MISS A MCCARTHY v H M PRISON SERVICE [2005] UKEAT 0474_04_0702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0474_04_0702

Case No Appeal No UKEAT/0474/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS A MCCARTHYAPPELLANT

H M PRISON SERVICERESPONDENT

Before

His Honour Judge J R Reid

Date 7 February 2005

[1]APPEARANCES For the Appellant MR A OTCHIE (Of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ For the Respondent MISS K GRANGE (of Counsel) Instructed by: The Trreasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS SUMMARY Time Limits The Appellant applied out of time alleging unfair dismissal and sex discrimination. At the Employment Tribunal the Appellant's Solicitor withdrew the unfair dismissal claim accepting he could not show it was not reasonably practicable to issue in time. The Employment Tribunal held not just and equitable to extend time where both lay client and Solicitor were well aware of issue date. Employment Tribunal suggested possible claim against Solicitor. Held(1) no appeal against unfair dismissal claim, dismissed and withdrawn and in any event would have been fruitless

(2) Employment Tribunal made no error of law, did not omit factors or take into account extraneous factors, and no basis for asserting perversity so appeal dismissed. HIS HONOUR JUDGE REID QC This is an appeal from a decision of an Employment Tribunal held at Lincoln on 22 March 2004.The decision is dated 26 March and was sent to the parties on 7 April. By that decision the Tribunal dismissed the Applicant's claims for unfair dismissal and sex discrimination on the basis of lack of jurisdiction, the application having been presented out of time.

[2]Before us that decision has been challenged, and is convenient to take the two limbs of the challenge separately. So far as the claim in relation to unfair dismissal is concerned, as is well known the Tribunal will only have jurisdiction, if the proceedings are issued either before the period of three months beginning with the effective date of termination, or within such further period as the Tribunal considers reasonable, in a case where it is satisfied it is not reasonably practicable for the complaint to be presented before the end of that period of three months. The phrase 'reasonably practicable' is sometimes paraphrased as 'reasonably feasible.' There is authority for saying that the fact that a legal adviser has fallen down in the performance of his duties is not a good reason for saying that it was not reasonably practicable to institute proceedings within time. The position, so far as the Tribunal found it in this case, is that the Applicant herself was well aware of the time limit, as too was the Solicitor to whom she had entrusted the case. The Tribunal took the view that it was primarily the Solicitor's fault that the application was put in some four weeks out of time.

[3]Before the Tribunal, the solicitor (who was the same solicitor who was guilty of the default) took the view, no doubt prompted by the Tribunal, that the claim for unfair dismissal could not be proceeded with. Paragraph 10 of the Tribunal's Decision read:

"At the start of the hearing it became clear that the focus on the late presentation would be on the involvement of the applicant's solicitors rather than the trade union. Mr Powell accordingly withdrew the application for an extension of time in relation to the unfair dismissal claim on the basis of the legal authorities on the "reasonable and practical" issue …"

Mr Powell, as is apparent, was the Solicitor involved. The Tribunal then went on and said at paragraph 19 "As to the unfair dismissal claim it cannot be argued that it was not reasonably practicable to present the originating application within the three months, because it was the fault of the legal advisers. Therefore that out of time application fails and is dismissed." It was, as has been apparent from my reading from paragraph 10, dismissed on withdrawal.

[4]It was said before us that no evidence was adduced and that the withdrawal had been done without authority. Even if it were, no complaint was made at the time, and it seems to us clear that the solicitor who was then still acting, had ostensible authority to act as he did. The reason that this matter came for a full hearing, was that before the preliminary hearing was due to take place, a decision of the Employment Appeal Tribunal had occurred in Chohan v Derby Law Centre

[2004] IRLR 685

, and the Employment Appeal Tribunal when hearing the preliminary hearing took the view that it was desirable for this Tribunal to consider on a full hearing whether the old authorities relating to the effects of negligent action relating to a solicitor or adviser, had any bearing on the test of reasonable practicality.

[5]In our judgment, that decision does not affect those older cases. It was a case relating to sex discrimination, and therefore the test that to be applied in that case was the less rigid test of whether it was just and equitable to allow the proceedings to be brought outside the three month limitation period, rather than the less flexible reasonable practicability test. However it seems what may have been concerning the Tribunal at the earlier stage, was that there is some fairly wide language used by Judge McMullen QC, at paragraph 11 through to 21 of that decision, which had been interpreted as suggesting that the Courts ought now to reconsider the reasonably practicable test, particularly in the light of what was said in the Court of Appeal in Steeds v Peveral Management Services Ltd

[2001] EWCA Civ 419

[6]We should say first of all, that we do not think that in the course of that extempore judgment, Judge McMullen QC was intending anything so drastic as an overhaul of the entire area of the law. It appears to us that what are intended to be very brief statements of what was decided in various cases referred to (in each case a one line summary) has been elevated into the status of a restatement of the law. In our judgment, it is clear that he was not intending, and should not be taken to have intended, to say anything in relation to unfair dismissal time limits in that judgment. It follows that the old law remains undisturbed, and that even if contrary to our view, it were open to the Applicant/Appellant here to seek to appeal against the dismissal on withdrawal of the unfair dismissal claim, it would be inappropriate to allow that claim to proceed, because it was out of time and it was plainly reasonably practicable or reasonably feasible, whichever phrase one wishes to use, for her to have brought the proceedings within the time.

[7]Turning then to the second limb of her appeal. The provisions of section 76 of the Sex Discrimination Act 1975 provide that by subsection 5. "A Court or Tribunal may nevertheless consider such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so." Again the time limit is three months beginning from when the act complained of was done. For the purpose of this judgment, we are prepared to accept, probably overfavourably to the Applicant/Appellant, that the dismissal of the Applicant/Appellant from the Prison Service was the culmination of a series of acts, and it is this last act of which she complains. The question then is, should this Tribunal allow an appeal against the decision of the Tribunal that it was not just and equitable to extend time in this particular case? The Tribunal made its decision at paragraph 19 and 20 of a comparatively brief decision. (It is none the worse from been comparatively brief.) At paragraph 20 they said this:

"As to the sex discrimination claim the extent of the legal involvement in this case was such that it cannot be said that it was a simple one off failure of legal advice. We conclude that it would not be just and equitable to permit an extension of time because of that extensive legal involvement and, therefore, the significance of the failure in the overall context of events. Accordingly the application to extend time is also dismissed."

It was said this was in error for a number of reasons, the primary reason was that the Tribunal had not sought to go through the various steps, or exceptions, set out in section 33 of the Limitation Act which can be applied by analogy when an application for extension of time on a just and equitable basis is being made.

[8]It should be borne in mind that section 76(5) is in short and simple terms as Arden LJ said in Stott v HM Prison Service

[2003] EWCA Civ 1513

at paragraph 29:

"I would therefore allow this appeal on that short ground. I would echo the words of the Employment Appeal Tribunal in Hutchinson v Westward Television , deprecating an approach which would mean that the very simple language of section 76(5) "became encrusted with the barnacles of authority"

. On that basis the only way in which the decision of the Employment Tribunal could be set aside in this case by the Employment Appeal Tribunal was if the Employment Tribunal had taken into account facts which they ought not to have taken into account, or if the Employment Tribunal had not taken account facts which they ought to have taken into account, or if its decision was so unreasonable that no reasonable tribunal could have reached it." We would repeat that there is no obligation to go slavishly through each of the steps set out in section 33. The test that the Tribunal had to apply was the broad one, which is set out in the statute. The well known encyclopaedia Harvey on Industrial Relations , deals with just and equitable extensions at paragraph L559 in these terms:

"Whether the test is satisfied is primarily a question of fact for the tribunal to interpret, in the exercise of its discretion. The following is a non-exhaustive list of factors which may prove helpful in assessing individual cases: a) the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend the proceedings);. b) the presence or absence of any other remedy for the applicant if the claim is not allowed to proceed;. c) the conduct of the respondent subsequent to the act of which complaint is made, up to the date of the application;. d) the conduct of the applicant over the same period, e) the length of time by which the application is out of time; f) the medical condition of the applicant ;taking into account in particular any reason why this should have prevented or inhibited the making of a claim; g) the extent to which professional advice on making a claim it was sought and, if it was sought the content of any advice given."

[9]In this particular instance, the matters which are relied on by the Applicant centre very much on the absence of prejudice. Counsel says that a windfall would accrue to the Respondent if the claim were not allowed to go ahead, and in support of that, he refers to the decision of the two man Court of Appeal in Steeds v Peveral Management Services Ltd,

[2001] EWCA Civ 419

. There Sir Christopher Slade, giving the only substantive judgment with which Tuckey LJ agreed, said this:

"Looking at the matter in the round, it is not one of a thoroughly stale claim as was the Donovan case. On the contrary it was one where the Claimant acted reasonably and with sufficient promptness and cannot be fairly subjected to personal criticism. His solicitors can be fairly criticised for their admitted negligence in failing to issue a writ until seven weeks after the expiry of the limitation period. But as the Thompson and Corbin cases show, this delay is not to be held against him personally for the purpose of the exercise of the court's discretion. For the reasons which I have explained, I am not satisfied that on the particular facts of this case, any delay on the part of Mr Steeds or the solicitors has caused the respondents any material prejudice. In this case, as in Thompson and Corbin , where the time elapsed after the expiration of the primary limitation period was so short, what the respondents would lose in consequence of a direction under section 33, might truly be regarded as being in the nature of a windfall. In my judgment any supposed injustice that might be suffered by the respondents as a result of the deprivation of that windfall would be substantially less than the injustice of Mr Steeds would suffer if, simply as a result of his solicitor's negligence, he found himself obliged to pursue the alternative claim against them, instead of his good claim against the respondents with all the further delay and additional problems in proving the amount of damage which the alternative claim would involve."

[10]That was cited to us as if it stated some form of proposition of law; it does not. It is an application of the law to the particular facts of the case in the situation where an Applicant would be forced to bring proceedings against his solicitor, and lose his claim against the supposedly wrongdoing defendant who in that case was supposed to have failed to maintain a payment. The question is not, however, as simple as asking "Can they show prejudice or not?" As section 76(5) shows, it is much more general. The other factors which were taken into account, or should have been taken into account were said to be in particular the Applicant/Appellant's ill-health, and the comparatively short period of delay. And it was said it would be extremely unfair for the case to be struck out, because it would be more appropriate for a case of this sort to be dealt with by the Employment Tribunal, rather than in negligence proceedings.

[11]It is true that the Employment Tribunal did not spell out each and every one of those points. So far as the health point is concerned, it does not appear that there was any evidence which suggested for a moment that the Applicant/Appellant was not in a position to make her application within due time, as a result of any ill-health or medical condition. So far as this being a windfall to the Prison Service, that in a sense is true of every case in which a limitation period is missed. Beyond that, it is true that ideally claims relating to industrial matters should be dealt with in the Employment Tribunal system, but equally once the claim becomes the claim for breach of professional duty that is something which is more aptly dealt with in the normal Court system.

[12]No doubt, as was suggested, the Applicant/Appellant does indeed feel very strongly about this case, but that in itself is not a good reason to reach any particular conclusion about whether it is just and equitable to allow the case to proceed.

[13]The high water mark, it seems to us, of the Appellant's case, is that the Tribunal did not spell out in the course of their decision any detriment to the Respondent, and indeed it was readily conceded that there was no specific detriment in this particular case, beyond having to go on having to defend the case which it would not otherwise have defended. This was not a case where witnesses had slunk away and got lost; it was a case where effectively the same evidence had been prepared for the Civil Service's Appeal Board. But the mere fact that no balance of detriment was expressly mentioned does not it seems to us answer the question as to whether the Tribunal failed to take it into account. As Charles J said in Gonnella v The Benefits Agency unreported

EAT/1156/98

, judgment delivered 25 February 2000, at paragraph 14:

"The fact that the Employment Tribunal do not mention something in their reasoning does not mean that it should be concluded that they did not have regard to it, or that they erred in law. This is particularly the case when the exercise of discretion is being considered and the facts or factor it is said the Employment Tribunal failed to take into account, or failed to take into account properly, is included in the facts found or set out."

[14]Here there was no finding of any detriment to the Respondent, and so far as detriment to the Applicant is concerned, the Tribunal did expressly make clear that they thought she could pursue any remedy that she might have against the solicitors (see paragraph 20). "Accordingly the application to extend time was also dismissed; we remind the Applicant that she has a remedy elsewhere, if of course she is able to persuade a civil court that there has been negligence by her former solicitors". That slightly cryptic last clause refers back to the fact there was an issue between the solicitor and his client as to whose fault it was that the proceedings were not issued in time.

[15]Reverting to paragraph 29 of Charles J's judgment in Gonnella : he said "The lack of any prejudice to the Respondents in the presentation of their defence is a factor that is not expressly mentioned by the Employment Tribunal in their recital of the Appellant's arguments or elsewhere in the Extended Reasons. It was not argued before us that this was a factor relied on expressly by the Appellant before the Employment Tribunal which they omitted to record. We make no criticism of those representing the Appellant for not expressly advancing, or seeking to emphasise, this point in favour of an extension of time before the Employment Tribunal because it seems to us on a fair reading of the Extended Reasons that, in the circumstances of this case, it was an obvious factor and a starting point for(i) both sides, and

(ii) the Employment Tribunal in their consideration of the issue whether or not it was just and equitable to extend time. The lack of prejudice to the Respondents was therefore "joint common ground". If this had not been the case there would have been an argument as to, or a reference to, points of prejudice raised by the Respondents. It follows that in our judgment the fact that this factor is not expressly mentioned in the Extended Reasons does not lead to the conclusion that it was left out of account." In this case it seems to us the position is this that there was on the one hand prejudice which was recognised by the Tribunal, in that the claim would not go ahead, and that the Applicant/Appellant would be left with the less certain claim against her former solicitor (former by the time these reasons were given, because he and his client parted ways when it became apparent there was a conflict of evidence between them before the Tribunal as to the reason why the proceedings were not issued in time). On the other hand, the Tribunal did not suggest that there was any counter balancing, hardship, or prejudice to the Prison Service.

[16]This was not therefore a case, where something was left out of account which would have assisted the Applicant. It was suggested in a slightly half hearted manner that there might have been other parts of section 33 which should have been mentioned, should have been raised and might have given assistance to the Applicant/Appellant. Questions from the bench did not elicit what those were, and it seems to us that it is not open to the Applicant/Appellant simply to assert that there was an error of law by failing to refer to section 33, or the various matters listed under it, in the Limitation Act . That much indeed was on occasion accepted by the representative of the Applicant/Appellant in the course of his submissions.

[17]What it boils down to, is this that the Employment Appeal Tribunal cannot interfere with a decision by an Employment Tribunal in which it exercises discretion, which is, pre-eminently what a Tribunal does in deciding whether it is just and equitable to extend time, unless;(i) the Tribunal has taken into account something it ought not to have taken into account;

(ii) it has not taken account something which ought to have taken into account; or

(iii) it has reached a decision which is manifestly perverse. (I use the expression manifestly perverse, to cover that wide range of expressions which are used as paraphrases for the word perverse).

[18]There is nothing that the Tribunal appears to have left out of account, which it should have taken into account. It does not appear to have taken into account, anything which it should not have taken into account, and when we ask ourselves the question "Is this decision perverse?" or "Is this a decision which makes us think, goodness, that must be wrong, or that cannot be right?" Or any similar expression, we are quite unable to say "No that must have been a mistake".

[19]In our Judgment, this was a decision to which the Employment Tribunal was entitled to come. It is therefore not open to us to overturn it, and it follows from that, that the appeal in relation to the sex discrimination claim will be dismissed, along with the claim in relation for unfair dismissal. The appeal will therefore for these reasons be dismissed.