IMPERIAL TOBACCO LTD v MR D J WRIGHT [2005] UKEAT 0919_04_2207

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0919_04_2207

Case No Appeal No. UKEAT/0919/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

IMPERIAL TOBACCO LTDAPPELLANT

MR D J WRIGHTRESPONDENT

Before

Mr Justice Rimer Mr I Ezekiel Ms B Switzer

Date 22 July 2005

[1]APPEARANCES For the Appellant MR STEPHEN ROBERTS (Of Counsel) Instructed by: Messrs Osborne Clarke 2 Temple Back East Temple Quay Bristol BS1 6EG For the Respondent NEITHER PRESENT NOR REPRESENTED SUMMARY Whether the Employment Tribunal Chairman misdirected himself in concluding that it was not "reasonably practicable" for the unfair dismissal complaint to be presented before the end of the three month period specified in section 111 of the Employment Rights Act 1996. THE HONOURABLE MR JUSTICE RIMER This is an appeal by Imperial Tobacco Limited ("ITL") against a judgment of a chairman of tribunals, Mr J.K. Macmillan, sitting at Nottingham. The hearing was on 25 October 2004 and the judgment was sent to the parties on 2 November. ITL was the respondent before the tribunal. The claimant was Mr David Wright, a former employer of ITL. His claim was for alleged unfair dismissal. The only issue which was the subject of the judgment under appeal was whether, because of the lapse of time before Mr Wright presented his originating application, the tribunal had jurisdiction to consider his application. The chairman held that it did. ITL now challenges that decision. Before the chairman, ITL was represented by Ms A. Palmer, but before us it has been represented by Mr Stephen Roberts. Mr Wright appeared in person before the chairman, but has neither appeared nor been represented before us. There is no doubt that he knew of the hearing date: he submitted a skeleton argument for the hearing which referred in terms to its date.

[2]The brief relevant facts are as follows. On 4 March 2004, Mr Wright was the subject of a disciplinary hearing conducted by ITL. The outcome was that he was dismissed with immediate effect. He lodged an internal appeal against that decision which, for various reasons, was not heard until 11 May 2004. His appeal was dismissed, and ITL's letter of 18 May 2004 confirming that outcome also told him that the appeal represented the final stage in the internal grievance procedure.

[3]The chairman held, and it is not in issue, that the effective date of termination of Mr Wright's employment was 4 March 2004. It followed that the period within which it was open to him to present an originating application asserting that his dismissal was unfair was three months commencing on 4 March. That time limit is prescribed by section 111(1) and (2) of the Employment Rights Act 1996, which provide:

"(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) Subject to subsection (3) [which is not material], 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 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."

[4]The three-month period expired on 3 June 2004. In paragraph 7 of his reasons, the chairman described it as expiring on 3 July 2004, which was plainly an unnoticed error, but it is not suggested that, on the facts of the case, that error by itself undermines the chairman's decision.

[5]In fact, Mr Wright did not present his originating application until 2 August 2004. That was well outside the three-month period and so the employment tribunal could only consider his application if(i) it was satisfied that "it was not reasonably practicable" for him to present it by 3 June 2004; and

(ii) it was thereafter presented within a further period that the tribunal considered reasonable. The chairman answered both questions in favour of Mr Wright and so concluded that it was entitled to consider Mr Wright's complaint on its merits. ITL challenges both conclusions. The tribunals' findings and conclusions

[6]In dealing with the first issue just identified, the chairman explained that Mr Wright was dismissed because of a poor attendance record over a long period. He had 44 days of absence between March and May 2003. He suffered from heroin addiction and on 24 November 2003 he began a period of absence intended to be devoted to weaning him off his addiction, an addiction which was linked to his depression and caused him money problems. He returned to work, apparently cleaned of the addiction, but following his dismissal he returned to heroin abuse. He quickly spent his £2,000 severance payment on drugs.

[7]The chairman, having heard evidence from Mr Wright and his father, found that, at least until the date of his internal appeal on 11 May 2004, Mr Wright:

"… had not descended to the depths of abuse, although he was not clean. It was the rejection of his appeal on the 11 th May which, in his own words, caused him to go off the rails."

Mr Wright's father said that either on 11 or 18 May 2004 (the chairman said it was unclear but made no difference), Mr Wright disappeared. He had been living with his parents, although he also owned his own house. The chairman accepted that evidence. He further accepted Mr Wright's evidence that, for a period of eight weeks until about the middle of July 2004, he descended into depths of drug-induced degradation when he either slept at a centre for substance abusers and the homeless or on the floor of a friend's room. The chairman's conclusion on the evidence was that:

"18. I am satisfied from what I have heard that he could not realistically have formed the intention to present these proceedings during that time or having done so, to carry that intention into effect. That is not to say that he was not from time to time in contact with people who were advising him about what to do. He certainly had counselling at the Emmanuel Centre and the counsellor suggested that he should do precisely that, commence tribunal proceedings although offered no practical assistance to do so. But David was only interested in getting a hot meal and no doubt where the next fix was coming from. 19. It was not until early to mid July that he, as he puts it, decided that he had to get his act together and began to set up tentative meetings with his parents. On a date which cannot now be accurately identified but which was somewhere in the middle of that month, he went back to live with his parents. It must have taken some determination to wean himself off the drug. He had some medicine left over from his experiences in November 2003 and it took him about ten days to detox. Thereafter, and no doubt during that period, in addition to commencing these proceedings, he also had to worry about repossession proceedings for his house and other pressing claims for debt. 20. I am satisfied on the evidence that I have heard from Mr Wright which, as I have said, in my judgment is entirely truthful, that between about the 11 th May and about the middle of July, it was not reasonably practicable for him to commence these proceedings. He was simply in no fit state to do anything about it and for that reason it would be wholly unrealistic to insist that the normal considerations about obtaining advice applied to him. I reject as being an argument based on moral scruple rather than statutory interpretation, and therefore repugnant for that reason alone, if for no other, Ms Palmer's submission that this was Mr Wright's choice: if he chose to spend his severance payment on heroin and chose to go off the rails that was matter [sic] for him – it was a self inflicted wound on which he should not now be able to rely. I also do not find her submission that a similar argument could be made by anyone who was depressed as a result of being dismissed, to be remotely attractive. Given Mr Wright's unfortunate background and the undoubtedly genuine effect on him of the dismissal and the unsuccessful appeal, the comparison is disparaging."

[8]The chairman found, therefore, that it was not "reasonably practicable" for Mr Wright to present his originating application by 3 June 2004 (the chairman would say, wrongly, 3 July 2004, but the greater period must, on the chairman's findings, include the less and so the date error makes no difference). The chairman's further finding appears to have been that the earliest moment it did become "reasonably practicable" to present the application was in about mid-July. The application was not in fact presented until 2 August, but the chairman also found that the further period until then was a "reasonable" one within which to present it. He said:

"21. But is the delay between, roughly speaking, the middle of July and the 2 nd of August a further reasonable period of time? Ms Palmer submits not. It is, she says, the work of the moment to download a copy of the Originating Application from the internet, to fill it in and to submit it, and indeed it is. But as Mr Wright senior has said, this was a matter for David and not for him, and it was necessary for David to recover himself sufficiently to undertake the task. I am satisfied, in the circumstances of this case, that the additional two weeks or so delay was a further reasonable period of time in which to bring these proceedings."

The appeal to this tribunal

[9]The burden of proving that it was not "reasonably practicable" to present the originating application in time lies on the claimant: Porter v. Bandridge Ltd

[1978] IRLR 271

. The sense of the words "reasonably practicable" in the present context has been the subject of several reported decisions. A helpful review of them is contained in the decision of the Court of Appeal in Palmer and Saunders v. Southend-on-Sea Borough Council

[1984] IRLR 119

. That decision makes it clear that question of whether it was or was not "reasonably practicable" for the complaint to be presented within the three-month period is primarily one of fact for the employment tribunal and that appeals against their decisions should be discouraged. The authorities illustrate the difficulty of furnishing a clear explanation of the true sense of the key phrase but the view which emerges from the Palmer case is that the sense of the relevant provision is perhaps best explained by re-stating it in the following synonymous terms, namely "was it reasonably feasible to present the complaint within the three-month period?"

[10]Mr Roberts sought to advance three main challenges to the chairman's decision, although he ultimately placed little reliance on two of them. We will deal with those two first. Was it reasonably practicable to present the originating application prior to mid-May 2004?

[11]The first point was that even if the chairman was right to conclude that, because of the consequences of Mr Wright's drug abuse, it was not reasonably practicable for Mr Wright to present his application during the period from about mid-May 2004 until after 3 June 2004, there was no basis for any conclusion that it was not reasonably practicable for him to present it during the period from 4 March to mid-May 2004. The chairman disposed of that point as follows:

"14. There is no obligation on a claimant to bring employment tribunal proceedings as soon as reasonably practicable. They are entitled to await the outcome of an appeal particularly, as in Mr Wright's case, if they are confident that the original decision to dismiss will be overturned and provided that the time limit for bringing proceedings does not expire. Nothing therefore can be held against Mr Wright for not presenting his tribunal claim before the internal appeal was concluded."

[12]Assessing those observations apart from authority, one reaction to them might be that they do no more than advance an explanation as to why, in the given circumstances, it was not reasonable for the complaint to be presented within the three-month period - because it was reasonable for the complainant first to want to explore the possibility of resolving the problem by an internal appeal. But does the explanation also show that it was not " reasonably practicable " (or reasonably feasible) for the complaint to be presented within that period?

[13]Although Mr Roberts's submission was that the answer to that question ought to be "no", he very properly referred us to the decision of the Court of Appeal in Schultz v. Esso Petroleum Company Ltd

[1999] IRLR 488

. Mr Schultz presented his unfair dismissal complaint some six months out of time. The tribunal found that, although he had been too ill (because of depression) to give instructions to his solicitors during the final six weeks of the three-month period, he had been sufficiently well to instruct them during the first seven weeks. They further held that it was, therefore, reasonably practicable for him to present his application in time. This tribunal upheld that decision but the Court of Appeal allowed Mr Schultz's appeal and substituted their own assessment that it had not been so practicable for Mr Schultz to have presented his application within the three-month limitation period.

[14]The main judgment was delivered by Potter LJ who, in paragraphs 29 and 30, explained that to conclude that on these facts it was " reasonably practicable" for the complaint to be presented in time would involve a serious over-simplification of the exercise that has to be performed in answering the relevant question. That exercise requires the question to answer against the background of both the surrounding circumstances and of the aim to be achieved. The former will include the claimant's wish to avoid litigation by pursuing his alternative remedy of an internal appeal. The latter is not the immediate issue of proceedings in the employment tribunal, but their issue with some time to spare before the expiry of the limitation period. Those twin considerations mean that the assessment of whether it was "reasonably practicable" for the complaint to be presented within the limitation period requires the focus of attention to be upon the closing rather than the early stages of that period. Potter LJ did not accept counsel's 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."

[15]The facts of the present case have similarities to those in Schultz , and in paragraph 14 of his reasons the chairman was effectively echoing the spirit of the Court of Appeal's approach in the Schultz , although we do not know whether he was referred to Schultz .We understood Mr Roberts ultimately to accept that an adoption in the present case of the approach explained by Potter LJ in Schultz would have led to the same conclusion as that which the chairman arrived in paragraph 14. We will simply say that, in the light of Schultz , we do not consider that the chairman made any error of law in reaching the conclusion that he did there reach. Assuming it was not "reasonably practicable" for the claim to be presented by 3 June 2004, was the period between then and its later presentation (on 2 August 2004) a reasonable one?

[16]The chairman's finding was that the disabling effects of Mr Wright's heroin abuse continued until about mid-July 2004. On the footing (which for present purposes we assume) that the chairman was right to find that (because of these effects) it was not reasonably practicable for the complaint to have been presented within the three-month period, and that such effects continued until about mid-July 2004, the question here raised is whether the chairman was in error in going on to conclude as he did in paragraph 21 of his reasons (earlier quoted). The only point advanced in support of the argument that he was in error is that it is said that he failed to take account of the fact that on some uncertain date prior to 2 August 2004 Mr Wright was, so it is said, able to deal with the sale of his house during this period. If so, it is said he could also deal with the presentation of an application to the employment tribunal. The complaint is made that the chairman nowhere dealt with this in his reasons.

[17]Mr Wright's skeleton argument asserted that, whilst in July 2004 he was faced with repossession threats from his mortgagee, he did not in fact sell his house (which was repossessed in October) and that he anyway did not deal with the matter himself, but gave his mother a limited power of attorney on 16 July 2004 authorising her to sell his house. A copy of the power of attorney is before us although it was not in evidence before the chairman. Mr Roberts raised no objection to the placing by Mr Wright of the reliance he did on that power even though it was not so in evidence.

[18]In the event, Mr Roberts advanced no sustained argument in support of this ground of appeal either, and in our view he was right not to press it. The period of delay between Mr Roberts's emergence from the effects of his drug abuse in about mid-July 2004 and the presentation of the originating application on 2 August 2004 was modest. It was pre-eminently a question of fact for the chairman whether that period (plus the prior period from 3 June to mid-July 2004) was a reasonable further period within which to present the application. In our judgment, the tribunal's conclusion that it was involved no error of law. This ground of appeal fails as well. Was the chairman wrong to regard the disabling effects of Mr Wright's drug abuse as showing that it was not "reasonably practicable" for Mr Wright to present the application within the three-month period?

[19]The notice of appeal described this head of challenge to the chairman's decision as follows:

"6.1 The Employment Tribunal found [para 20] that it was not reasonably practicable for the Respondent to file an application with the tribunal because the Respondent was 'simply in no fit state to do anything about it' or to obtain advice when such unfitness was as a result of the Respondent's self administration of heroin. It is an error of law for a Tribunal to rely upon the improper use by the Respondent of heroin and/or other drugs to excuse his failure to comply with the procedural requirements of the employment tribunal."

[20]In his skeleton argument in support of the appeal, Mr Roberts developed this argument by asserting that, on his own admission, Mr Wright had purchased and used heroin, a Class A drug. He said that it is a criminal offence to be in possession of a controlled drug. He said that it is a general principle of the common law that a party may not rely on his own wrong to secure a benefit, for which he referred us to statements to such effect (albeit uttered in a very different context) by Waller and Laws L.JJ in Coudert Brothers v. Normans Bay Ltd

[2004] EWCA Civ 215

. He also sought to derive assistance from DPP v. Beech (1992) RTR 239, which raised a question (answered by the Divisional Court of the Queen's Bench Division in the negative) as to whether a driver's self-induced intoxication amounted to a "reasonable excuse" within the meaning of section 7 of the Road Traffic Act 1998 for not providing specimens of breath, or of blood or urine, when required to do so in pursuance of the section. Leonard J, in a judgment with which Woolf LJ agreed, said at page 246:

"It would, in my view, defeat the object of the legislation, which is intended for the protection of the public, to hold that the fact that the defendant was too drunk to understand what was said to him could provide him with a reasonable excuse. It would also be an abuse of language so to describe it."

[21]We do not propose to rule upon this particular line of argument. We made it clear to Mr Roberts during the argument that we would reserve until this judgment our decision as to whether to allow him to rely on this submission and our conclusion is that we should not.

[22]First, whilst we do not consider that either of the two authorities to which Mr Roberts referred us sheds direct light on the question, we accept that it is arguable that public policy should prevent a claimant to an employment tribunal from relying on the consequences of his own criminal act as reasons why it was not "reasonably practicable" to present an originating application within the relevant limitation period. Second, we express no view on whether any such argument would be well-founded. Third, no such point was taken before the chairman. The only point based on Mr Wright's drug taking that was taken before him appears to have been that it was his own choice to do so and that it followed that he could not invoke the consequences of such choice in asserting that it was not "reasonably practicable" for him to present his complaint within the three-month period. Fourth, Mr Roberts's submission to us was therefore a new point being taken for the first time on appeal, being moreover a point which required us to do that which the chairman did not, namely to make a finding that Mr Wright's possession and use of drugs amounted to the commission of a criminal offence. Fifth, that point was not even raised in the notice of appeal (which makes no express assertion that Mr Wright's conduct amounted to a criminal offence): it was only raised for the first time in Mr Roberts's skeleton argument. Sixth, new points on appeal cannot be taken as of right before this tribunal, and in the circumstances we have outlined we concluded that it would be wrong for us to embark upon an argument which depended upon the making by us of a finding as to Mr Wright's alleged criminality, particularly in view of the fact that Mr Wright was not present at the hearing in order to answer the argument. The consequence is that we pay no regard to this particular submission from Mr Roberts. More formally, we do not permit the point to be taken before us.

[23]Mr Roberts advanced an alternative submission, namely that, whether or not any criminality was involved, the taking of drugs by Mr Wright, with the consequences to which the chairman referred, was anyway an improper act. He said the chairman should have taken account of that consideration in deciding whether its consequences justified the conclusion that it was not "reasonably practicable" for the complaint to be presented in time. It is not entirely clear to us that this particular point was in terms taken before the chairman. We infer, however, from the chairman's reference to Ms Palmer's "argument based on moral scruple" in paragraph 20 that it probably was, although the main thrust of the argument there recorded appears to have been that Mr Wright's difficulties were the result of his own choice and so were ones on which he should not be entitled to rely. Mr Roberts submitted that the circumstances of the present case were such that the chairman could and should properly have found that Mr Wright's difficulties during the period mid-May to mid-July 2004 were the consequence of his own improper choice of action and that they were therefore the result of relevant fault on his own part. He said that the guidance to be found in paragraph 35 of May LJ's judgment in the Palmer decision showed that the chairman could and should have held that these considerations disabled Mr Wright from claiming that it was not "reasonably practicable" for him to present his complaint within the three-month period. May LJ said this:

"35. What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisors' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his advisor which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account."

[24]Mr Roberts relied in particular on the penultimate sentence in that paragraph, referring to the question of whether there had been any relevant fault on the part of the employee. Ms Palmer referred the chairman to the Palmer decision although it is unclear whether she referred him to this particular passage: paragraph 12 of the chairman's reasons shows that she placed particular reliance on another passage in the judgment, one she deployed with a view to meeting the different point that the pursuit of the internal appeal did not by itself show that it was not reasonably practicable to present the application in time. However, we accept that it was implicit in the submission attributed to Ms Palmer in paragraph 20 of the chairman's reasons that she was saying that it was Mr Wright's own fault that he could not present the application in time.

[25]We have not found this aspect of this appeal easy since we consider that the chairman's reasoning in paragraph 20 could usefully have been expanded so as to explain it more fully. The first, and crucial, finding in that paragraph, based on the evidence given to the chairman, was that it was not "reasonably practicable" for Mr Wright to have presented his complaint during the period mid-May to about mid-July 2004. The second finding in it was that the argument based on "moral scruple" and that the consequences of the resumption of his drug addiction were (in effect) Mr Wright's own choice should be rejected. A third finding was that it was inappropriate to suggest that, if Mr Wright was entitled to rely on the facts he did, then "a similar argument could be made by anyone who was depressed as a result of being dismissed ….". The fourth finding, following the reference to this suggested comparison, was that "Given Mr Wright's unfortunate background and the undoubtedly genuine effect on him of the dismissal and the unsuccessful appeal, the comparison is disparaging."

[26]We interpret that last finding as being to the effect that this case ought not to be regarded as a simple one in which, following the dismissal and failure of his appeal, Mr Wright made a voluntary choice whose consequences resulted in the impracticability of presenting his complaint in time. The point that the chairman was there making was, as we understand it, that the shock of those events was such as involuntarily to push Mr Wright into the resumption of the drug abuse to which he was already addicted, so that it was unreal to regard the impracticability of thereafter presenting the application in time as being in any reasonable sense the result of his own voluntary choice. The chairman does not of course spell that out, but that is how we read the sense of the final sentence of paragraph 20. In effect, he was saying that the shock caused the resumption of a condition akin to an illness, with the consequence that during the remainder of the three-month period it was not "reasonably practicable" for Mr Wright to present his complaint.

[27]On that basis, we can find no error of law in the chairman's approach and ultimate conclusion. What he did was exactly what all the authorities say he had to do, namely to make a finding on the facts as to whether or not it was "reasonably practicable" for Mr Wright to present his application in time. The chairman did just that and made a clear finding that it was not. The facts were no doubt somewhat special, but despite the clarity and cogency of Mr Roberts's argument, we are not satisfied that the chairman misdirected himself in law in coming to the conclusion on those facts that he did. We dismiss the appeal.