ASDA STORES LIMITED (RESPONDENTS) v MRS S KAUSER (CLAIMANT) [2007] UKEAT 0165_07_1510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0165_07_1510Case No Appeal No. UKEAT/0165/07/RNVenue 58 VICTORIA EMBANKMENT, LONDON, EC4Y ODS
Between
ASDA STORES LIMITED (RESPONDENTS)APPELLANTMRS S KAUSER (CLAIMANT)RESPONDENT
Before
Lady SmithDate 15 October 2007
[1]APPEARANCES For the Appellant Ms S Robertson (of Counsel) Instructed by: Cloisters 1 Pump Court Temple London EC4Y 7AA The Respondent debarred from proceedings SUMMARY Practice and Procedure – 2002 Act and pre-action requirements The Tribunal had found that it was not reasonably practicable for the Claimant to present her claim timeously in circumstances where she knew she could claim but thought that she had to wait until police enquiries were complete before she did so and was very stressed while those enquiries were outstanding. After those enquiries were complete, there were three dates on which she could have presented her claim and no findings in fact indicative of it not being reasonably practicable for her to have done so. The employers appealed, successfully. THE HONOURABLE LADY SMITH Introduction This is an appeal from the judgment of an Employment Tribunal sitting at Leeds, Chairman Mr D R Sneath TD, DL, sitting alone, in which he held it was not reasonably practicable for the Claimant's complaint to have been presented to the Tribunal before the end of the requisite three month period and that it was presented within a reasonable time thereafter.[2]Before the Tribunal, the Appellants, who were Respondents in the claim, were represented by Miss Maslen, Solicitor and by Ms Robertson of Counsel before me. The Respondent, who is the Claimant, represented herself before the Tribunal. She did not lodge a timeous response to the appeal and was debarred from taking part in it, by order dated 30 July 2007. I will, for the sake of clarity, refer to parties as Claimant and Respondents. Background[3]The Claimant, who is aged 21 years, had been employed by the Respondents as a checkout operator and was summarily dismissed on 22 June 2006. The Respondents believed that the Claimant had been stealing from their tills. The three month limitation period ended, accordingly, on 21 September 2006. The Claimant's claim was presented to the Employment Tribunal later than that, on 11 October 2006.[4]Following the Claimant's dismissal, she was arrested by the police. She was released on bail. On 30 July 2006, she was interviewed again and again released on bail. She was to return on 19 September 2006. She did so and on that date, the police told her that they had insufficient evidence to proceed with a charge of theft and no criminal proceedings would, therefore, be taken.[5]The Tribunal finds:
"6. Not surprisingly, the period from 22 June to 19 September was very stressful for the Claimant and her family. Her mother had attended today's hearing. Nevertheless, the Claimant believed from the time of her dismissal that she had been unfairly dismissed. She did not bring proceedings before 19 September because she did not think she was able to do so, given the ongoing Police inquiry. She saw the matter as being in the hands of the Police at that time. 7. Once released, as it were, from that Police inquiry, the Claimant set about bringing these proceedings. She contacted her local Citizens Advice Bureau, but only to obtain the number of the Employment Tribunal Office so that she could obtain a claim form. She probably had that conversation on 25 September, having to wait a few days in order to get an appointment to talk to someone."
[6]Later, at paragraph 13, the Tribunal adds:
"The Claimant whilst aware of her right to bring this claim, and indeed motivated to do so by a sense of injustice, genuinely felt hidebound by the ongoing Police inquiry."
[7]The Claimant then contacted the Employment Tribunal office and was sent a claim form. The Tribunal was unable to make any finding as to when she did so but found that the claim form was signed on 7 October 2006. The Claimant did not send the form in until 10 October. The explanation for that was, apparently, that she had a member of her family check the form first. The Tribunal's Judgment[8]The Tribunal reached the decision that it did on the basis, firstly, that the Claimant was ignorant of the three month time limit throughout that period and then secondly, by asking itself whether that ignorance was reasonably sustained throughout that period. It found that the Claimant's ignorance was reasonably sustained because of the distress of being arrested and that: ".she must have been in some turmoil during the period of the Police investigation." (para 11)[9]It then found that once the "impediment" (para 11) of the police investigation was lifted, the Claimant set about bringing her claim with reasonable expedition.[10]The Tribunal referred to several authorities: Norgeit Luton Industrial Co-operative Society Ltd [1976] IRLR 306, Walls Meat Co Ltd v Khan [1978] IRLR 499 and Marks and Spencer plc v Williams- Ryan [2005] IRLR 563. It also evidently proceeded on the basis that:
" ……section 111(2) should be given a liberal interpretation in favour of the employee."
Relevant Law[11]The relevant statutory provision is at section 111(2) of the Employment Rights Act 1996:
"…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."
[12]An Employment Tribunal is not vested with the power to allow a claim to proceed though late whenever it considers it "just and equitable" to do so ( cf . Sex Discrimination Act 1975 section 76(5); paragraph 3(2) to the Disability Discrimination Act 1975 , Race Relations Act 1976 section 68(8), and Prescription and Limitation (Scotland) Act section 19A). The power to disapply the statutory time limit is, as was commented by

Judge LJ in the case of London Underground Ltd v Noel [1999] ICR 109 at p.117:

"…very restricted. In particular, it is not to be exercised, for example, 'in all the circumstances,' nor even when it is 'just and reasonable' nor even where the Tribunal 'considers that there is good reason' for doing so. As Browne–Wilkinson J observed: 'The statutory test remains one of practicability ……..The statutory test is not satisfied just because it was reasonable not to do what could be done:' Bodha (Vishnudut) v Hampshire Area Health Authority [1982] ICR 200, 204. "
[13]Waller LJ, also in the London Underground case, emphasised that it is not just a question of considering what was reasonable but of considering what was reasonably practicable. At page 118, he said:
"…if this appeal must be allowed, it is hard on the employee. She, it seems to me, acted reasonably in not bringing her proceedings until after the offer of a new job was withdrawn. But the test is whether it was reasonably practicable for her to do so…". and he goes on to refer to and rely on what was said by Brandon LJ, in the case of Wall's Meat Co. Ltd. v Khan [1979] ICR 52, at pp. 60–61: "
The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."[14]At page 119, Waller LJ also said:
"The authorities which have applied the 'mental impediment' concept support the view that the essential matter or matters about which the complainant must be mistaken or ignorant must relate to the right bring a claim…."
[15]That was in the context of the "impediment" relied on in that case being that the Claimant did not know during the three month period whether her claim was one that was worth bringing in financial terms.[16]The case of Palmer v Southend–on–Sea Borough Council [1984] ICR 372 , was also referred to in the London Underground case, by Peter Gibson LJ. At page 114, he referred to it as being a distillation of the earlier authorities and quoted the well known passage in which May LJ refers to thinking that the words "reasonably practicable" meaning more than what is "reasonably capable physically of being done" (pages 384-5) and said:
"Perhaps to read the word 'practicable'as the equivalent of 'feasible' as Sir John Brightman did in Singh v Post Office [1973 ] ICR 437 and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the industrial Tribunal within the relevant three months?' – is the best approach to the correct application of the relevant subsection."
[17]The other "perhaps" that comes to mind is that it is perhaps difficult to discern how "reasonably feasible" adds anything to "reasonably practicable" since the word "practicable" means possible and possible is a synonym for feasible. The short point seems to be that the Court has been astute to underline the need to be aware that the relevant test is not simply a matter of looking at what was possible but asking whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.[18]It also requires to borne in mind that the onus of establishing that it was not reasonably practicable to commence proceedings within the time limit lies on the Claimant ( Porter v Baindridge Ltd [1978] ICR 372)[19]These were the principles that the Tribunal required to bear in mind when addressing the issues, which were:(1) had the Claimant established that it was not reasonably practicable for her to present her complaint timeously?(2) if so, was the claim presented within a reasonable period thereafter?[20]As regards this Tribunal, bearing in mind the limitations of its jurisdiction, it is for me to consider whether, as a matter of law the Tribunal erred when it concluded that the facts which it found established were sufficient to entitle it to say, as it did, that it was not reasonably practicable for the Claimant to have presented her claim timeously. Were those facts capable of justifying that conclusion? The Appeal[21]For the Respondents, Ms Robertson submitted that the Tribunal had misdirected itself on the test for reasonable practicability. To be able to present a claim any Claimant needs to know that she has a claim, needs to get information on how to make a claim, needs to get a claim form and needs to lodge the claim. This Claimant knew of her right to make a claim as from the time of dismissal and the Tribunal's conclusion that she must have been "in some turmoil" whilst the police investigation was outstanding was inadequate as an explanation for not inquiring about how to make a claim earlier. This was not a case where the Claimant did not know she had a claim. She knew that. Her ignorance was of time limits but that was a different matter. For the "mental impediment" approach to be relevant, it required to be ignorance relating to the right to bring the claim which could be distinguished from time limits. It was a matter of reasonableness and not practicability. Whilst the decision as to whether or not it was reasonably practicable to present the claim in time was essentially one of fact, it required to be recognised that it was a type of fact that was in a distinct class since it was a matter of inference from primary fact. In support of these parts of her submissions, Ms Robertson referred to Palmer v Southend-on-Sea Borough Council , Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 , London Underground v Noel, and Porter v Baindbridge .[22]Ms Robertson also founded on the fact that the Tribunal had failed to address what was reasonably feasible during the last three days of the three month period. Any belief on the part of the Claimant that she could not commence a claim while the police enquiries were outstanding was irrelevant when addressing the feasibility of enquiries being made so as to be ready to present a claim once the police inquiry was complete. Discussion and Decision[23]Bearing in mind the relevant law, the facts found by the Tribunal to which it required to have regard when considering whether or not the Claimant had established that it was not reasonably practicable for her to have commenced proceedings within the three month period were: - the Claimant was dismissed on 22 June 2006 the three month period therefore expired on 21 September 2006 throughout the three month period, the Claimant believed she had been unfairly dismissed throughout the three month period, she had a sense of injustice about having been dismissed throughout the three month period, she did not believe there was any evidence against her to show she was guilty of theft throughout the three month period, she knew she had the right to claim for unfair dismissal she knew, inferentially, throughout that period (since she was able to contact them once the police involvement was at an end), that she could get help from the Citizens Advice Bureau she knew, again inferentially throughout, that any claim for unfair dismissal required to be made to the Employment Tribunal she knew, again inferentially throughout, that her claim needed to be on a particular form and the relevant form could be obtained from the Employment Tribunal the period 22 June 2006 to 19 September 2006 was very stressful for her on 19 September she was told by the police that there was insufficient evidence against her and they would not be taking matters any further the Claimant thought, throughout the period 22 June 2006 to 19 September 2006, that she could not commence proceedings whilst the police investigation was outstanding. That was not a belief that was attributable to anything anyone had told her; the findings are indicative of it being assumption on her part the Claimant obtained a form ET1 on some date prior to the claim being presented on 11 October 2006. On the findings of fact, it could have been prior to 21 September 2006 that the form was obtained, it could have been after that. The evidence was not, it seems, sufficiently precise on that matter for the Tribunal to find exactly when it was that the Claimant got the form the Claimant signed the form on 7 October 2006 the Claimant sent the form to the Tribunal on 10 October 2006 the form arrived and was therefore presented, on 11 October 2006.[24]The Tribunal found that there was an "impediment" present until 19 September. There appear to have been two aspects to that finding. One was that the Claimant was very stressed. The other was that she thought she could not commence proceedings during that period. They approached matters, accordingly, on the basis that this was a "mental impediment" case. That required the Tribunal, however, to consider whether it was reasonable to have expected the Claimant to have made inquiries prior to 19 September about bringing a claim in circumstances where she knew she had a right to claim and firmly believed that she had been unfairly dismissed. Had she done so via one or both of the two channels of relevant communication of which she was aware, the Citizens Advice Bureau and/or the Employment Tribunal, she could have got the form earlier, completed it and had it, as Ms Robertson said, "ready to go" once police matters were out of the way. Had she done so, it is to be inferred that she would have been advised about time limits. It was plainly practicable, possible or feasible for her to make the inquiries. Had she established that it was not reasonable for her to do so? The Tribunal appears to have relied, for that part of their considerations on her ignorance of time limits and her being very stressed; whilst I note that the Tribunal takes the view that the Claimant "must have been in some turmoil", the finding in fact is as I have stated it. The former does not, however, answer the question of why she did nothing at all. The latter is very general. There is no finding of illness or incapacity. The circumstances are not comparable, for instance, to those of the Claimant who fell ill seven weeks into the three month period, in the case of Schulz v Esso Petroleum Co Ltd [1999] ICR 1202 . It cannot be sufficient for a Claimant to elide the statutory time limit that he or she points to having been "stressed" or even "very stressed". There would need to be more. I am, accordingly, persuaded that Ms Robertson was correct in her submission that the Tribunal misdirected itself when answering the question of whether or not the Claimant had established that it was not reasonably practicable for her to have presented the claim timeously. I would add that I agree that looking at matters from the perspective of an appellate body, it is significant to remember that whilst it should be slow to interfere with a Tribunal's decision on fact (the question of reasonable practicability being essentially a factual one), legitimate interference may more readily arise where the factual assessment subjected to scrutiny is a matter of inference, particularly when it is for the purpose of deciding whether a statutory test is met.[25]Moreover, neither the erroneous belief or the stress relied on had any relevance once the possibility of prosecution flew off on 19 September 2006. As was commented in Schulz , by Potter LJ at page 1210:
"….in assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way focus upon the closing rather than the early stages."
[26]The Tribunal has, however, paid no attention at all to the closing stages of this limitation period on and after 19 September 2006, during which the Claimant, upon whom the onus lay, did not offer any case that it was not reasonably practicable for her to have presented the claim. What, rather, the Tribunal seems to have done, notwithstanding its reference to the claim being presented within 20 days (the period between 21 September and 11 October) is to have in fact rolled up the days from 19-21 September into the period that it was considering for the purpose of the issue of whether the claim was presented within a reasonable time after the expiry of the three month period (section 111(2)(b)). It has certainly not addressed the question of whether it was reasonably practicable to present the claim on 19, 20, or 21 September. Had it done so, on the findings in fact made, it seems plain that it would have had to conclude that it was reasonably practicable for her to have done so.[27]For foregoing reasons, I am satisfied that the Tribunal erred in deciding as it did. The facts found were not sufficient to entitle it to conclude that it was not reasonably practicable for the Claimant to present her claim within the requisite three month period.[28]I will, accordingly, pronounce an order upholding the appeal and dismissing the claim.