MAXVIEW LTD v MISS E GALBRAITH [2005] UKEAT 0211_05_1006

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0211_05_1006

Case No Appeal No. UKEAT/0211/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MAXVIEW LTDAPPELLANT

MISS E GALBRAITHRESPONDENT

Before

His Honour Judge Peter Clark Mr P Gammon

Date 10 June 2005

[1]APPEARANCES For the Appellant MS C GITTENS (of Counsel) Instructed by: The A P Partnership Ltd Borough House Newark Road Peterborough PE1 5YJ For the Respondent MR S S SOOR (of Counsel) Instructed by: Messrs Bowser Ollard & Bentley Solicitors 15 South Brink Wisbech PE13 1JL SUMMARY Time Limits ERA and DDA claims. Limitation. J & E extension test applied to both. Case remitted on question of reasonable practicability in ERA claims. HIS HONOUR JUDGE PETER CLARK We have before us both an appeal by the Respondent Maxview Ltd and a cross-appeal by the Claimant Miss Galbraith in this matter, which is currently proceeding in the Norwich Employment Tribunal. The parties have reached terms which in part involve allowing the Respondent's appeal and therefore we must consider the matter ourselves in accordance with the EAT practice.

[2]BACKGROUND The Claimant was employed by the Respondent as a Business Returns Operative until her dismissal effective on 23 February 2004. Following termination she presented an Originating Application to the Employment Tribunal. The date-stamp appearing on the Tribunal copy shows that the application was treated as received on 24 May 2004, one day outside the primary limitation period for her claims which were expressed in the application to be as follows:

"Unfair dismissal ERA1996 Section 94; unfairly dismissed because of disability; suffered other detriments because of disability including victimisation; employer failed to make reasonable adjustment to accommodate a disability; unfair selection for redundancy"

. Pausing there, for limitation purposes, those claims fall into two categories. Claims under the ERA and claims under the DDA. Whereas the primary limitation period is the same for both categories of claim the escape clause differs; under the ERA the test for claims presented outside the primary limitation period is the reasonable practicability test; under the DDA the question is whether it is just and equitable to extend time.

[3]Whilst the limitation point does not appear to have been taken in the Respondents notice of appearance, this is a matter going to the Tribunal's jurisdiction and the case was listed for hearing of a preliminary issue before a full Tribunal chaired by Mr D R Crome on 22 July 2004. On that occasion the Claimant appeared in person, although she had earlier been advised by solicitors, Bowser Ollard and Bentley of Wisbech who now instruct Mr Soor in these Appeals. A member of that firm, Miss Harris, who has since left the practice, dealt with the Claimant's case, drafted her Originating Application and had responsibility for lodging it with the Employment Tribunal in time.

[4]As appears from the Tribunal's Extended Reasons promulgated on 6 August with their first decision following the 22 July hearing , the Tribunal considered that the issue before them was whether, given that on its face the application was out of time, it was reasonably practicable for the claimant to have lodged the application in time apply Section 111 (2) ERA. We observe that strictly the question is whether the Claimant has shown that it was not reasonably practicable to lodge the application in time and if so whether it was lodged in sufficient time thereafter.

[5]It therefore seems that the Tribunal on that occasion overlooked the fact that the Claimant brought complaints under both ERA and DDA. That required a separate finding as to whether it was just and equitable to extend time in respect of the DDA claims.

[6]A more fundamental question first arose: Was the complaint presented within the 3 month limitation period? The Tribunal heard that attempts had been made by Miss Harris to lodge the Originating Application, first on 17 May and then on 20 May before the final version was accepted by the Tribunal on 24 May. The first 2 of those 3 dates, of course, fell within the primary limitation period.

[7]For present purposes it is unnecessary for us to go into that matter because Mr Soor's cross-appeal on behalf of the Claimant, which goes to the question as to whether the complaint was presented within the primary limitation period, is now withdrawn.

[8]However it does appear from their reasons accompanying the first decision that the Tribunal did not reach a determination on that question; instead they gave the Claimant 21 days to show cause why the application should not be struck out as being out of time. She did not show cause within that the time, indeed she did not respond to that opportunity, probably we think because the order was sent to her legal representative Miss Harris who failed to deal with it.

[9]At all events on 7 September 2004 Mr Crome struck out the application. That was in circumstances where the first decision contained no findings as to(a) when the application was first lodged and if it was out of time,

(b) whether the Claimant had discharged the burden of showing that it was not reasonably practicable to present the ERA claims in time, or

[10]The Claimant was unhappy with that outcome. She wrote to the Tribunal on 6 November stating that her solicitor, Miss Harris, had let her down and asking that the strike out order be revoked. That letter was treated as a review application and a review hearing took place before Mr Crome, sitting alone, on 25 January 2005. In his judgement with reasons promulgated on 11 February (the review judgement) the chairman appears to have proceeded on the basis that the application was presented out of time; apologised for treating the matter as a complaint under the ERA, which it was in part and then proceeded to consider the just and equitable extension issue raised under the DDA only. He decided that the failure here was by the Claimant's solicitor not by her personally and proceeded to rescind both the first decision and the strike-out order and to permit the application to proceed on the grounds that it was just and equitable to extend time. That order appears to have applied equally to the ERA and DDA claims.

[11]Now there are appeals by both parties. The Respondent contended(a) that the review judgement did not deal with the limitation question in respect of the ERA claims, Mr Soor accepts that proposition and it is on that point that we are invited to allow the appeal, and

(b) that it was wrong to extend time on the just and equitable ground in respect of the DDA claims; that ground of appeal is no longer pursued by Ms Gittens and must necessarily therefore be dismissed.

[12]The Claimant complains in her cross-appeal that in the review judgement the Chairman failed to give proper reasons for his finding that the application was presented outside the primary limitation period. That cross-appeal is now no longer pursued.

[13]We have set out the history in some detail because the facts speak for themselves. The case has been listed for trial on 4 and 5 July; that trial relates to the substantive issues under both the ERA and DDA claims. We think the proper course is to allow the Respondents appeal to the extent only that the next Tribunal and we think it should be a fresh Tribunal sitting on the 4 July should consider the reasonable practicability question in relation to the ERA claims as the first order of business. If those claims are permitted to proceed then the hearing will deal both with the substantive ERA and DDA claims. If the ERA claims are held to be time-barred then the hearing will proceed to deal only with the DDA claims on their merits. In those circumstances we approve the form of order which has been put before us in draft by Counsel. An alteration may be made to paragraph 4 to allow for the Tribunal to hear the ERA claims substantively if they are allowed to proceed on the limitation point.