WOLVERHAMPTON UNIVERSITY v DR I ELBELTAGI [2007] UKEAT 0167_07_1307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0167_07_1307Case No Appeal No. UKEAT/0167/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WOLVERHAMPTON UNIVERSITYAPPELLANTDR I ELBELTAGIRESPONDENT
Before
His Honour Judge BurkeDate 13 July 2007
[1]APPEARANCES For the Appellant Mr E WILLIAMS (of Counsel) Instructed by: Messrs Martineau Johnson Solicitors No. 1 Colmore Square Birmingham B4 6AA For the Respondent Mr S PERHAR (Of Counsel) Instructed by: Messrs ADW Solicitors Grosvenor House 98 London Road Leicester LE2 0QS SUMMARY Time Limits – Effective date of termination Time Limits - Reasonable practicability The Tribunal found that the employee had demonstrated that it was not reasonably practicable for him to present his claim for unfair dismissal in the three month period because his appeal was still proceeding and there were ongoing negotiations about a consensual 'resignation'; but these processes ended on 7 October and the period elapsed on 10 October. Held that the Tribunal erred in not considering separately the period from 7 October to 10 October in light of the changed circumstances. See The Royal Bank of Scotland Plc v Theobald (EAT/0444/06 10 January 2007). Remitted to same tribunal to consider that period. HIS HONOUR JUDGE BURKE QC Preliminaries In this appeal, the Respondent before the Employment Tribunal, Wolverhampton University, challenges the decision reached at a pre-hearing review by the Tribunal, sitting at Birmingham in the person of Mr Parkin as Chairman alone and sent to the parties with full reasons on 2 February 2007, that, although the Claimant, Dr Elbeltagi, had presented his unfair dismissal claim outside the primary three month time limit, it was not reasonably practicable for him to have presented it in time and he had presented it within a reasonable further period.[2]Before turning to the arguments in support of and against the appeal, I need to refer briefly to the history of this case in the Employment Appeal Tribunal ("EAT"). On 23 March 2007, at the sift stage of the EAT's procedures, HHJ Birtles ordered that the appeal be set down for a preliminary hearing and gave Dr Elbeltagi the opportunity to (but did not say that he must) put in written submissions for consideration at that hearing. Dr Elbeltagi did not put in written submissions for consideration at that preliminary hearing; but he did attend it; and at that hearing on 12 June 2007 HHJ Clark allowed the appeal to go through to a full hearing.[3]The order then made, at paragraph 4, required Dr Elbeltagi to file an answer within ten days of the seal date of the order, that is to say by 23 June. The order was sent to him on 13 June; but he did not put in an answer. A chasing letter was sent on 26 June; but there was still no reaction. Accordingly, on 4 July, the Registrar made an order that, unless an answer was lodged by 11 July together with an application for an extension of time in which to do so, Dr Elbeltagi would be debarred from taking any further part in the appeal.[4]Although, no doubt, the Registrar when she made her order of 4 July did not know this, on that very same day the EAT received a Skeleton Argument on behalf of Dr Elbeltagi signed by Counsel, Mr Perhar, who has appeared on his behalf today, and what is described as a "Response to Grounds of Appeal" which, in respect of each of the three grounds of appeal in the Notice of Appeal, sets out very brief reasons why the Tribunal was right and the criticisms made in the Notice of Appeal were said to be unfounded. That document bears the same date as Mr Perhar's Skeleton Argument. The document was not in form 3 as is required by rule 6(2) of the EAT rules; and it was of course out of time. It ought, therefore, to have been accompanied by an application for extension of time within rule 37(3); it was not, although one was made subsequently.[5]The Appellant's solicitors objected to the late presentation of the Response and to the application to extend time; but today Mr Williams on behalf of the Appellant, with appropriate professional candour, has accepted that no prejudice has been caused to the Appellant. Dr Elbeltagi is here with Counsel to represent him; and I concluded at the start of this appeal and indicated to the parties that, in the circumstances, his Response should be allowed out of time to stand as his answer and he should be regarded as not being prevented from resisting the appeal, as if his answer had been in time. The History[6]Dr Elbeltagi was employed as a senior lecturer at the Appellant University from September 2004. On 7 July 2006, he was found by a disciplinary panel, chaired by the Dean of the University Business School, Professor Wilson, to have been guilty of plagiarism amounting to gross misconduct; and, as a result, as the tribunal found, on 11 July Professor Wilson sent an e-mail to Dr Elbeltagi expressly notifying him of his immediate summary dismissal. That Dr Elbeltagi received that e-mail was found to have been established by the fact that he responded to it later that evening. Thus it might have been thought, on those facts standing alone, that Dr Elbeltagi's contract of employment terminated on 11 July, in which case his claim form, presented on 12 October, was presented two days late.[7]However, those facts did not stand alone. Dr Elbeltagi appealed against his dismissal as, of course, he was entitled to do. Because of the University vacation, an appeal committee of the governing board of the University did not meet until 26 September. After the appeal hearing itself had concluded but before the result was announced there were communications between the University and Dr Elbeltagi about the possibility that, if Dr Elbeltagi resigned, his resignation could be accepted. No doubt, if those communications had come to fruition, by consent his contract would have been extended to the date on which his resignation was accepted; and there would, in those circumstances, have been no dismissal (unless perhaps it were subsequently to have been argued by Dr Elbeltagi or on his behalf that such a resignation was not a true and voluntary resignation.) In the event, the negotiations broke down. Dr Elbeltagi signed a resignation letter on 26 September; but it was not accepted; and on 5 October the University wrote to Dr Elbeltagi telling him of the result of the appeal, namely that the decision to dismiss was upheld. That letter was received by Dr Elbeltagi on 7 October. At some time between 10 and 12 October, Dr Elbeltagi received advice from a solicitor who had previously helped him with his appeal. He was advised to present his claim at once; and he did so on 12 October.[8]The tribunal found that there was nothing which physically prevented Dr Elbeltagi from presenting his claim earlier but that he did not know of the three month time limit until shortly before he presented his claim, although the tribunal did not find precisely when it was that he discovered the time limit. As I have said, he presented that claim on 12 October, two days late. It should have been presented within the primary time limit by midnight on 10 October.[9]The pre-hearing review was held to decide upon the University's contention, which arose in the circumstances I have described, that the claim form was out of time and that therefore there was no jurisdiction to hear the unfair dismissal claim. The Tribunal's Decision[10]The Chairman, in paragraph 2 of his judgement, identified five issues which had to be resolved. They were: 1) What was the effective date of termination of the Claimant's employment? 2) Was there a three month extension to the primary three month time employment under the Employment Act 2002 Dispute Resolution Regulations 2004? 3) Was the claim presented in time and if not; 4) Was it reasonably practicable for the Claimant to present it in time and if not; 5) Was it brought within a reasonable further period? Having found the facts which I have summarised above, the Chairman reached the following conclusions: 1) The effective date of termination for Dr Elbeltagi's date of employment was 11 July 2006. 2) There was no statutory three month extension to the primary time limit set out in section 111(2) of the Employment Rights Act 1996, pursuant to paragraph 15 of the Employment Act 2002 Dispute Resolution Regulations 2004 because, when the primary time limit expired on 10 October, Dr Elbeltagi did not then have reasonable grounds for believing that a dismissal or disciplinary procedure was being followed; for it had been completed on 7 October. Therefore the circumstances set out in regulation 15(2) did not apply and such circumstances had to apply by virtue of regulation 15(1)(a) if there was to be a statutory extension of time. 3) Therefore the claim was presented out of time two days late (see paragraph 6). 4) It was not reasonably practicable for Dr Elbeltagi to have presented his claim in time (paragraphs 7 to 8). 5) It was accepted that, on the basis of the above findings, by presenting his claim two days late, Dr Elbeltagi had done so within a reasonable further period. Accordingly, on those findings the tribunal concluded that there was jurisdiction to hear Dr Elbeltagi's claim. The Grounds of Appeal Discussion[11]Only one of those five conclusions is attacked by this appeal, namely the fourth, that it was not reasonably practicable for Dr Elbeltagi to have presented his claim in time. There is no cross-appeal against any of the first three conclusions. I have heard submissions today from Mr Williams of Counsel on behalf of the university and from Mr Perhar of Counsel on behalf of Dr Elbeltagi. I am grateful to both of them for their concise arguments.[12]I have only heard their arguments on the first of the three grounds of appeal. I need to explain why that is so. The Notice of Appeal advances three bases of attack upon the tribunal's conclusion, namely: 1) The tribunal made no finding as to why Dr Elbeltagi, in terms of reasonable practicability, could not have presented his claim between 7 October and 10 October. The tribunal simply failed to deal with that period separately from the period which had preceded it while Dr Elbeltagi's appeal and the negotiations were proceeding. 2) The tribunal erred in law in considering, when making its decision as to reasonable practicability, what it described as the spirit behind the 2004 Dispute Resolution provisions; 3) The tribunal erred in law in giving section 111(2) of the 1996 Act a liberal interpretation in favour of the employee. It became clear during the course of Mr Williams' submissions on ground 1 that the University are primarily concerned in this appeal with ground 1 and were concerned, so far as grounds 2 and 3 are concerned, not with seeking to upset the tribunal's decision as to the period up to 7 October but with obtaining guidance as to how, if this case were remitted to the tribunal, the tribunal should approach the decision that would thus be sent back to them. I offered Mr Williams the opportunity of choosing whether, if I were to be with the University to the extent that I concluded that a mistake of law as asserted in the first ground had indeed been made but took the view that I could not substitute my own decision as to the days between 7 and 10 October (inclusive) and must remit the issue as to those days to the tribunal, the University wished to continue with grounds 2 and 3. I have taken no steps to discourage the University from doing so; but Mr Williams has decided that he does not want, in the circumstances of my indication in relation to ground 1, to pursue grounds 2 and 3; and accordingly I have heard no submissions from him or from Mr Perhar on grounds 2 and 3 and will say no more about them.[13]I therefore, from this point on, refer only to ground 1; and I do so on the basis that it is not in dispute that the claim was presented outside the three month time limit and that that position could not be rescued by reliance on any statutory extension.[14]Mr Williams' submission can be briefly described; but it is necessary, before I do so, to set out paragraphs 7 and 8 of the tribunal's decision which are as follows: 7. Turning to the reasonable practicability, it is settled law in accordance with the authorities that the fact of an internal appeal being ongoing or having been commenced in itself just as the fact of negligent advice and many other factors do not necessarily in themselves make it not reasonably practicable for a claim to be presented. Reasonable practicability is ultimately a question of fact for the tribunal. This Claimant knew of his right to claim unfair dismissal and spoke of it at his appeal hearing but, in common with his trade union representative fully understood after the informal discussion Mr Lee at the end of that appeal hearing that, if he submitted a letter of resignation, his resignation would be accepted by the Respondent and the Respondent would overturn or negate the original dismissal. Had that been the outcome of the appeal, the legal effect would have been that the Claimant would have had nothing to found an unfair dismissal claim upon, a different situation from London Underground Ltd v Noel where the employers on an appeal were only offering re-employment in a different job. That there had been an informal agreement to accept his resignation (and, by implication, nullify the earlier dismissal) reached is fully corroborated by Claimant's handwritten letter of resignation and by his union representative at document C2; it was not substantially disputed by Mr Lee in oral evidence. Adopting the colloquial expression of the Respondent's representative – if the Claimant had his "eye on the ball" of an unfair dismissal claim at the time of the appeal hearing on 28 September, he certainly took his eye off that ball as a formal letter of outcome of appeal on 7 October 2006, upholding the dismissal; he was plainly not expecting this but expecting his dismissal to be formally overturned since his resignation had been accepted. 8. There is no principle of law that the impact of an appeal or fact that the outcome has only been recently disclosed can never be relevant to the tribunal's determination of whether it was reasonably practicable to bring a claim in time. Each case will turn on its own facts. Here, the tribunal had regard to the spirit behind the October 2004 Dispute Resolution provision: for parties to resolve employment issues internally rather than through the mechanism of the tribunal's jurisdiction, where possible. Following the guidance of the Court of Appeal in Marks and Spencer (itself adopting what was first enunciated in Dedman v British Building And Engineering Appliances in 1973), Section 111(2) should be given a liberal interpretation in favour of the employee. Where the Claimant did not have English as his first language and who received only limited and late advice about unfair dismissal time limits had been "lulled into a false sense of security" by the informal discussions following the appeal hearing, the tribunal concluded that it was not reasonably practicable for him to present his claim in time. Mr Williams submits that, although up to 7 October(i) the appeal was proceeding and the outcome of the appeal was not known, and;(ii) Dr Elbeltagi was expecting that the dispute between the University and himself might be resolved by a resignation, as I have described above, from 7 October onwards the position changed. If and insofar as the tribunal has based its conclusion on reasonable practicability on the continuing appeal process and what I can describe, (using shorthand) as the resignation process, as the tribunal appears to have done, neither of those processes continued beyond 7 October and could not be relied upon by Dr Elbeltagi in support of his case that it was not reasonably practicable for him to present his claim thereafter and by 10 October. 7 October was a Saturday. Even disregarding the possibility of presenting the claim electronically over the weekend, the whole of Monday 9 and Tuesday 10 October was available before time ran out. But, Mr Williams submitted, the tribunal gave no separate consideration to that period and appears to have treated the facts as though the effect of the appeal process and resignation process continued up to 10 October.[15]Mr Williams has referred me to Porter v Bandridge Ltd [1978] ICR 943 in which Waller LJ said, at paragraph 12, in relation to the time which passed between dismissal and presentation of the claim:
"He ('the Claimant') has to satisfy the tribunal that he did not know of his rights during the whole period…"
He relies, in addition, on the recent decision of the EAT, in the person of Lady Smith sitting alone, in Royal Bank of Scotland v Theobald [2007] UKEAT 0444/06, judgment handed down 10 January 2007. In that case the employee was dismissed for misconduct on 11 November 2005. He did not present his claim to the tribunal until 23 February 2006. The last day for presentation, to comply with the primary time limit, was 10 February 2006. The employee said that he had been advised by the Citizens Advice Bureau (CAB) not to present his claim until he had completed the employer's internal procedures. He received the decision that his final appeal had failed on 9 February. He downloaded a claim form from the internet that day; but he did not send it off, completed, for a further 11 days. The tribunal found that it was not reasonably practicable for that claim to have been presented within the primary time limit and that it had been presented within a reasonable time thereafter. The appeal involved substantial examination of the extent to which an employee can rely on advice from the CAB; the EAT concluded that, up to the point at which the employee learnt of the failure of his final appeal, it was open to the tribunal to conclude on the facts that it had not been reasonably practicable for him to present his claim. However, having so held at paragraph 33, the EAT continued at paragraph 34 as follows:
"However, the tribunal went further in that it found that it was not reasonably practicable for the claim to have been presented within the whole time limit. That is, it also, in effect, found that it was not reasonably practicable for the claim to have been presented between the time that the Claimant received notification of the outcome of his appeal, on 9 February, and the expiry of the time limit, namely midnight on 10 February. The outstanding appeal/CAB point being exhausted by the time that the Claimant had learnt of the outcome of his appeal, that means that the factors relied on by the tribunal as indicating that it was not reasonably practicable to present the claim between 9 and 10 February were the existence of the 2004 regulations and the 'dicta' indicating the s.111(2) should be construed with liberality. I cannot, however, see that the 2004 regulations are of any relevance at all. Difficulties have certainly been experienced in their interpretation and application but that was quite beside the point in this case. Parties were agreed (correctly) that they did not apply so as to entitle the Claimant to an extension of time in circumstances of the present case. There is no finding that he refrained from presenting his claim timeously because he thought that they did. There is no finding of he, the CAB, or anyone else having been influenced in any way by the fact or content of the 2004 regulations."
[16]At paragraph 35 in its judgment Theobald, the EAT considered the issue of liberality of interpretation of the relevant words in s111(2). I do not intend to spend time on that issue at this stage, that issue having been raised by ground 3 of the Notice of Appeal but not argued before me. Suffice it to say that, at paragraph 36, the EAT reinforced the formula, used first in the case of Palmer and Saunders v Southend-on-sea Borough Council [1984] IRLR 119, that a useful way of approaching s111(2) and what is called the 'escape clause' in it is to ask oneself, 'was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?'.[17]The EAT then continued as follows in paragraphs 35 to 38:- That leaves the matter of liberality of interpretation. The source of the assertion that the statutory provision should be given a liberal interpretation seems to be the case of Dedman but it was, as I have indicated, made in the context of stricter statutory terminology than now applies. I recognise that in the Marks and Spencer case, the Master of the Rolls, at paragraph 20, indicated that notwithstanding that, when the provision was changed to its present terminology, this tribunal held that the same approach to construction should be adopted. He made that comment under reference to the Palmer and Saunders case. However, that does not seem to have been the approach adopted in that case by the Court of Appeal. Whilst at paragraph 15 , there is the following passage:
"…if the relevant section is so construed it is a strict limitation provision and a number of reported cases have been ones where it is well arguable that to apply the section in its full strictness would be likely to produce clear injustice."
In the following paragraph, they also state:
"Nevertheless there is the contrary argument, in which we think there is considerable force , that it is desirable to decide these disputes between employers and employees as quickly as possible after the dismissal and to remember that Industrial Tribunals have always been intended to be domestic informal Tribunals. To achieve such a reasonably prompt and informal turnover, Parliament may well have considered it necessary to have a relatively short limitation period which will apply in the majority of these cases."
Thereafter, at paragraph 24, it is commented:
"The majority view in Dedman's ….. case, therefore, was that the relevant phrase should not be construed in its strict literal sense, but liberally or flexibly. Respectfully, however, whilst this approach is easy to state, we do not think that it is at all easy to apply in practice."
And, dealing specifically with the impact of the statutory use of the expression "reasonably practicable", at paragraph 34, they state:
"….we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done."
They continue and suggest that "practicable" should be read as the equivalent of "feasible" and the question should be asked:
"was it reasonably feasible to present the claim to the Industrial Tribunal within the relevant three months?"
In these circumstances, it does not seem to me that the tribunal was entitled to afford weight, in its decision on reasonable practicability in the present case, to the fact that there were, in the past, some dicta to the effect that a liberal construction should be afforded. To look at matters another way, the tribunal required to ask itself whether it would have been reasonably practicable or feasible for the Claimant to have presented his claim between 9 and 10 February. It did not do so and for that reason alone, I am satisfied that it erred in law. I would, though, go further. In the whole circumstances, it seems plain to me that it would have been reasonably practicable for the Claimant to have presented his claim in time. It was possible or feasible for him to do so and, in the absence of any findings in fact that point to it being unreasonable to have expected him to take action within the remainder of the available time limit, the conclusion that it would have been reasonable for him to do so is inevitable.[18]Thus the EAT came to the conclusion that, although it may have been not reasonably practicable in that case for the complaint to have been presented until the result of the final appeal had been known, thereafter there was a period, albeit a very brief period, to which the escape clause did not apply; and in those circumstances the appeal was allowed and the Claimant's claim failed. In short, Mr Williams submits that the tribunal in the present case made precisely the same mistake.[19]It is fair to point out that, at the time of the tribunal hearing in this case, the decision in Theobald had been handed down only two days earlier, on 10 January. The effect of that decision is unlikely to have reached the employment tribunal, whether in Birmingham or anywhere else, by 12 January. (Nobody has told me if it was reported in The Times or, if so, when.) It is clear that nobody referred to Theobald at the tribunal hearing.[20]Mr Perhar submits that the tribunal did not make the mistake that was made in Theobald's case. He submits that there are two passages in the tribunal's judgment which show that that is so. First, he points to the latter part of paragraph 7, in which the tribunal referred to Dr Elbeltagi as having his eye off the ball as a result of the negotiations which were proceeding as at the end of September and went on to say that Dr Elbeltagi was shocked to receive, on 7 October, the letter with the result of the appeal which he plainly was not expecting. In those sentences, Mr Perhar submits, the tribunal have included the period from 7 to 10 October as a period which was subject to Dr Elbeltagi's eye being off the ball, and then to the shock which I have described. Secondly, Mr Perhar submits that the first sentence of paragraph 8 demonstrates that the tribunal was considering the period from 7 to 10 October, in that it refers to the outcome only having recently been disclosed.[21]I regret that I cannot accept those submissions. The finding that Dr Elbeltagi had his eye off the ball is tied to the period when the appeal process and resignation process were still continuing. The reference to his being shocked is a reference to his feelings on 7 October. There is no finding that he continued to be shocked or that that shock was or could, on the facts, be a satisfactory explanation for the failure to present the claim form by 10 October. The first sentence of paragraph 8 similarly does not indicate anything as to the tribunal's view of what occurred between 7 and 10 October. The sentence speaks of the impact of the appeal and of the fact that the outcome had only recently been disclosed as being potentially relevant; but the tribunal does not seem to have expressly considered or made any finding as to whether, in the changed circumstances which existed from 7 October, if it was not reasonably practicable for the claim to be presented up to that point, it continued not to be reasonably practicable thereafter.[22]It is understandable that the tribunal have fallen into error in that way. It is understandable, first, because Theobald was not cited to them and, secondly, because no doubt the overwhelming weight of the evidence was directed towards the much greater length of time and much more complex investigation of the facts which was required in relation to the earlier period. As to that first period, in terms of the facts and of its analysis of the effect of the 2004 Regulations and the 2002 Act, the tribunal dealt with the case in a manner which is not subject to criticism. But I have no doubt that the tribunal did make the mistake for which Mr Williams contends; the tribunal did not make any finding into whether it was or was not reasonably practicable for Dr Elbeltagi to have presented his claim between 7 October and 10 October. In failing to do this the Tribunal fell into error; and its decision cannot stand. The Consequences[23]What, then, are the consequences of that error? Mr Williams submits that, if I look at the notes of evidence, I can see that Dr Elbeltagi gave no explanation which could possibly support a finding that it was not reasonably practicable for him to present his claim form between 7 October and 10 October; and it is certainly the case that he did not give any such explanation in his evidence in chief; for the notes of the Chairman expressly say that there was no evidence about that period. However, in cross-examination, he was asked about that period. He said, according to the Chairman's notes, that he did not know why the claim form was not submitted until 12 October. He also said that the date on the claim form should have been 11 or 12 October, as if he had made a mistake on the claim form, (which, one might think, might be viewed as unlikely). However, he said, further, that on the day he presented his claim he had taken advice briefly from the solicitor who had previously helped him with his appeal and only then learnt of the three month time limit and that he should therefore get his claim in straight away. Mr Williams submits that, while that certainly was his evidence, Dr Elbeltagi never explained why he did not know of the three month time limit earlier; he accepted that he knew that he could make a claim; and as an obviously intelligent man, how could it be that he did not realise earlier that there must be some time limit and why did not he make enquiries about it?[24]There are no answers to those questions in the notes of evidence. I do not know what view the tribunal would have taken, had the tribunal directed its mind to the period from 7 October to 10 October. It is accepted by Mr Williams that I can only substitute my own conclusion on this issue if that conclusion is plainly and unarguably the correct conclusion. Another way in which it is sometimes put is that the EAT can only substitute its own conclusion on an issue of fact if it is certain that it is the right conclusion. I take the view that I cannot be so certain. There is no principle of law, as the authorities make clear, that a Claimant who does not know of a time limit, or who does not ask about a time limit, necessarily cannot establish a case that it was not reasonably practicable for him to present his claim in time. He may have difficulties in such circumstances; but that is a matter for the tribunal to resolve; and in my judgment, the correct approach is for a limited remission to the tribunal which should decide whether, whatever was the position up to 7 October, it was demonstrated by the evidence that it was not reasonably practicable for Dr Elbeltagi to present his claim form between 7 October and midnight on 10 October. I see no reason why any further evidence should be required; but if either party wishes to present further evidence, it will have to make an application to the Employment Tribunal. For my part, I would have thought that the outstanding issue which I shall remit to the same tribunal, (for there is no reason for the matter to be remitted to a different tribunal), could be resolved by written submissions, or by oral submissions if the tribunal so allowed without any further evidence. In respect of the period which I have indicated, the Tribunal will have to decide whether it has been shown that it was not reasonably practicable, or, to use the Palmer test, not reasonably feasible, to present the complaint to the Employment Tribunal by 10 October. That decision will be one of fact, the Tribunal posing to itself the question which I have just identified.[25]The appeal therefore is allowed, on the basis which I have described.