NATIONAL AUSTRALIA GROUP (EUROPE) LTD v MS ELLEN WATSON [2005] UKEAT 0069_04_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0069_04_1705Case No Appeal No. UKEAT/0069/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
NATIONAL AUSTRALIA GROUP (EUROPE) LTDAPPELLANTMS ELLEN WATSONRESPONDENT
Before
Lady Smith Miss J A Gaskell Mrs A HibberdDate 17 May 2005
[1]APPEARANCES For the Appellant Mr D Walker, Solicitor Of- Messrs Dundas & Wilson Solicitors 191 West George Street GLASGOW G2 2LD For the Respondent Mr D Small, Advocate Instructed by- Orkney Citizens Advice Bureau Anchor Buildings Bridge Street KIRKWALL Orkney KW15 1HR SUMMARY UNFAIR DISMISSAL Exclusions including worker PRACTICE AND PROCEDURE Application/Claim The claimant's application to the Employment Tribunal in respect of an allegation of unfair dismissal was lodged late. The Employment Tribunal held that it would not have been reasonably practicable for her to lodge it within the requisite three month period and that, furthermore, it was lodged within a reasonable time after the expiry of that period. That decision was reversed on appeal. THE HONOURABLE LADY SMITH: Introduction: This case concerns a claim for unfair dismissal and a determination by the Employment Tribunal that they had jurisdiction in respect that, although the claimant's application was lodged late, it would not have been reasonably practicable for her to have lodged it timeously and that it was lodged within a reasonable time after the expiry of the relevant time limit.[2]This judgment represents the views of all three members who pre-read the relevant papers.[3]We will refer to the parties as claimant and respondents.[4]This is an appeal by the respondents against a decision of the Employment Tribunal sitting at Glasgow, Chairman Ms L J Crone, registered on 18 June 2004. The claimant was represented there and before us by Mr D Small, trainee advocate and the respondents were represented there and before us by Mr D Walker, solicitor.[5]The claimant presented an originating application to the Employment Tribunal on 9 June 2003 claiming that her dismissal on 6 February 2003 had been unfair and claiming breach of contract in respect of entitlement to notice. The respondents lodged a notice admitting dismissal but denying that it had been unfair. They also raised the issue of whether or not the application had been timeously presented. The Employment Tribunal heard evidence confined to the latter issue. The Facts:[6]The claimant was employed as a customer service adviser with the Clydesdale Bank, part of the respondents' group, from May 1979 until her dismissal on 6 February 2003. She had a history of depression which caused her to be absent from work for a period in 2002, returning to work full time by July 2002. In October 2002, she was suspended pending an investigation into an allegation of misconduct. Some time shortly thereafter, and prior to her dismissal, she consulted Graeme Sutherland, solicitor, who advised her that no action could be taken until the respondents had taken further action. She did not find him to be helpful. She also consulted Drever and Heddle, solicitors and was advised of the time limit that applied to her making a claim. She was also advised by them that she required to exhaust the respondents' internal appeal procedures before taking any action. She did not seek advice from them after she was dismissed, on account of a conflict of interest. Two other firms of solicitors in Kirkwall were not considered by her to be suitable for reasons of conflict of interest in the case of one and her understanding that they did not do employment work in the case of the other. The claimant was aware of the three month time limit for lodging a claim with the Employment Tribunal. Her brother had informed her of it. She had had the date 5 May 2003 in mind.[7]She did not seek any further legal advice in the period between her dismissal and the hearing of her appeal against dismissal. Given the position regarding the various solicitors in Kirkwall, she considered that she would need to obtain advice from a solicitor on the mainland. She does not appear to have had a prior relationship with any such solicitor. Pending the outcome of her appeal, she proceeded in the belief that the decision to dismiss her would be reversed. She took no steps, accordingly, to seek to instruct a solicitor on the mainland to lodge her claim with the Employment Tribunal.[8]A letter from the Community Psychiatric Nurse dated 25 September 2003 narrates that on 17 April 2003, the claimant and she agreed that it was no longer necessary for them to meet as she was undertaking a computer course and seemed happy in her new home.[9]The claimant appealed to the respondents against their decision to dismiss her but she was informed on 29 April 2003 that that appeal had not been successful, news which had a devastating effect on her. She did not leave the house for a week and spoke to no-one.[10]On 7 May, the claimant returned a telephone call from her brother and he arranged for her to see a solicitor. On 12 May 2003, the claimant's brother having arranged an appointment for her, she consulted, Ms Munn, solicitor, in Falkirk. Ms Munn applied to the Scottish Legal Aid Board ('SLAB') for an increase in authorised expenditure which was granted by telephone on 15 May. By letter dated 27 May, SLAB refused that increase and Ms Munn wrote querying the refusal. She appears to have taken no action at all between 15 and 27 May. She instructed Counsel's opinion regarding the fact that the time limit for lodging an application with the Employment Tribunal had been missed, on 4 June 2003, which opinion was received on 6 June. She lodged an application to the Tribunal on 9 June 2003. In the last paragraph of the statement of claim attached to it, it is narrated that following the receipt of SLAB's letter of 27 May, the claimant's agent wrote a letter dated 30 May asking them to alter their written decision refusing the application but as at 9 June, they had not responded to that letter. It is, accordingly, evident that at the time that the application to the Tribunal was lodged, the claimant's agent had not received the written authorisation from SLAB that she had sought.[11]The abovementioned letter from the Community Psychiatric Nurse recorded that as at 30 May 2003, there seemed to have been a deterioration in the claimant's mental health. Relevant Law:[12]Section 111 of the Employment Rights Act 1996 ('the 1996 Act') provides:
"(1) A complaint may be presented to an Employment Tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) … an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the end of the period 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."
Similarly, the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 provides that a claim for breach of a contract of employment must be presented:
"(7) … (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable."
Employment Tribunal:[13]The Employment Tribunal determined that, in the circumstances, the claimant's application had been presented as soon as was reasonably practicable. They found that it was reasonable for her to have deferred doing so until the outcome of her appeal was known, they accepted her evidence that she was unable in the week that ensued after that outcome was intimated to her, to prepare her own application or lodge one herself, and that her solicitor lodged her application within a reasonable period thereafter. The Respondents' Case:[14]The respondents submitted that the Employment Tribunal erred in law in both their finding that it had not been reasonably practicable for the claimant to lodge her application within the requisite three month period and their finding that the application was in fact lodged within a reasonable time thereafter.[15]Mr Walker, for the respondents, in support of his submission that the Employment Tribunal had erred in failing to find that it would have been reasonably practicable to lodge the application within the three month period, founded on the fact that the Employment Tribunal had failed to make any finding in fact to the effect that the claimant could have instructed a solicitor on the mainland in time for the application to be lodged within the three month period, had she not been ill as from 29 April. They had failed to take account of it being the claimant's position that she would have to proceed by seeking legal advice on the mainland and that doing so would, inevitably, have taken time. Further, they misapprehended the relevant law and in so doing, condensed their analysis of the claimant's approach into the last week of the three months that was available, which was wrong. They required to consider the whole circumstances which included that the solicitor who had advised the claimant that she required to wait until she had exhausted the respondents appeal procedures had acted negligently. Reference was made to the case of Marks &Spencer plc v Williams-Ryan [2005] EWCA Civ 470 in support of the submission that as a matter of law, fault on the part of an adviser falls to be treated as fault on the part of a claimant. Reference was also made to the case of Schultz v Esso Petroleum [1999] IRLR 488 in support of the submission that whilst claimants were not obliged to lodge applications early, it was necessary for them to do so at a point when there was still time to spare, bearing in mind the particular circumstances of the case.[16]Regarding the question of whether the application had been lodged within a reasonable time after the expiry of the three month time limit, Mr Walker submitted that the start point was 7 May, when the claimant telephoned her brother. Thereafter, it was a matter of applying commonsense and asking whether the claimant or her adviser could reasonably have lodged the application earlier than it was ultimately lodged. It was clear that they could have done, he submitted. Ms Munn had accepted that she could have lodged a skeleton application and that in urgent cases she did at times proceed without waiting for legal aid confirmation. In any event, the matter of legal aid was a red herring since she had in fact proceeded prior to obtaining the written confirmation that she had sought. The Employment Tribunal appeared, he submitted, not to have taken account of that fact. In all the circumstances, the Employment Tribunal erred. They should have inferred that the appropriate action to lodge the claimant's application was not taken and that, accordingly, it was not lodged within a reasonable time. The Claimant's Case:[17]On behalf of the claimant it was contended that no aspect of the Employment Tribunal's decision was perverse and that they had reached a decision that was open to them.[18]Regarding the advice given by the solicitor in Drever and Heddle, Mr Small accepted that it was negligent but pointed out that the Employment Tribunal identified the cause of the delay within the three month period as having been the claimant's choice, not any reliance on that advice. The claimant had utlilised the respondents' appeal mechanism and it was relevant to take account of that. He accepted that, in paragraph 40, where the Employment Tribunal explain their approach to the question of whether it would have been reasonably practicable for the claimant to have lodged her application within the three month period, they did not express themselves well. It should be inferred that they took the view that the claimant could have lodged the application within the one week that remained once she was told the outcome of her appeal, had she not fallen ill. It might be felt that another Employment Tribunal would have decided the matter differently. That was not, however, the test.[19]Regarding the time taken to lodge the application after the expiry of the three month period, Mr Small submitted that had Ms Munn taken a course of action that was clearly ill advised then the period could not have been characterised as reasonable. She had not, however, done so, and the Employment Tribunal's assessment was one which was open to them.[20]In addition to the authorities relied on by the respondents, reference was made to the cases of Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 in support of a submission that it was relevant to take account of the utilisation of an appeals system and that the question was one of fact for the Employment Tribunal to resolve , to London International College Ltd v SEN [1993] IRLR 333 in support of a submission that where a claimant's adviser had been negligent, it was relevant to ask whether the negligent advice had caused the delay, and to Biggs v Somerset County Council [1996] IRLR 203 in support of a submission that it was relevant to consider whether or not the respondents had been prejudiced by the delay that ensued after the expiry of the time limit. Relevant Legal Principles:[21]The relevant principles are evident from the legislation. If a claim is not presented within three months of dismissal or termination of the contract of employment then it is time barred unless the claimant can show that it was not reasonably practicable for it to be presented within the three month period and that it was in fact presented within a reasonable time thereafter.[22]It is also evident from the discussions of the application of these rules in the various authorities to which reference was made that the questions of 'reasonable practicability' and 'reasonable time thereafter' are principally questions of fact for determination by the Employment Tribunal. However, it is also relevant to note, for the purposes of the present case that, whilst account may be taken of the utilisation of an employers' appeals machinery, as was said in the case of Bodha v Hampshire Area Health Authority [1982] ICR 200 and approved of in Palmer and Saunders v Southend–on–Sea Borough Council: " … the mere fact of a pending internal appeal, by itself, is not sufficient to justify a finding of fact that it was not "reasonably practicable" to present a complaint to the industrial tribunal." ( Palmer at p. 124)[23]Further, whilst it is correct to state that the determination of reasonable practicability involves considering more than the question of whether something could have been done ( Palmer and Saunders v Southend-on-Sea Borough Council; Schultz v Esso Petroleum) , it is important to consider the whole surrounding circumstances and the conduct pursued throughout the whole of three month period. The following passage at paragraphs 29–30 in Schultz is of particular relevance to the present case:
"…whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aim to be achieved. In a case of this kind, the surrounding circumstances will always include whether or not, as here, the claimant was hoping to avoid litigation by pursuing alternative remedies. In that context, the end to be achieved is not so much the immediate issue of proceedings as issue of proceedings with some time to spare before the end of the limitation period. That being so, in assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way focus upon the closing rather than the early stages. This seems to me to be so whether the test to be applied is that of simple reasonableness or, as here, reasonable practicability. Thus, while I accept Mr Wynter's general proposition that, in all cases where illness is relied on, the tribunal must bear in mind and assess its effects in relation to the overall limitation period of three months, I do not accept the thrust of his third submission, that a period of disabling illness should be given similar weight in whatever part of the period of limitation it falls. Plainly, the approach should vary according to whether it falls in the earlier weeks or the far more critical later weeks leading up to the expiry of the period of limitation. Put in terms of the test to be applied, it may make all the difference between practicability and reasonable practicability in relation to the period as a whole. In my view, that was the position in this unusual case. The way in which the IT expressed its decision indicates to me that it had its focus wrong and, in the light of the primary findings of fact."
[30]It is also clear, as was not disputed, that fault on the part of an adviser falls, as a matter of law to be treated as fault of the claimant albeit that it will be relevant to take account of whether or not that fault in fact had any impact on the delay. Conclusions:[31]We consider that the Employment Tribunal erred both in its determination that it was not reasonably practicable for the claimant's application to be lodged within the three month time limit and that the application was lodged within a reasonable time thereafter. Reasonable practicability:[32]The circumstances of this case were that the claimant knew of the importance of the date 5 May, that she had decided that none of the solicitors available on Orkney were suitable and that she would need to go to the mainland for advice on any application to the Employment Tribunal, that she chose to delay in doing so because she believed that her appeal would be successful and that the persistence by her in that approach meant that only one week was left of the three month period by the time that she received intimation of the outcome of her appeal. We agree with the submission on behalf of the claimant that nothing seems to turn on the evidently negligent advice given by the solicitor at Drever & Heddle since it was not that which caused her to delay.[33]However, there was no evidence that it would have been possible, at the stage when the outcome of the claimant's appeal was known, to identify a suitable solicitor on the mainland and give instructions so that a claim could have been lodged in time. We do not agree that it can be inferred that the Employment Tribunal determined that it would since not only do they not state any such finding but they do not make any findings on that matter beyond acknowledging the claimant's decision that she would need to go to mainland for advice. The picture presented by the facts found by the Employment Tribunal to have been established is that the claimant simply took a risk, gambling on her belief that her appeal would succeed.[34]The Employment Tribunal's reasoning is to be found at paragraph 40, where they state:
"We were of the opinion that the Schultz case was of particular relevance in considering the applicant's case. There was no doubt the application could have been lodged in the period between the dismissal on the 6 th February and the appeal on the 28 th April. But, following the Schultz case, this is not the correct question to ask, particularly in circumstances where an employee is hoping to avoid litigation by pursuing alternative remedies – such as an appeal. The applicant clearly hoped/believed the appeal would overturn the dismissal: when it did not do so, the applicant had a period of one week in which to lodge her application. This was a period when the applicant was in isolation and incapable of leaving the house or communicating with anyone. In those circumstances we decided it had not been reasonably practicable for the applicant to have lodged her claim within the relevant time limit."
[35]We consider that the Employment Tribunal misunderstood the decision in Schultz . Having recognised, correctly, that it is not simply a matter of asking whether the application could have been lodged in time, their focus then shifted solely to consideration of the last week on an apparent misunderstanding that they required to ignore the period whilst the appeal was pending. They failed to look at the whole period and the whole circumstances, including the choices exercised by the claimant, to which we have already referred, and the important matter of the need to find and instruct a solicitor on the mainland. They should have taken account of the need, as referred to in Schultz , to lodge the application with some time to spare before the end of the limitation period which, in this case, was certainly more than one week. That was something which could readily, reasonably and practicably have been done in this case, had the claimant not opted to wait for the outcome of her appeal. Her opting to do so did not render it unreasonable or impracticable to lodge the application prior to 29 April, when she became unwell. Reasonable time thereafter:[36]We turn now to the question of what was done after 5 May. The claimant did take steps to see a solicitor promptly and no criticism is to be levelled at her for her conduct during this period. We consider, however, that Ms Munn failed to progress matters within a reasonable time scale and that any reasonable Employment Tribunal would have reached that conclusion once all the facts and circumstances of the case were taken into account. Her failures are, of course, relevant to the consideration of whether the application was lodged within a reasonable time since she was acting as the claimant's adviser at that time.[37]The Employment Tribunal set out their approach to this part of the case at paragraph 45, where they state:
"We asked ourselves whether, having regard to all the relevant facts of the case, a period of four weeks was a reasonable period. We decided, notwithstanding the fact the application could have been presented earlier had Ms Munn decided to present a skeleton application, or not wait for written confirmation regarding legal aid, that the application was lodged within such further period as was reasonable. Ms Munn acted quickly in seeking the increase to legal aid, and in seeking the Opinion from Counsel and thereafter drafting and presenting the application. Any delay in the process was in waiting for the written confirmation from the Legal Aid Board, which we did not consider to have been unreasonable in the circumstances."
[38]The Employment Tribunal were, however, wrong to approach matters on the basis that Ms Munn delayed until she had written confirmation from SLAB because, as we have noted, she in fact proceeded to lodge the application at a point when she did not yet have that confirmation. Her having done so undermines entirely, in our view, any argument that her approach was to the effect that she could not lodge the application until she had received such written confirmation. Further, once that is acknowledged, it is evident that there was a period of some 12 days between 15 and 27 May when Ms Munn did nothing at all to further the claimant's application in circumstances where there was nothing to prevent her lodging it or at least a skeleton version, as a holding operation. It also seems to us that significant weight should have been attached to the fact that, as is well known, the claimant's application did not need to be presented by a solicitor ; it could have been completed and lodged by the claimant or by her brother, who was evidently assisting her.[39]Further, we consider that the Employment Tribunal should have attached greater weight than they seemed to do to the fact that Ms Munn could have, by following a practice that she was apt to utilise, lodged a skeleton application when she was first instructed.[40]We were not persuaded that the absence of prejudice to the respondents indicated that the time taken was a reasonable one. Whilst there may be cases where the fact of prejudice to a respondent is such as to indicate that that the application was not lodged within a reasonable time (as envisaged in the obiter comments at paragraph 27 in the case of Biggs v Somerset County Council ), it does not follow that the absence of such prejudice renders the time taken reasonable.[41]We shall, accordingly, allow the appeal.