ABBEY NATIONAL PLC v MR E G J RIDDICK [2004] UKEAT 0369_04_0311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0369_04_0311Case No Appeal No. UKEAT/0369/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ABBEY NATIONAL PLCAPPELLANTMR E G J RIDDICKRESPONDENT
Before
His Honour Judge Richardson Mr G Lewis Mr S M SpringerDate 3 November 2004
[1]APPEARANCES For the Appellant MR RICHARD POWELL (of Counsel) Instructed by: Messrs DLA Solicitors Victoria Square House Victoria Square Birmingham B2 4DL For the Respondent MR E G J RIDDICK (the Respondent in Person) SUMMARY Time Limits Employment Tribunal did not err in law in holding(i) that it was not reasonably practicable for the Applicant to present his complaint in time and(ii) that he presented his complaint within a further period which it found to be reasonable. HIS HONOUR JUDGE RICHARDSON This is an appeal by Abbey National plc, hereafter "the Company", against part of a Decision of the Employment Tribunal, sitting in Watford, entered in the Register on 24 March 2004.[2]Mr Edward Riddick was employed by the Company from 1 August 1998 until 1 August 2003 when he retired at the age of 39 and was granted an ill-heath pension. On 10 October 2003 he presented an Originating Application containing two kinds of complaint. Firstly, he complained, pursuant to section 111 of the Employment Rights Act 1996 , that he had been constructively and unfairly dismissed. Secondly, he complained, pursuant to section 48 (1A) of the Employment Rights Act 1996 , that he had been subjected to detriment for making protected disclosures, contrary to section 47B of the Employment Rights Act 1996 .[3]On 27 February 2004 the Employment Tribunal heard preliminary issues relating to these complaints. It was the Company's case that both complaints were misconceived, that is to say, they had no reasonable prospects of success. It was also the Company's case that the Employment Tribunal had no jurisdiction to hear the complaints, because they were presented out of time.[4]The Employment Tribunal decided, in favour of the Company, that Mr Riddick's claim of constructive unfair dismissal had no reasonable prospects of success. Against this finding there has been no appeal by Mr Riddick. It decided in favour of Mr Riddick that there was an arguable case that he had been subjected to detriment for making protected disclosures, contrary to section 47B of the 1996 Act . Against this decision there has been no appeal by the Company. Finally the Employment Tribunal decided that it had jurisdiction to entertain Mr Riddick's complaint, under section 48, because section 48 (3) (b) applied. It is against this decision that the Company appeals. The Statutory Background[5]It is sufficient, for the purposes of this appeal, to refer to section 47B (1), section 48 (1A), section 48 (3), and section 48 (4). "47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. … 48 Complaints to employment tribunals … (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. … (3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the "date of the act" means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done."[6]The statutory language in section 48 (3) (b) is well known. It mirrors section 111 (2) (b). It is statutory wording which has attracted considerable case law. The general approach which should be taken to this statutory language is now settled. It is also well settled that appellate courts should be slow to interfere with decisions of employment tribunals on the application of the statutory test, which pre-eminently an issue of fact for the tribunal. See, both for the general approach to the statutory language, and for the pre-eminence of the Employment Tribunal's position, Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 at paragraph 34. Mr Riddick's case under section 48[7]Mr Riddick's case under section 48 emerged, principally, from three documents which were before the Employment Tribunal. There was his Originating Application. Secondly there were particulars given in letter form in December 2003. Thirdly, there was his lengthy witness statement.[8]It was Mr Riddick's case that in August 2001, he made protected disclosures to the Company, and the Employment Tribunal summarized the position as follows:
"The events that gave rise to these proceedings started in about August 2001. The Respondent's activities are regulated by the Financial Services Authority (FSA) and training requirements are imposed by that Authority by regulations in respect of various forms of financial advice and financial advisers. The Respondent employed an external training company in order to provide tuition to members of staff who were going to sit the Investment Management Certificate Examination. It was the Applicant's belief that the external training company were copying down questions during exam in contravention of the rules and passing these to members of the Respondent's staff in order to assist them when sitting the examination."
The Employment Tribunal went on to say:
"For the avoidance of doubt, the Tribunal wishes to make it clear that it is making no findings of fact in respect of these matters within the context to this application but simply setting out facts which, if proven, would result in the conclusion that the Applicant had made a public interest disclosure."
[9]That caveat applies also to this appeal. We, in the Appeal Tribunal, are not directly concerned with the question whether there were protected disclosures, for there has been no appeal against the decision of the Employment Tribunal that there was an arguable case under section 47B and section 48.[10]It was also Mr Riddick's case that he later made protected disclosures to the Financial Services Authority. It was also Mr Riddick's case that he was subjected to detriment by acts, and deliberate failures to act, on the part of the Company. His case is set out at some length in the Originating Application and Further and Better Particulars, to which we have referred. In the Particulars, we note in passing, he was asked a question relating to detriment, but not asked to identify precisely the acts and deliberate failures; nevertheless his case emerges with tolerable clarity.[11]The alleged detriment, and the acts and deliberate failures to act, began in September 2001. An e-mail, which he perceived as highly critical, was sent to him and sent to, or seen by, other members of staff. A course which he was due to run was cancelled. He was transferred away from a part of the Company's business. But, as pleaded by him, the alleged detriment and acts and failures to act did not end in September 2001. His case was that, notwithstanding his protests and his evident distress, the Company did not apologize, did not investigate his complaint, and misled him, contributing to his continuing ill-health. His case is that no apology was forthcoming until 2002, and that one employee refused to allow a statement which vindicated him to appear on the Company's intranet until well into 2002. Mr Riddick's illness[12]The Employment Tribunal's Decision on the time issue depended principally upon its findings about Mr Riddick's psychiatric illness. Those are set out in detail in the Tribunal's Decision. In particular, the Tribunal had before it a letter from Mr Riddick's General Practitioner, which set out the course of his illness. It referred to the letter in detail. The Tribunal described the course of treatment undertaken by Professor Gournay and Dr Beary, who were in agreement as to the nature and seriousness of Mr Riddick's depressive disorder, the genuineness of his symptoms, and his panic attacks.[13]As a result of his illness the Company was advised that Mr Riddick was permanently unable to work with the Company. There came a time when he was offered, and accepted, ill-health retirement. The Tribunal referred to a letter, dated 9 December 2003, from Professor Gournay, following the institution of proceedings:
"I am informed that his medical retirement took place on the 1 August 2003 and I know that Mr Riddick has now applied to proceedings through an Employment Tribunal. I also know that his Application to begin proceedings was made only recently and I can confirm that the reason for this was Mr Riddick's continuing incapacity because of his severe depressive illness. He has only very recently improved to a level where he could initiate or take part in proceedings and I believe that his continuing illness, which prevented him from commencing proceedings within the time limits needs to be considered before striking out his application."
In his letter, Professor Gournay confirmed that he had been treating Mr Riddick since early 2002. The Tribunal's conclusions[14]The Employment Tribunal's conclusions were expressed in paragraph 12 of its Decision:
"The events upon which both the public interest disclosure act claim and the constructive dismissal claim first occurred far back as August and September 2001 although there was a continuing element to them into March 2002 after which time the Applicant was rarely at work. That is, of course, a very substantial lapse of time. The Tribunal had the benefit not only of the medical reports referred to but of seeing the Applicant and observing him both as he gave his evidence and during the general conduct of the Tribunal hearing. It appeared to the Tribunal from all of the evidence that it had not been reasonably practicable for the Applicant to have presented Employment Tribunals [proceedings] before about September 2003 at the earliest and that a period from then until the 10 October 2003 the date of presentation was a reasonable period for him to have commenced proceedings."
The Tribunal went on to say, in paragraph 13:
"Under section 48 of the ERA 1996 such a complaint should be presented within three months beginning with the date of the act or failure to act to which the complaint relates unless the Tribunal is satisfied that it was not reasonably practicable to do so. The Tribunal came to the conclusion, as stated above, that it had not been reasonably practicable to do so but that the Applicant had presented his claim within a reasonable time thereafter."
The Appeal[15]The Company today has been represented by Mr Powell. He has developed his submissions; we have identified them under six principal headings. We have been greatly assisted by Mr Powell in the way that he has presented his submissions, which has been focussed and forceful. We applaud him for focussing the submissions in the way that he has. There were Skeleton Arguments in this case, for which Mr Powell was not responsible. Those Skeleton Arguments lacked the focus which Mr Powell has brought to the presentation of this appeal. Mr Powell has also shown consideration to Mr Riddick in the way he has developed his submissions which is in the highest traditions of good advocacy.[16]We record that some plainly bad points were taken in the Skeleton Arguments. We cannot help noting that, even in the Skeleton Argument for the final hearing, a reference was made to a letter from Dr Beary, dated 30 April, which took advantage of what is, in our judgment, a plain misprint in that document. Mr Powell has not repeated that mistake.[17]Further, the Skeleton Argument seemed to us to put the case in a wholly different way to the way in which it had been put below. The way in which the case was put below appears from the notes and from closing submissions at pages 34-35 in our Bundle. Mr Powell's submissions have not sought to take points which were not taken below.[18]Mr Powell's submissions were as follows. Firstly, he referred to, and relied upon, the fact that the Employment Tribunal has not identified, in its consideration of section 48 (3) of the 1996 Act , a precise period of three months. It has not identified a starting date, it has not identified a concluding date, for that three month period. He submits, that it is impossible properly to apply section 48 (3) (b) unless one has first identified the period of three months, which is applicable by virtue of section 48 (3) (a). The Employment Tribunal, he accepts, has made a reference to that Act, which continue up to the end of March. But that, he says, is insufficient for the purpose of section 48.[19]Mr Powell's second submission concentrated upon a period at the end of June 2004 and the beginning of July 2004. He referred to an e-mail, or perhaps more strictly an attachment to an e-mail, dated 28 June 2002. This e-mail was sent by Mr Riddick at a time when he had returned to part-time work. Mr Powell submitted that the e-mail identifies a careful thought process, is put together with great care and intellectual rigor, and contains the necessary elements which could have formed the grounds to an Originating Application. The Originating Application, when it was eventually submitted more than a year later, was, he points out, done on-line. The text of the letter dated 28 June 2002 could, he says, feasibly have been put into an on-line application at that time.[20]Similarly, he refers to an e-mail dated 9 July 2002 where Mr Riddick was making enquiries from a union about the possibility of legal advice. He points out that in the course of his summary of facts in that e-mail Mr Riddick set out elements which have subsequently, a year later, formed part of his Originating Application. The ingredients, he says, of the allegation are all there. We will not set out the letters in extenso in this judgment, but we have read them. They are detailed letters.[21]He develops this submission by saying that there is information in the papers which indicates that there was some improvement of health at that time. He refers to letters dated 6 June and 26 June. He says that the Employment Tribunal failed to have sufficient regard to the improvement which Mr Riddick made at that time, and should have found that it was reasonably practicable for him to present an application at that time. He accepts that Professor Gournay's letter dated 9 December 2003 would cover the period in June and July, but he makes the point that Professor Gournay was not available to be cross-examined. He makes the point also that there is more specific material in 2002.[22]Mr Powell's third submission relates to the following year. He points out that in paragraph 14 of its Decision, where the Employment Tribunal dealt with the question of alleged unfair dismissal, the Tribunal found that in accepting an offer of ill-health retirement:
"It was clear to the Tribunal that he had sufficient mental capacity to understand what he was doing and indeed he made a rational and informed decision in accepting the offer."
Mr Powell submits that if he had sufficient mental capacity to accept the offer of ill-health retirement, then also he had sufficient capacity to commence Tribunal proceedings.[23]Mr Powell's fourth submission is that the Tribunal has plucked the date of September 2003, which it uses in paragraph 12 of its Decision, effectively out of the air, with no proper basis or explanation. He says that it was close to the date of medical retirement. That may be so, though it is right to point out that the application for medical retirement was very substantially before August 2002.[24]Fifthly, Mr Powell criticizes the Tribunal's approach in paragraph 12 when it says that:
"…it had not been reasonably practicable for the Applicant to have presented Employment Tribunals [proceedings] before about September 2003 at the earliest and that a period from then until the 10 October 2003 the date of presentation was a reasonable period for him to have commenced proceedings."
Mr Powell submits that if it was reasonably practicable for him to present proceedings in September 2003, then the reasonable period, for the purpose section 48 (3) (b), ended at that time and not in October.[25]Mr Powell's sixth and final submission is one which overarches and applies to the earlier submissions. He says that the Employment Tribunal has not given sufficient reasons for its Decision. He says that the Company does not know why it has won and lost. He refers to English v Emery Reimbold & Strick Ltd [2002] 3 All ER 385 at paragraph 16 and paragraph 19. He submits that the test, at its simplest, is that justice will not be done if it is not apparent to the parties why one has won and the other has lost. He submits that, while reasons need not be elaborate and the adequacy of them will depend upon the nature of the case, the judgment must enable the Appellate Court to understand why the Tribunal has reached its Decision. He submits that in respect of the different heads of criticism, which he has identified, this test is not met. He submits, to adopt an oft used phrase, that the reasons are not Meek compliant, (see Meek v City of Birmingham District Council [1987] IRLR 250 ). Our conclusions[26]We have considered each one of these submissions with care, but we do reject them. We begin with his first submission. It is true that in this case the Employment Tribunal has not identified a precise starting point or finishing point for the period under section 48 (3) (a). The closest the Tribunal comes to addressing the issue is to say that there is a continuing element to the events up to March 2002. However, the precision with which it is necessary to identify a period will vary, in our judgment, with the subject matter of the particular case and the issues and arguments that are presented to the Employment Tribunal. It is clear that the Company was not submitting to the Employment Tribunal that the three month period ended before Mr Riddick's illness began. That is clear, not only from Mr Riddick's written submission, where he puts it forward, but also, in our judgment, from page 34, which was the submissions of Mr Tew to the Employment Tribunal. He said:
"For the purpose of this preliminary hearing, the tribunal is not concerned with whether the Applicant did in fact suffer a detriment, that is for the full merits hearing. The issue before the tribunal is whether the Applicant delayed too long following the alleged detriments."
That being the issue, it was not, in our judgment, necessary for the Employment Tribunal to identify, with precision, a start and finishing date. It might have been, if the Company had been arguing, that the three month period elapsed before Mr Riddick's illness began. But we are satisfied that this was not the argument below. Indeed Mr Powell in his submissions today has, we think, correctly been following the way in which the case was put for the Company before the Employment Tribunal, and not sought to argue the case differently.[27]We turn then to his second submission. Mr Powell's case was put skilfully on the part of the Company, but it is important to note other features of the documents to which he refers. The e-mail dated 28 June begins with a reference to the inability of Mr Riddick to reply sooner because he was following doctor's advice. The e-mail, dated 9 July 2002 records that already:
"Since returning to work a couple of weeks ago I have again broken down several times and suffered from hyperventilation."
The context of these letters is a brief interval of ability to return to work, only part-time, and only for a very few days. The Employment Tribunal received evidence that in fact that he was only back at work for six days, consisting of two periods of three half-days each. Otherwise, as we understand it, he was taking leave. When the letters are put into that context, they do not throw doubt on Professor Gournay's opinion that Mr Riddick had only recently improved to a level where he could initiate or take part in proceedings. Even when one looks at the letters of 6 June and 26 June, it is not difficult to see that there has been a deterioration between those two dates.[28]The third submission related to Mr Riddick's ability to accept ill-health retirement. In our judgment, there is a world of difference between an ability to accept ill-health retirement, which would distance him from the events at the Company which were causing him such psychiatric problems, on the one hand, and presentation of proceedings at an Employment Tribunal, which would launch him into the consideration of those difficulties, on the other hand.[29]We turn to the fourth submission. The Tribunal had the evidence of Professor Gournay that Mr Riddick had only recently improved to a level where he could initiate or take part in proceedings. The Employment Tribunal heard the evidence, saw the witnesses, and was, in our judgment, well within its rights to select the September date. No error of law was committed by doing so.[30]We turn to the fifth submission. We see no error of law in the way the Employment Tribunal has expressed itself in paragraph 12 of the Decision. Exactly the correct language, we note, is, any event, used in paragraph 14, which we have quoted. All the Tribunal is saying in paragraph 12 is that it was not reasonably practicable for Mr Riddick to have presented the complaint before September 2003. True, it could have put an earlier date at that point, but it commits no error of law in making the observation that it does. The critical question for the Employment Tribunal was whether the period up to 10 October 2003 was a reasonable period for the purpose of section 48 (3) (b). That question is appropriately addressed and answered by the Employment Tribunal.[31]We turn finally to the question to sufficiency of reasons. The sufficiency of reasons does vary with the subject matter. An employment tribunal cannot be expected to deal with each individual point that was put. We are entirely satisfied that the Decision tells the Company, and for that matter Mr Riddick, why the case was lost and won. The case turned principally on medical evidence and history which was fully set out by the Tribunal. We have no doubt that the reasons are Meek compliant. Concluding observations[32]Before we leave the case, we wish to raise one other point, and we will order a transcript, not only so that the reasons for this Decision may be recorded, but also so that the Company and its legal advisors, and Mr Riddick, may consider the future of this litigation. There is no doubt that Mr Riddick is caused considerable distress and difficulty by this litigation. The Tribunal found it, and set out the difficulties that existed then. Professor Gournay set them out in his letter. We have experienced them again at this hearing, or to be more precise, Mr Riddick has experienced them, and we have looked on with concern and alarm.[33]If ever there was a case for some form of alternative dispute resolution to be considered by the parties, this is it. It is in everyone's interests to do so. It is in the Company's interests. We observe that the Company has, in this case, made apologies. We observe that in 2001, Mr Riddick's concerns were vindicated, we say not to what extent because we have not seen the full papers. But it is plain that the Company had something to apologize for. It is plain that any tribunal proceedings are likely to be difficult and protracted for all concerned. Mr Riddick, for his part, has much to gain from a process of conciliation or alternative dispute resolution. Various such processes exist. There is ACAS. ACAS of course is free to the parties. Plainly conciliation and mediation in this case may be more difficult than in some others. If ACAS is not the right resource, there are other available resources. Those resources cost money. They are well known, they are independent of the parties concerned, and mediators and conciliators are capable of acting independently even if, as we envisage might have to be the case, the Company paid for them. We encourage both parties to consider the question of conciliation here with the greatest of care.[34]We have already paid tribute to the assistance we have received from Mr Powell. We have, as we have said, not been impressed by the Skeleton Arguments in this case which, as we have said, were not produced by Mr Powell. If further proceedings should be required we think that a high calibre of representation will be in the interests of the Company, of Mr Riddick and of any tribunal which has to deal with the case. But, as we say, we hope that conciliation will be considered by the parties. [DISCUSSIONS][35]If Mr Riddick wishes to make an application for costs, it should be done in writing within 14 days. That application will then be considered by us administratively. If we are minded to make an order for costs, we will give an opportunity to the Company to reply, and we will devise a procedure thereafter which probably will not involve an oral hearing. The parties are not hereby encouraged to seek an order for costs, nor seek an oral hearing concerning costs.