MR D R ASHCROFT v HABERDASHERS ASKE’S BOYS SCHOOL [2007] UKEAT 0151_07_1411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0151_07_1411Case No Appeal No. UKEAT/0151/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D R ASHCROFTAPPELLANTHABERDASHERS ASKE’S BOYS SCHOOLRESPONDENT
Before
Mr Justice BurtonDate 14 November 2007
[1]APPEARANCES For the Appellant MR ALISTAIR B HODGE (of Counsel) Instructed by: Tubervilles Solicitors Hill House 118 High Street Uxbridge Middlesex UB8 1JT For the Respondent MISS MELANIE TETHER (of Counsel) Instructed by: Messrs Travers Smith Solicitors 10 Snow Hill London EC1A 2AL SUMMARY Time limits – Reasonable practicability Appeal to the Employment Tribunal for unfair dismissal out of time. Employment Tribunal ruled out the 'reasonable practicability' route, as a solicitor was instructed and (impliedly) the fact that the internal appeal result was only given 6 hours before the midnight expiry on 6 July was of no relevance. Fresh evidence showed that the adviser instructed by the Appellant was not a solicitor. On appeal: Ground 1 dismissed, as the Dedman line of authorities did not depend on the 'adviser' upon whom the Appellant relied being a solicitor. As to Ground 2, Palmer no longer applies since Regulation 15 of the 2004 Regulations, such that an internal appeal is no longer immaterial to the reasonable practicability defence, if it means there is no time left between the result of the internal appeal and the expiry of the 3 months (e.g. Theobald and Elbeltagi ). Appeal allowed and remitted to consider the s.111(2) extension. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of an appeal by Mr Ashcroft against the decision of the Employment Tribunal, Chairman alone, at Watford on 30 November 2006 effectively dismissing the Claimant's claim for unfair dismissal on the basis that the Tribunal had no jurisdiction to hear it because the claim was out of time. There is no doubt that the relevant section, as indicated by the Tribunal is s111(2), of the Employment Rights Act 1996 , namely three months from dismissal, and these proceedings were issued at the Employment Tribunal outside the three month period.[2]The chronology, shortly put, is this. The Appellant was dismissed for gross misconduct on 7 April 2006, which is the relevant date for the running of the three months. A letter was sent on 22 April 2006 requesting an internal appeal which he sought, in which there was plainly some input from what was described as a solicitor, and in the event that was a Mr Cole, but no involvement of that person in the internal appeal once launched, which was due to be heard on 26 May. It was, in the event, adjourned at the request of the Appellant and it took place on 29 June 2006.[3]The requirement of the Respondent's procedure was to give five working days notice of the result of the appeal, and they did so, hand delivering the result of the appeal, which was in fact the dismissal of the appeal, at about 6pm on 6 July. There can be no criticism at all of the Respondent for doing so. They were complying with their own rules in accordance with a hearing which had originally been fixed for somewhat earlier but adjourned at the Appellant's request. Equally there is no criticism of the Appellant for the time passing so far as the internal appeal is concerned. The consequence of the chronology to which I have referred however is that in fact the time for lodging an application to the Employment Tribunal expired 6 hours after the hand delivery of the result of the appeal, namely at midnight on 6 July. That that is the case is clear from the well established authority of Post Office v Moore [1981] ICR 623. What followed, it seems, is that the Claimant had been relying on Mr Cole, the apparent solicitor, to handle his case for him and had assumed that there was an ET1 issued - the word ET1 having been referred to by Mr Cole in the addition that he had suggested be made to the letter sent on 22 April - but that, because he had left matters in the hands of Mr Cole, he was not himself running the legal proceedings, if such there had been, though in fact there were not. The only evidence we have as to what happened after 6 July is as to an unsuccessful meeting on 20 July, unsuccessful in the sense that the Appellant, his wife and a friend who had been acting for him on the internal appeal attended the house of Mr Cole, from which apparently he worked, and had a frustrating meeting on 20 July, at which Mr Cole arrived very late, and to which he contributed little.[4]The proceedings were eventually issued on 11 August 2006. The explanation was made as above on the hearing on 30 November 2006, and oral evidence was given both by the Claimant's wife and by the friend, Mr Steven Walsh, who had been helping them and who had been equally irritated by the lack of assistance from Mr Cole. The Tribunal recorded in paragraph 3.8:
"The Claimant's claim was presented to the Tribunal on 11 August 2006 by Solicitors, namely Cole & Associates, of Strood, Kent, who had been instructed on behalf of the Claimant on Friday 7 July 2006 and with whom the Claimant had an interview on 20 July."
[5]The Tribunal addressed the argument that the Appellant fell within the exception under s111 of the 1996 Act, to which I have referred, which would allow an extension of time. That is s111(2) namely:
"… 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."
The case consequently rested on reasonable practicability.[6]The rival submissions are set out by the Chairman at paragraph 4 of the judgment. The Respondent submitted that the claim was out of time under the 1996 Act:
"4.1 … because (1) by virtue of the definition of "normal time limit" in the Employment Act 2002 Dispute Resolution Regulations 2004 [the 2004 Regulations] there was no extension of a further period of three months to make a claim [I shall return to that] and (2) by virtue of the fact that the Claimant had taken advice from solicitors, it could not be suggested that it was not reasonably practicable to make the claim within time."
[7]The Claimant's submissions were recorded as follows:
"4.2 … it was unreasonable to expect the Claimant to present his claim by midnight on 6 July 2006 when the three months time limit expired, because he had only received notice of his appeal being unsuccessful at 6pm on that day, at a time when he would not have had access to his solicitor. He submitted that the claim was not out of time in the event and, if it was, it was not reasonably practicable for the Claimant to have presented his claim within time and further the Claimant being brought within a further time which was reasonable."
[8]Authorities were referred to by the parties, and others were in any event known to the Chairman because they were mentioned in some of those authorities. At paragraph 5.2 of the judgment the recent Employment Appeal Tribunal decision of J.O. Simms Limited v McKee (UKEAT/0518/05/CK) a judgment of Bean J, was referred to as summarising the relevant Court of Appeal decisions on "these statutory provisions where a Claimant has engaged solicitors". There was then a reference by the Chairman to the Court of Appeal decision of Marks and Spencer Plc v Williams-Ryan [2005] IRLR 562 the quotation from which referred to Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 and Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 117. Dedman and Palmer established the proposition that negligence or delay by an adviser was to be ascribed to the claimant ("the adviser point") and Palmer that the existence of an informal appeal did not extend the time for a claim to the Employment Tribunal ("the appeal point"). It does not appear that any other authorities were referred to. The Chairman set out a reference to Regulation 15 of the 2004 Regulations, to which I will return, and he pointed out at paragraph 5.5 that there was no discretion under the Regulations to consider a complaint made after the end of the primary limitation period.[9]His conclusions were set out very succinctly in the judgment and must be read obviously by reference to the submissions which had been set out at greater length. He deals first with the 2004 Regulations:
"6.1 The conclusion of the Tribunal is that the normal time limit defined in the Dispute Resolution Regulations 2004 is a period of three months… That normal time limit expired at midnight on 6 July 2006. Before the expiry of that normal time limit the Claimant, having received the appeal letter, could not have had a reasonable belief that any disciplinary proceedings were still ongoing. That time limit cannot be extended."
He then turns to the issue of reasonable practicability:
"6.2 The Tribunal therefore has to consider whether it was not reasonably practicable for the Claimant to present his claim within the normal time limit. On the basis of the authorities set out earlier in this judgment it is clear that it was reasonably practicable for the Claimant to present his claim within the time limit and in those circumstances the Tribunal has no jurisdiction to hear the Claimant's claim."
[10]It is apparent by that short hand reference to the authorities in paragraph 6.2 that the Tribunal was rejecting the Claimant's application on two bases: i. It could not in law be said to have been not reasonable practicable ("the impracticability case") to bring the claim within time simply by virtue of the fact that he was instructing a solicitor (who, I have no doubt from the reference to there having being oral evidence, was being roundly criticised for his delay by those who gave evidence, in a way which has been expanded before me in witness statements) by reference to the Dedman line of authorities, culminating in Marks and Spencer and Simms ii. The existence of the internal appeal did not itself amount to a justification on the basis of reasonable impracticability, by reference to Palmer . That is not expressly referred to anywhere in the judgment, but I shall assume it was implicit. I note that the specific reference to Palmer in the judgment was by reference to the adviser point and not to the appeal point, but I shall assume the latter was implicit in the thinking of the Chairman.[11]The appeal has been on two bases. First, so far as the 'adviser point' is concerned, leave has been sought to adduce fresh evidence falling, it is submitted, within Ladd v Marshall [1954] 1 WLR 1489 and the Employment Appeal Tribunal Practice Direction, to show that the Appellant has now discovered that Mr Cole was not in fact a solicitor, and a letter from the Law Society has been adduced to show that in fact he is not an admitted solicitor. That fresh evidence is only half-heartedly opposed by Ms Tether appearing before me for the Respondent, and very properly so, because she has been content that it should not be kept out but that I should have the opportunity of seeing it. Her main submission, apart from suggesting that it could have been obtained in time for the hearing on 30 November, is that it does not in fact make any difference to the case, a submission with which I sympathise. The new evidence is, as I have earlier indicated, that, contrary to the understanding of the parties and consequently of the Chairman of the Tribunal in paragraph 3.8 of his judgment, Mr Cole was not a solicitor. The evidence that has been adduced about Mr Cole may have been available before 30 November, but I am prepared to assume that it was only as a result of the impact of losing the application that this digging went on, and that it was not something which before the hearing it ought to have occurred to the Appellant to do. It is apparent that at that stage they thought that Mr Cole had been seriously negligent but that it did not occur to them at that stage that he was not a solicitor.[12]Mr Cole, however, albeit not a solicitor, was plainly involved in employment law. I say that for three reasons. First, the Chairman of the Tribunal points out that the addition that was suggested by Mr Cole, as it now seems on the evidence, to the letter of 22 April referred to an ET1, which is a phraseology which would only have been known to someone who had a familiarity with employment law; see paragraph 3.9 of the judgment. But more significant than that is that from the very frank evidence that has been put in, in support of the application to adduce the fresh evidence, it is clear that Mr Cole had advised the Appellant previously on employment matters, and consequently that this was not the first time that Mr Cole had at any rate hold himself out as expert in the field. Further, Mrs Ashcroft indicates that there were two other members of the School's ancillary staff who had sought advice of a similar kind from Mr Cole, believing that he was a solicitor. Mr Hodge submitted that the fact that it was now known that Mr Cole was not a solicitor made, as he put it, all the difference, and that, as he submitted, if it had been known by the Chairman of the Tribunal that he was not a solicitor he would not have made the findings that he did. Plainly he would not have made the finding he did in paragraph 3.8 that he was a solicitor: he would have said the reverse. But I have to be persuaded that the fact that he was not a solicitor makes now, and would have made then, any difference at all, and I am wholly satisfied that it did not or would not have done.[13]The line of authority is not dependent on the advice being given by a solicitor. It happens that in Dedman the advice was by a solicitor, and that Lord Denning MR referred, at 61F, to the solicitor in question as a "skilled adviser". But it is quite plain that the principle which lies behind the Dedman line of authorities is not dependent on the adviser in question being a solicitor, indeed it is not even dependent on his being skilled, see Riley v Tesco Stores Ltd [1981] IRLR 103 at paragraph 16-17, because in the event it is almost always likely to be the case that where an extension of time needs to be sought because of reliance on advice by an adviser, the advice may well turn out to have been wrong advice, and hence very often unskilled. Indeed one of the reasons for the line of authority has been given as being the proposition that the Claimant who is thereby denied relief can sue the adviser for lack of that very skill. However it is not simply that Lord Denning referred to the solicitor as being an adviser, such that it was by reference to the latter capacity in my judgment that he was reaching his decision, not by reference to his status as a solicitor, but this can be illustrated by other cases. In London International College Ltd v Sen [1993] IRLR 333 at paragraph 15 there is reference in Sir Thomas Bingham MR's judgment to "a solicitor or a trade union official or similar adviser". There is reference by Lord Denning in Dedman to a trade association as skilled advisers, and in two cases, one of them being Riley and the other being a recent decision of this Appeal Tribunal per Lady Smith in Royal Bank of Scotland Plc v Theobald (EAT/0444/06) [10 January 2007], to advice from a representative of the Citizens Advice Bureau. It is quite plain that that the authorities dealing with when it can be said to be not reasonably practicable to bring in the claim in time, where a Claimant was relying upon advice given by an adviser, are not limited to advice from a solicitor. It has only to be said that nowadays there is a positive plethora of employment consultants who are not solicitors but who plainly are, or at any rate hold themselves out, as skilled advisers in this field. The Appellant believed that Mr Cole was a solicitor. He held himself out as a solicitor, he did in fact practice in the employment field, he did in fact give advice in the employment field and in my judgment must be regarded as having been equivalent to an employment law consultant if, as now appears, he was simply an LLB but not a qualified solicitor.[14]The line of authority is well established. Lady Smith has suggested in the Theobald case that there may be a distinction between a situation in which a claimant hands over the handling of the proceedings in their entirety to such an adviser, such as in that case the claimant did to the Citizens Advice Bureau, where the 'impracticability case' would not be available, and to a situation where a claimant handles the case himself or herself, but on a one-off basis obtains advice from an adviser as to time limits or deadlines, which turns out to be wrong, in which Lady Smith suggests that it might be that the 'impracticability case' might be available. For my part, I find that a difficult distinction which may not be possible to pursue in practice, and may not be founded on logic or good authority, but even if it be available as an argument it would not avail this Appellant, who did hand over his proposed proceedings to be handled by Mr Cole. In those circumstances I am satisfied that even had the fact that he was not a solicitor been known to the Chairman of the Tribunal in this case there would have been no difference to the result. Accordingly the fresh evidence does not satisfy the second Ladd v Marshall test, and the ground must fail.[15]I turn to the second ground of appeal, which is by reference to the 2004 Regulations. Regulation 15(2) must be set in the context of the whole of the Regulations, which were intended to facilitate dispute resolution short of proceedings, indeed to place hurdles in the way of the bringing of most tribunal proceedings without grievance procedures having been followed. Regulation 15 addresses the alternative to a grievance procedure, namely an appeal procedure. It deals with the consequence in relation to the three month time limit (which of course is very much shorter then the time limits in the ordinary courts) otherwise applicable to a claim in the employment tribunal (s111 of the 1996 Act being the relevant provision in relation to unfair dismissal). Regulation 15(1) reads:
"15 (1) Where a complaint is presented to an Employment Tribunal under a jurisdiction listed in Schedule 3 or 4 [which includes unfair dismissal] and – (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply; the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired. (2) The circumstances refereed to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."
Applying that Regulation to the facts of this case, as the Chairman did in paragraph 6.1 of his decision, at the time, namely midnight on 6 July when the time limit expired, there was no pending appeal, because the decision in that appeal had been delivered by hand six hours earlier. There was therefore no extension under Regulation 15.[16]At the hearing of the Rule 3(10) application at this Employment Appeal Tribunal before Underhill J, the Judge suggested, but no more than suggested, that it might be that there ought to be some purposive construction of Regulation 15(2), to deal with what might otherwise be an unfair situation, such as could be said to have occurred here, namely if the result of the appeal came in, thus terminating the appeal, at such a late stage that it was then not possible to put in an application to the Tribunal in time; and that would most certainly occur if, for example, the result of the appeal was delivered at 11.30pm at night, with only half an hour to go. In this case there were 6 hours to go. He suggested that it might be possible to construe the words in the Regulation " was being followed " not as meaning "was at the time", but as relating to when there was , in the sense of "used to be" or "had been", an appeal pending, and thus that in some way there could be an extension in such a situation. Mr Hodge, albeit that it is in his Notice of Appeal and his skeleton, does not pursue or adopt that argument before me today. It seems to me that it was a helpful thought by an experienced Judge which on reflection is not supportable as a construction of the words " was being ", or indeed as any kind of method of achieving certainty for Regulation 15, because one would need to construe it as "had been but only very recently before had ceased to be", because otherwise this would apply to an appeal which was being brought, but had come to an end two and a half months earlier.[17]However, there is, Mr Hodge submits, a perfectly available way of resolving the unfairness which Underhill J saw might occur if there was what he saw to be a strict construction of Regulation 15(2). Mr Hodge submits that, given that there was only six hours to go once the appeal was hand-delivered, it was not reasonably practicable for his client to put the appeal in by midnight, and consequently he qualifies under s111(2) and the issue is and ought to have been before the Tribunal only whether the period of time that then followed until 11 August was or was not a reasonable time.[18]Miss Tether does not suggest that it would have been reasonably practicable to get the appeal in within the six hours between 6pm and midnight, and that is a realistic acceptance on her part. Her submission is rather that the question of reasonable practicability at that late stage does not arise , because consistent with the authorities, one needs to look at the entirety of the three month period, not just the last 6 hours, and that there was no reason why the notice of application could not have been got in before the date of expiry, and notwithstanding the pendency of the appeal. She refers to the well established line of authority which began as long ago as Palmer , that the pendency of an internal appeal did not justify not putting in a Notice of Appeal. The Court of Appeal in Palmer addressed rival dicta in the Employment Appeal Tribunal in Crown Agents v Lawal [1978] IRLR 542 per Kilner Brown J on the one hand that the pendency of an appeal should be a factor in the consideration as to a Notice of Appeal not being within the relevant time and in Bodha v Hants Area Health Authority [1982] ICR 200 per Browne-Wilkinson P to the contrary effect, and the issue was resolved by their preference for the latter proposition. The Court of Appeal bindingly concluded that a pending internal appeal should not have prevented the bringing of proceedings in the Employment Appeal Tribunal, and thus was not a relevant factor on the issue of reasonable practicability.[19]In two recent authorities a factual situation not very different from what is now before me was considered by the Employment Appeal Tribunal. One is Theobald , to which I have already referred, per Lady Smith, and the other is Wolverhampton University v Dr Elbeltagi (EAT/0167/07) in a judgment by Judge Burke QC of 13 July 2007. In both of those two cases the court had to address the fact that there was only a short period of time between the appeal result being delivered and the appeal therefore ceasing to be pending, and the expiry of the normal deadline, and in both cases the issues were addressed only by reference to the tail- end period prior to the three month period, and as to the question as to whether what had happened thereafter was or might be reasonable. Both judgments, being appeals from the Employment Tribunal, did not address at all Miss Tether's argument, namely that the pendency of the appeal should have been wholly ignored, or at best should have been examined. Both judgments went ahead on the assumption that the claimant was justified in not having brought his application to the Employment Tribunal while the internal appeal was still pending, and consequently on the face of it both judgments are inconsistent with the line of authority established by the Court of Appeal decision in Palmer .[20]I could of course say that I am, if not bound, certainly persuaded by two decisions of the Employment Appeal Tribunal, both of them recent, to look similarly at the facts before me, and, if I did so, it would be plain, as Miss Tether concedes, that it was not reasonably practicable to bring the claim within those last six hours, and we would be looking at the period between 6 July and 11 August. But she rightly submits that the point was not addressed in either of those two cases and consequently either went by way of assumption or was simply not considered at all, because the issue had not been considered at the employment tribunal or, if considered, was not appealed. So I do address this now as a fresh point. I am entirely persuaded that the 2004 Regulations created a new scenario, such as to overtake the established position since Palmer . Not only was the whole purpose of the legislation to encourage dispute resolution, and such as to discourage rushing to issue proceedings, and indeed in the case of grievance procedures to place an absolute hurdle in the way of issuing proceedings, but if it was intended that Palmer continue to be binding, there would have been no point in Regulation 15 at all. Regulation 15 answers the question, 'What if an internal appeal is going forward and the result is not received until after the 3 months?' The answer would have been, but for an intended change of the law, "No problem, you issue your proceedings before the conclusion of the internal appeal", that is what Palmer said. In that case there would have been no need for Regulation 15(2). Regulation 15(2) appears to me to be plainly predicated upon the assumption that there will not be an application put in to the employment tribunal prior to the expiry of the appeal period. That was its purpose and that is in my judgment its effect.[21]In those circumstances I am satisfied that although the law was not considered in either case, the result in both Theobald and Wolverhampton University was correct, and that the position here should be that the Tribunal ought to have concluded that it was not reasonably practicable for the Appellant to have brought his proceedings before the expiry of the statutory period at midnight on 6 July, by virtue of the fact that until 6pm he had the anticipated protection of Regulation 15(2), and the express encouragement of the legislation not to bring proceedings pending the outcome of the internal appeal, and that it was not then possible, as Miss Tether accepts, for an application to be put in, in those last six hours. Miss Tether submitted that there might be some halfway house in which it would be concluded that Palmer is no longer prescriptive, but that it still ought to be considered as to whether there could have been a notice of application put in, notwithstanding the pendency of an internal appeal. I am satisfied that the legislation did not have that intention. The legislation is intended to encourage and facilitate a claimant not to issue proceedings. Thus this Appellant, albeit no doubt because of the very absence of advice he may well have not been relying on the legislation, and those in his position, are entitled not to do so. I am satisfied therefore that Regulation 15 effectively repealed Palmer .[22]I therefore allow the appeal, and remit the matter back to the Employment Tribunal to decide whether there should be a further extension after 6 July within s111(2). I have helpfully had some assistance from both counsel, as requested prior to the hearing, as to the relevant authorities on the issue which will now face the Employment Tribunal, namely "within such period as the tribunal considers reasonable". I have been referred to Marley (UK) Ltd v Anderson [1994] IRLR 152, Biggs v Somerset County Council [1996] IRLR 203 and Whitbread Plc v Reese (EAT/1292-1293/97) and those authorities make it plain that it is not the reasonable practicability test which is to be applied, but a broad one taking account all of the circumstances. That is the task which the Tribunal will now carry out. It seems sensible that this should be carried out by a different Chairman, but I do not specifically so indicate. It seems to me likely that in the ordinary course this will be allocated as a relatively short case now fairly old, and therefore to be dealt with as soon as possible on the basis of whatever rota is in existence at the time.