Employment Tribunal and had assisted others and had assisted the Applicant throughout the dismissal procedures and the appeal. They also drew attention to the fact that the Applicant had consulted solicitors on a number of occasions.[15]If there was a misunderstanding and an error on the part of the Tribunal therefore, it only related to that part of their finding, that Mr Addico had assisted others in Employment Tribunals. We find it impossible to conclude that that single piece of evidence constituted a determinative fact in the judgment of the Tribunal as to the amount of the experience available to the Applicant. They said that he must have been aware that there are time limits and that itself was confirmed by Mr Addico in evidence, although he said he thought it could wait until after the appeal. Also, there was reference to the solicitors.[16]Accordingly, having recognised that the Applicant herself may have been misled, the Employment Tribunal drew attention, first of all, to the Council's advice about time limits; secondly, to the availability of Mr Addico, and thirdly, to the availability of the advice. It seems to us that upon the basis of that it is indisputable that the Employment Tribunal were entitled to conclude that that additional material did not enable the Applicant to say it was not reasonably practicable for her to present the complaint. Furthermore, they go on:
"We appreciate that she was not well, but she was certainly able, with assistance from Mr Addico, to prepare both for the dismissal hearing and the appeal and we have had no satisfactory explanation why it took nearly two months from the determination of the appeal to the presentation of the Application."
So whilst it is true that the Applicant may well at that time have been suffering from ill health (even the medical evidence we have seen does not necessarily prove a non reasonable practicability) the Tribunal were saying, in effect, that the Applicant was not on her own and had she been on her own they would probably have accepted her arguments both as to her understanding of waiting until after the appeal and her illness. We are driven to the conclusion that on the facts available to the Tribunal at the time they reached a conclusion which they were entitled to reach. Accordingly, when they came to the conclusion that they were not satisfied it was not reasonably practicable to present the complaint within the time limit, they committed no error of law.[17]The Employment Tribunal then went on to consider, even if it was not reasonably practicable, whether the time taken was in fact reasonable. They concluded:
"… we would unhesitatingly hold that it was not reasonable to wait until 16 January when the appeal had been determined on 23 November."
They say that they had heard no satisfactory explanation for that particular passage of time, so even if they had allowed the three month time limit to be extended, they would still have refused the application because of the time that went after 23 November. Again, on the facts, it seems to us that that was a judgment they were entitled to make and that accordingly they committed no error of law in it.[18]The time limits are provided effectively by Parliament as to when complaints can be brought to Tribunals. Part of the thinking is that this sort of matter has to be dealt with quickly, when memories are fresh and attitudes can be changed, and people can possibly even be re-instated. Sometimes it applies harshly. This is a very unfortunate case indeed. On one view, in general terms, if one looks at the merits of the case, we have a lot of sympathy indeed with the Applicant. After all she did not go to the Tribunal in the first place, quite probably, because of the way she read advice she received from the Respondents. Had the Respondents obeyed their own Code, this claim would probably have been in time even if the Applicant had waited. So when one looks in broad terms for the responsibility for why this Applicant did not bring her claim before the Tribunal, we would hesitate very long and hard before saying in human general terms that it was the responsibility of this Applicant. In those sort of terms the Respondents themselves must bear a heavy share of it. So far as the application of the legal principles are concerned, that does not avail the Applicant. It is always harsh for an Applicant, who feels she or he has a good case, not to find the Tribunal able to hear the case on the merits and on the real issues but to reject it on what may appear to be a technicality. In applying the law, it seems to us, the Tribunal did not in any way depart from principles of law and we can find no legal error in what they did.[19]However, before parting from this case, we would wish to draw attention to two aspects of the way in which the Respondents conduct their procedures. We do so only because we know that a responsible and well established body, such as these Respondents, intend and wish to conduct their procedures appropriately and in accordance with legal principles. That is quite clear by the printed advice they give to employees. It is unfortunate that that advice does exactly (in some instances) the very opposite of what is intended and may in fact lead to an unrepresented Applicant denying him or herself, by being effectively dilatory, the rights which the Respondents are intending to tell the employee that he or she has. Perhaps that is simply a matter of wording that could well be re-considered. Two other aspects however are more surprising. We are surprised that the Respondents would wish to deny an employee the entitlement to notice which the law gives him or her. The removal of a person's job in itself is very often a traumatic and difficult experience for anybody. To do so instantaneously can carry with it its own very considerable human hardship and when it is done, as it seems to us in this case, unlawfully, and contrary to the statutory entitlements to notice that are guaranteed to employees, save where the employee has undermined the contract with gross misconduct, we find that we are a little surprised that that forms part of the Codes of the Respondents.[20]The basis of the law, as we understand it, is that there are cases where the employment relationship cannot continue, where misconduct is so gross that it would be impossible for an employer to contemplate continuing to have an employee in employment - but why on earth can a person not remain in employment pending appeal? Suppose an appeal succeeds, held as it should be within twelve days, what has happened then? An employee has been dismissed, has left, employment has come to an end and yet suddenly it is back again. Do we have to have legal fictions about reinstating and re-establishing continuity of employment which has been terminated? Someone has worked, in this case, for a local authority for eighteen years, and that in those circumstances the local authority should wish to have that unlawful right we find surprising and of course in itself, in a different case, may be an instrumental part of a Tribunal's decision rather than simply a comment by the way.[21]The second matter that we wish to refer to is the inordinate length of time taken to establish an appeals panel. The officers of a local authority are hard pressed, very often with little resources, in seeking to manage the deployment of their own procedures. When it comes to appeals they rely upon the members, but presumably members do not volunteer or allow themselves to be placed on the appeals panel unless they are in a position to commit themselves at very short notice to assembling an appeal panel. Again, it is harsh enough, even if it is the employee's fault, to terminate someone's employment. It is bad in the sense that it has very severe implications for a person's income, their livelihood, their way of life. They sometimes have families, children, mortgages and commitments and yet they have to hang around for two months until members manage to get together to hear an appeal. That is way outside the standards that this local authority sets itself. We can well imagine a case where, all other things being beyond criticism, unfair dismissal itself could follow simply from this sort of delay in conducting an appeal procedure.[22]A final matter which we note is that it was several weeks after the termination of employment, even after the appeal, that this Applicant received the money that she was due. That seems to us a gratuitous hardship inflicted upon an employee, particularly those whose income is comparatively fairly modest, in order to serve the administrative procedures of the Respondents. That again is something which we are surprised to note. Perhaps in drawing attention to it we give the opportunity to as responsible a Respondent as we have in this case to seek to find ways of overcoming it in the future.[23]All those matters however are of no assistance to this particular Appellant whose appeal must, on the facts before us and the finding of the Tribunal, be dismissed. We direct that there be a transcript prepared of the judgment.