MISS M HUNWICKS v ROYAL MAIL GROUP PLC [2007] UKEAT 0003_07_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0003_07_2003Case No Appeal No. UKEAT/0003/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M HUNWICKSAPPELLANTROYAL MAIL GROUP PLCRESPONDENT
Before
Mr Justice UnderhillDate 20 March 2007
[1]APPEARANCES For the Appellant Written Submissions For the Respondent MISS JUDE SHEPHERD (of Counsel) Instructed by: Messrs Bond Pearce LLP Solicitors 3 Temple Quay Temple Back East Bristol BS1 6DZ SUMMARY Time Limits – Just and equitable extension The Tribunal had not erred in refusing to extend time on 'just and equitable' grounds, notwithstanding that the Appellant had not been aware of the relevant time limits and that – after the expiry of the time limit – she had received wrong advice from her trade union: Hawkins v Ball [1996] IRLR 258 distinguished. THE HONOURABLE MR JUSTICE UNDERHILL This is an appeal against the decision of an Employment Tribunal Chairman sitting at Exeter dismissing the Appellant's claim for disability discrimination on the basis that it was brought out of time. The Appellant has not been able to obtain representation for the purpose of the appeal, notwithstanding that it was held on the sift to raise an arguable point, and in those circumstances she has elected not to attend but to rely on her written submissions. It is a pity that she was apparently unaware of the availability of pro bono representation. She has, however, set out the facts and arguments on which she relies with great clarity, not only in her written submissions and chronology for the purpose of the appeal to this Tribunal but also in her original witness statement before the Employment Tribunal and in the e-mails which she sent to the Tribunal following its decision, which were treated as amounting to an application for review. I do not therefore think that she has been disadvantaged by her non-attendance. She is, if I may say so, clearly an able and articulate person and well able to make the points which she wanted to make.[2]The sequence of events leading to the claim can be summarised as follows. The Appellant is employed by the Respondent, the Royal Mail Group plc. She suffers from epilepsy and is disabled within the meaning of the Disability Discrimination Act 1995 . In January 2004 she was removed from something called the "reserve managers list". It is unnecessary for the purpose of this appeal to set out how this list operates; what matters is that her removal constituted a detriment and that this detriment was the act of discrimination relied on in the present proceedings. The Appellant was off sick at the time that she was removed from the list and did not learn of what had happened until October 2005. She immediately initiated the Respondent's internal grievance procedure. The first, informal, stage of the procedure started with a meeting with the responsible manager on 25 October 2005. The Appellant was accompanied to that meeting by her union representative, Mr Webb. She received the result of that stage, described in the jargon as the "feedback", on 6 December 2005. She was dissatisfied and initiated Stage 2 of the procedure. That involved a meeting with a different manager on 10 January 2006 at which she was again accompanied by Mr Webb. She received the feedback from that stage on or about 16 January. She was again dissatisfied and took the matter to Stage 3, which involved a meeting on 7 March and feedback on 24 March. The present proceedings, alleging disability discrimination were presented a week later, on 31 March 2006.[3]The Appellant's claim was plainly, on the face of it, out of time. By paragraph 3(1) of Schedule 3 of the 1995 Act a complaint of disability discrimination must be presented before the end of the period of three months beginning when the act complained of was done. There is no dispute in the present case that the act complained of was done in January 2004. This is not a case where time is extended by virtue of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, because the act complained of preceded the coming into force of the Regulations. Accordingly, at a pre-hearing review on 1 September 2006, a chairman ordered a further hearing to determine whether it was just and equitable to extend time in accordance with paragraph 3(2) of Schedule 3.[4]At that hearing the Appellant put in a witness statement which explained how she first heard of her removal from the list in early October and immediately proceeded to lodge a grievance. She said this:
"I am a member of the CWU and gained representation from Chris Webb. Around the stage two of my grievance I was not happy with the time being taken or the responses being given to resolve my grievance so I asked Chris Webb about taking my case to an Employment Tribunal. He informed me that I had to exhaust the internal procedures before I could make a claim to the Employment Tribunal. Document 75, points 2-6 show the advice given by the CWU. He did not advise me of any time limits and so I knew no different."
The document there referred to does not record specific advice given to the Appellant but a document apparently provided for or by the Union summarising the effect of the 2004 Regulations. After a further paragraph amplifying her case that she had no reason to know of the removal until October 2005, she said this:
"Royal Mail's own grievance procedure guidelines, document 50 point 4 states that 'Complaints will be handled as speedily as possible. Normally all stages in a procedure will be completed and the outcome cleared with the individual within 28 working days of a complaint being raised.' Royal Mail took five months to deal with my grievance. Had they complied with their own time limits I would have exhausted the internal procedures within three months of my knowledge of the act complained of and I would have entered the ET1 within three months."
[5]It is clear that the advice that the Appellant says, without contradiction, that she was given by her Union was wrong. It is plain that the Union, perhaps venially, failed to appreciate that because the act complained of was so far in the past the case was not one which fell within the regime of the new regulations, so that the relevant time limit was six months and not three. Nor, even if the new regulations had applied, would it have been entirely safe advice to defer bringing proceedings until the outcome of the grievance procedure (though that would depend on what the date of the act complained of was and how long the procedure took): it remains the law that the non-exhaustion of domestic internal procedures will not necessarily be treated as a sufficient reason for extending time in cases where the Tribunal has jurisdiction to do so on the basis of what is just and equitable, and it is indeed arguable that normally it will not be - see Robinson v Post Office [2000] IRLR 804 and the observations of Peter Gibson LJ, which arguably go somewhat further, in Apelogun-Gabriels v London Borough of Lambeth & another [2002] ICR 713 , particularly at page 719.[6]The Chairman, having heard submissions, refused to extend time. His reasons, promulgated in what appears to be a reserved judgment dated 31 October 2006, were shortly stated and it is simplest if I recite them in full. They are as follows:
"1. This is a pre-hearing review to determine whether the claimant has lodged her claim for disability discrimination within the statutory time limit of three months and if not whether the tribunal should exercise its discretion to extend that time if it is just and equitable to do so. The burden lies upon the claimant to make out her case. 2 The act of alleged discrimination took place in January 2004 when she was removed from a list of managers. This took place whilst she was absent sick. She was not informed of her removal and did not learn of it until 10 October 2005. 3 On 25 October 2005 she lodged a grievance which included her removal from the list. Although the respondent's policy sets a time of 28 days to determine a grievance this took much longer. The claimant was dissatisfied with the result and lodged her originating application with the tribunal on 31 March 2006. 4 The claimant can not apply to a tribunal until she is made aware of the discrimination. This was 10 October 2005. I find that time should run from that date, and that the claim should be lodged by 9 January 2006. Acting on the advice of her Trade Union the claimant delayed lodging her claim until the in house grievance procedure was exhausted. It was lodged on 31 March 2006. 5 She says that if the respondent had dealt with her grievance within the time limit laid down she would have lodged her claim immediately and would have been within the statutory time limits. But Robinson — v — The Post Office (2000) IRLR 804 makes it clear that the running of time should not be delayed until the end of the domestic process. 6 This is not a claim that attracts an automatic extension of time under the provisions of the Employment Act 2002. 7 The claimant has had the benefit of legal advice from her Trade Union. 8 I find no acceptable reason to extend the time in this case. The claim has been lodged out of time and the tribunal has no jurisdiction to hear it."
The essence of the decision was thus that the Appellant's delay until 10 October 2005 was justified and that time should be treated as extended to three months from that date - that is, to 9 January 2006 - but that there was no justification for the delay thereafter.[7]As I have already mentioned, the Appellant wrote to the Tribunal on more than one occasion following receipt of that decision and her letters were treated as an application for a review. On 23 January 2007 the Chairman promulgated a further short judgment refusing the application for a review. The material part of the decision is as follows:
"The evidence given at the hearing was that the Trade Union advised you at all material times. In particular it advised you on the procedure that you could follow. That procedure included advice that you should exhaust the internal appeal process before making a claim to the tribunal; and on 24 March 2006 advised you specifically on the statutory time limits. This tribunal finds that you should have known the statutory limits. It was a matter for you whether you sought third party advice and if you did whether you accepted it or not. No evidence was offered as to an acceptable reason for the tribunal to exercise its discretion to enlarge the statutory time limits..."
[8]The Appellant in her written submissions takes what are essentially two (albeit related) points. First, she says that the question of bringing Tribunal proceedings had not even arisen between her and the Union before the expiry of the (notional) primary time limit on 9 January 2006. She had not raised it with Mr Webb and he had not raised it with her. As appears from her email to the Tribunal of 28 November 2006 which eventually gave rise to the review application, and from the chronology submitted to this Tribunal for the purpose of this appeal, it was not until the aftermath of the Stage 2 meeting on 10 January 2006 that she raised with Mr Webb the possibility of bringing Tribunal proceedings. She did not give a precise date. It may have been on 10 January itself or it may perhaps have been a few days later, when she received the feedback from that meeting. She says that she raised the question of Tribunal proceedings at that date because she was becoming frustrated at the length of time that the process was taking. Until that point, she was wholly unaware of Tribunal procedure, including any question of time limits. All that she knew about Employment Tribunals was what she had picked up casually from references in the media. She says that it is not fair to exclude her claim by reason of time limits of which she was unaware, particularly when the Union had done nothing to draw them to her attention. Secondly, she says that she should not be prejudiced by the fact that when the Union did in fact advise her that advice was wrong.[9]As to the first point, this is not compelling. The fact that a claimant may have been unaware of relevant time limits does not necessarily make it just and equitable to extend them, particularly where, as here, the claimant is a person of some intelligence and some education with access to legal advice. It will frequently be fair to hold claimants bound by time limits which they could, had they taken reasonable steps, have discovered. This is no doubt what the Chairman meant, albeit that it is somewhat provocatively phrased, when he said in his review decision that "you should have known the statutory time limits."[10]It is true that in the present case the Appellant had in fact already consulted the Union. But she had not done so about bringing a Tribunal claim. What she had sought Mr Webb's help with was bringing an internal grievance. There may well be cases where a Union which is consulted about an internal grievance or, say, a disciplinary appeal, should appreciate that a Tribunal claim is also on the agenda. In such cases the employee may well have cause to complain if relevant time limits are not drawn to his or her attention; and that may in turn be relevant to the question of whether it is just and equitable to extend time. But this does not appear to have been a case of that type. This was, so far as the Union will have been concerned, a straightforward case of help with an internal grievance procedure. There was no particular reason to believe that the claimant wished to bring any claim to the Tribunal, or indeed was in a position to do so, since the formulation of the grievance does not appear to have focused on questions of disability discrimination. The Appellant in fact makes it quite clear that at no point until 10 January 2006 did she so much as mention the possibility of a Tribunal claim.[11]It is also true that it seems likely - though it is important to appreciate that we cannot be sure - that if the Appellant had in fact sought advice prior to 9 January 2006 on a potential Tribunal claim, she would have received the same wrong advice as she did when, belatedly, she did raise the question with her Union. But I cannot see that that is logically relevant, given that she did not seek such advice before the expiry of the extended "notional" primary time limit.[12]Although the Tribunal's reasons on this aspect are briefly expressed, and there are one or two expressions (particularly in the review decision) which I do not fully follow, I can see no sign of any error of law. It seems to me that this was, and that the Chairman plainly regarded it as, a straightforward case of a kind where the Appellant's ignorance of time limits did not amount to a factor sufficient to justify the exceptional step of extending time in her favour.[13]I turn to the second point, which is the one which appears to have influenced the Tribunal in allowing this appeal to proceed at the sift stage. There are indeed a number of decisions in this Tribunal which clearly establish that where a claimant has missed a relevant time limit as a result of relying on bad advice from a skilled adviser, including a trade union, that is a relevant factor which the Tribunal should consider in deciding whether it is just and equitable to extend time: see Hawkins v Ball [1996] IRLR 258; Chohan v Derby Law Centre [2004] IRLR 685 ; Baynton v South West Trains Ltd ; [2005] UKEAT 0848/04; and Anderson v George S Hall Ltd [2006] UKEAT 0631/05. (I should say in passing that some of those cases arguably appear to go further and say that the claimant's reliance on wrong advice as to time limits should be a decisive factor; but Miss Shepherd, who appears for the Respondent, submits, in my view plainly rightly, that that is going too far. The fact that the claimant has missed the deadline as a result of bad advice is simply one factor, and whether it is decisive in his or her favour will depend on all the circumstances of the case. That is, of course the position with the analogous, though not identical, jurisdiction under s33 of the Limitation Act 1980 : see, for example, Donovan v Gwentoys Ltd [1991] WLR 472.)[14]However, what Miss Shepherd submits is that the present case on its facts simply does not fall within the scope of the Hawkins v Ball line of authorities. The crucial distinguishing point is that the notional three-month deadline, i.e. as extended from 10 October 2005, had already expired before any question of the Appellant being misled by the Union arose. As I have already explained, that point is expressly made by the Appellant herself in her own documents, albeit for a different reason. The Union's mistake thus had no causative effect. The damage was already done. That being so, there was no need for the Chairman to put this point into the balance in the way indicated by the authorities and there was no misdirection in his failing to do so.[15]That submission seems to me to be correct. The position might be different if the Chairman had attached any significance to the delay between mid-January and the eventual issue of proceedings at the end of March. But it seems clear that he did not do so. He treated this straightforwardly as a case where it was for the claimant to advance a reason for extending the time limit (see both paras 1 and 8 of his original judgment) and where, having rejected the reasons which she advanced for doing so, he had no basis for the exercise of discretion in her favour. There was, on that reasoning, no call for the Chairman to decide what weight should be given to the fact that the Appellant had received bad advice, and I see no error of law in the fact that he failed to do so.[16]For those reasons, this appeal must be dismissed.