THE ROYAL BANK OF SCOTLAND PLC v MR J THEOBALD [2007] UKEAT 0444_06_1001

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0444_06_1001

Case No Appeal No. UKEAT/0444/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE ROYAL BANK OF SCOTLAND PLCAPPELLANT

MR J THEOBALDRESPONDENT

Before

Lady Smith

Date 10 January 2007

[1]APPEARANCES For the Appellant (Respondent) Mr T Hadden, Solicitor Messrs Brodies Solicitors 15 Atholl Crescent Edinburgh EH3 8HA For the Respondent (Claimant) On Written Submissions SUMMARY Claim for unfair dismissal not presented timeously, within three months, but was presented thirteen days thereafter. During most of the three month period, the Claimant had an outstanding appeal process ongoing and thought, on the basis of erroneous advice he had received from the CAB that he could not present his claim until the appeal was disposed of. The tribunal allowed the claim to proceed on the basis that it was reasonable to extend the time by such a short period. On appeal, whilst an argument that the fact of the erroneous CAB advice necessarily operated in the Respondents' favour was not upheld, the Employment Appeal Tribunal held that the tribunal had erred in that it did not have grounds to conclude that it was not reasonably practicable for the claim to be presented in the part of the three months that remained after the appeal process was completed (a period 1-2 days) and had not made findings or given reasons to justify the conclusion that it was presented in a reasonable time after the end of the three month period. THE HONOURABLE LADY SMITH Preliminaries This appeal concerns a claim for unfair dismissal which was not presented within three months of the date of dismissal. However, the tribunal found that it was not reasonably practicable for the claim to have been presented within that period and that it was presented within a reasonable time thereafter.

[2]I will refer to the parties as Claimant and Respondents. Introduction

[3]The Respondents appeal against the judgment of the Employment Tribunal sitting at Brighton, Chairman Mr LJ Guyer, sitting alone at a pre hearing review. It was dated 28 June 2006. He found that the claim was presented in time and that the tribunal accordingly had jurisdiction.

[4]At the hearing before the tribunal, the Claimant was represented by Mr S Clark, lay representative. He was not represented before this tribunal but Mr Clark had written indicating that the Claimant wished to rely on the grounds relied on by the Employment Tribunal. The Respondents were represented by Miss N Halliday, solicitor before the tribunal and by Mr T Hadden, solicitor, before me. Background Facts

[5]The Claimant was employed by the Respondents as a financial adviser. His employment was terminated on 11 November 2005 by way of summary dismissal for gross misconduct. Midnight on 10 February 2006 was, accordingly, the last point at which he could, in terms of s.111(2)(a) of the Employment Rights Act 1996 , have lodged his application timeously. It was, of course, open to him to do so physically or electronically. His tribunal application was not, though, lodged until 23 February 2006.

[6]The explanation given for the lateness of the Claimant's application was that he had consulted the Citizens Advice Bureau ("CAB") on 19 November 2005. He was advised that, before making an application to the Employment Tribunal, he required to complete the Respondents' internal appeal procedure. There are no findings as to the reason why the CAB gave that advice. In particular, there are no findings as to what was the source of their evident misunderstanding of what was the correct position in law.

[7]The Claimant received the Respondents' final appeal decision on 9 February 2006 which was that his appeal was unsuccessful. He downloaded a form ET1 from the internet that day and, on the tribunal's findings, "used it as a template". There are no findings at all as to why he did not simply proceed to use the downloaded form and submit his claim at that point. There are no findings that it would not have been possible for him to do so. What the tribunal did find was that he "spoke to a number of relatives and he went about completing a form which he obtained through the post and lodged it with the tribunal" (para 12). The form, dated 20 February 2006, was received there on 23 February 2006. The relevant tribunal office was Brighton. The Claimant gave his address as being at a flat in Brighton, in his form ET1. Tribunal's Judgment

[8]The tribunal, in finding in favour of the Claimant, stated, at paragraph 14 of its judgment:

"I take into account what the applicant believed following the advice he received; the fact that he was awaiting for the appeal procedure to be concluded and the fact that the Regulations exist. I do not think that I can treat the applicant's state of mind in relation to the appeal system completely devoid from the Regulations of 2004."

[9]The reference to the Regulations of 2004 is a reference to the extension provisions contained in paragraph 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the 2004 regulations"). Parties were agreed that the regulations did not apply so as to extend the three month time limit in the present case. The judgment then, at paragraph 16 – 18, continues as follows:

"Mr Clark has relied on a case referred to by Miss Halliday namely Marks and Spencer plc v Williams–Ryan ……..…but Miss Halliday points out quite correctly in my view that the actual factual matrix there is somewhat different to that here. However that case is helpful in more ways that (sic) one because it does review most of the authorities. I believe that there is no single factor that it (sic) determinative of how I make my decision. I believe that the existence of the internal appeal procedure, the time the applicant received the letter, the advice he received and then the steps he then took and the existence of the Regulations all contribute to my being able to make a finding which I do that it was not reasonably practicable for this claim to be presented within the normal time limit. 17. Miss Halliday urges me to say the further period of some 13 or 14 days is not a reasonable period but I consider it reasonable to extend the time by such a comparatively short time and I do so. 18. In conclusion I have not found this an easy matter to decide and I am conscious of the judicial dicta one should try and construe Section 111(2) ERA 1996 with some degree of liberality without regarding it as a charter to ignore the facts and the law."

Respondents' Submissions on Appeal

[10]For the Respondent, Mr Hadden submitted that the tribunal had erred in law in that it had failed to recognise that the fact of the CAB having given the wrong advice operated in the Respondents' favour. Under reference to Dedman v British Building and Engineering Appliances Ltd [1974] ICR, London International College v Sen

[1993] IRLR 333

, and Riley v Tesco Stores Ltd

[1979] ICR 223

, he submitted that the tribunal should have regarded the CAB as a skilled adviser and should have considered the fact that the Claimant had consulted a skilled adviser as showing that it was reasonably practicable for him to have presented his claim in time. That was his principal submission.

[11]Mr Hadden also submitted, however, that the tribunal had erred in its approach to the matter of the ongoing appeal process, under reference to Bodha v Hampshire Area Health Authority

[1982] ICR 200

, Singh v Post Office

[1973] ICR 437

, and Palmer and Saunders v Southend on Sea Borough Council

[1984] IRLR 119

. The invoking of an appeal procedure did not justify a finding that it was not reasonably practicable to present a claim in time in the absence of exceptional circumstances and there were no such circumstances in the present case.

[12]Further, he submitted that the tribunal had erred in law by being unduly influenced by the 2004 regulations. They had been treated as being of relevance when they were not.

[13]He also submitted that the tribunal had erred in law by referring to unidentified "judicial dicta" in its paragraph 18. The general reference to dicta about liberality in the construction of s.111 had led to the tribunal applying a liberal approach to the whole concept of reasonable practicability which was not justified. He referred to the Marks and Spencer case, Palmer and London Underground v Noel

[2000] ICR 109

in that regard.

[14]Finally, he submitted that the tribunal had erred in law by providing no reasons to explain why it considered that it was reasonable for the Claimant to submit his claim 13 days after the expiry of the three month time limit. At pre hearing review, the Respondents had put forward, in support of a case that it was unreasonable to allow a period of 13 days that there was no physical impediment to the Claimant presenting the claim earlier and no evidence was led to suggest that he was ill or otherwise incapacitated, that the Claimant would not have required a significant amount of time to act after having received the letter of 9 February which was short and clear, and that the claim form ultimately submitted was short and in respect that there are only two brief references to the appeal process contained in it, could have been almost completed prior to the final outcome of the appeal process. All these factors pointed to the 13 day period allowed being unreasonable. The tribunal did not address the points raised by the Respondents and their failure to do so and to provide reasons why 13 days was considered to be reasonable did not fulfil the requirement to give reasons as set out in, for instance, English v Emery Reimbold & Strick Limited

[2002] EWCA Civ 605

. Submissions for the Claimant on Appeal

[15]The Claimant was, as I have indicated, content to rely on the tribunal's reasoning as set out in its judgment. Relevant Law

[16]S.111 (2) of the Employment Rights Act 1996 , relates to remedies for unfair dismissal and provides:

"….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 three months."

[17]The question as to the correct application of the reasonable practicability requirement has given rise to much judicial discussion which is not terribly surprising given the endless permutations of facts and circumstances that can arise from case to case. One thing that seems clear is that it is now agreed that it is not simply a question of asking whether the Claimant has a reasonable excuse for not having lodged his application within the three month period. The reasonable practicability requirement has to be given some meaningful content. It would appear to import an objective standard and it is certainly not to be seen as a synonym for the conferring of a wide unfettered equitable discretion to allow a late claim. That is not what Parliament has provided, although it could have done, had it thought it appropriate; a comparison with the distinction that can be drawn between the "reasonable practicability" provisions of s.17 of the Prescription and Limitation (Scotland) Act 1973 and s.14 of the Limitation Act 1980 and the wide equitable discretion that is provided for s.19A of the Scottish Act and s.33 of the English Act immediately springs to mind. There is nothing in the Employment Rights Act 1996 that corresponds to the provisions of s.19A and s.33 so far as the late presentation of claims for unfair dismissal is concerned.

[18]As regards the implications, for questions of reasonable practicability of the fact that the Claimant has an adviser who misunderstands or overlooks the time limits and conditions under which a complaint can be presented to an employment tribunal, specific consideration has been given to the matter in the cases of Dedman , London International College and Riley .

[19]Taking Dedman first, it is a case that dates back to the time when claims for unfair dismissal required to be presented within four weeks. The Claimant instructed his solicitor to handle his claim within about a week of his dismissal. He had no knowledge of the relevant time limits but left it all to his solicitor, who failed to present the application in time. At p.61, the Master of the Rolls, Lord Denning referred to a number of cases in which he considered that the English courts had given a liberal interpretation to what he calls the "escape clause". It is important though, when considering the decision, to recognise that the "escape clause" in question was in different terms from the present one. It was to the effect that a claim was not time barred if it was "not practicable" to have presented it within the short period of four weeks to which I have referred. Such leeway or softening of approach as is implied by the use of the qualification "reasonably" in the current provision, was not present in the legislation. A practice had grown up of a literal approach being adopted in Scotland but a more liberal approach being adopted in England, the latter resulting in decisions which read rather as though the word "reasonably" was, in effect, being read into the provision. The line was, however, drawn when it came to circumstances where a Claimant had instructed a skilled adviser to act on his behalf in making his claim and that adviser had failed to comply with the requisite time limit. Lord Denning said:

"But what is the position if he goes to skilled advisers and they make a mistake? The English court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It was held that it was 'practicable' for it to have been posted in time. He was not entitled to the benefit of the escape clause: see Hammond v Haigh Castle & co Ltd [1973] ICR 148 . I think that was right. If a man engages skilled advisers to act for him ---and they mistake the time limit and present it too late ---he is out. His remedy is against them."

[20]By the time of the London International College case, the statutory provision had changed. The word "reasonably" had been inserted before the word "practicable" in the "escape clause". Mr Hadden relied on the following passage in the judgment of the Court of Appeal delivered by the Master of the Rolls (Sir Thomas Bingham):

"When a prospective complainant consults a solicitor or a trade union official or similar adviser, the authorities do suggest that he can no longer say that it was not reasonably practicable for him to comply with the time limit even if the adviser advised wrongly."

[21]It seems important, however, to read on. The Master of the Rolls continues:

"I must, however, say that, for my part, I find the rationale of that principle very hard to understand. If the test is whether it was reasonably practicable or practically possible or reasonably feasible to present the claim in time, it would seem to me irrelevant whether or not the complainant had consulted a solicitor. That would seem to be to be a possible approach to the language of the section but it is one which previous authority has firmly rejected and such authority has concentrated on the state of mind of the prospective complainant and the extent to which he understood his position. If, however, it is his state of mind and understanding which matters, it seems strange to me that a complainant who is misled by incorrect advice into misapprehending his rights is unable to rely on the escape clause ….If the rationale is that he cannot rely on the escape clause because in such circumstances it is his adviser and not the employer who should compensate him, then there would appear, as the authorities suggest, to be a distinction between a solicitor who is prima facie liable for misleading advice and other sources of advice which are not, or may not be, liable for giving incorrect advice. I do not for my part find it easy to apply these principles because, as I have indicated, I do not find it easy to understand them. I question, however, whether the earlier cases were really purporting to lay down a rule of law to govern what is essentially a question of fact..…."

The stress laid on the resolution of each case being essentially a question of fact seems apt.

[22]Turning then to Riley , it was a case where the Claimant had not only consulted the CAB but had left them to, on her behalf, submit to the tribunal the form that she had signed. That was, however, something which in the event they did not do when she advised them that she was facing criminal charges arising from her employers' allegations; they thought, wrongly, that that meant that they would have to put stop to the claim in the meantime. The claim was subsequently submitted, late, after the Claimant was acquitted of the charges against her. The Court of Appeal held that the CAB could be regarded as a skilled adviser. Since the Claimant had taken the advice of a skilled adviser and there had been a failure to present the complaint in time, the tribunal had been entitled to find that it was reasonably practicable for the claim to have been timeously made.

[23]The proposition that delay attributable to fault on the part of a skilled adviser cannot be relied on by a Claimant as indicative of it not being reasonably practicable for his claim to have been presented during any such period was considered in the Marks and Spencer case. Having noted the proposition, Lord Phillips Mr of Worth Maltravers, said:

"The third proposition is unquestionably one of law. It is, expanding it a little, that if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the employment tribunal in due time. The fault on the part of the adviser is attributed to the employee."

[24]The Master of the Rolls then refers to other authorities, including the passages from London International College , Dedman and Riley to which I have referred and, at paragraph 31 poses the question of what proposition of law they establish. He answers it in the following way:

"The passage I quoted from Lord Denning's judgment in Dedman …was part of the ratio. There the employee had retained a solicitor to act for him and failed to meet the time limit because of the solicitor's negligence. In such circumstances it is clear that the adviser's fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an employment tribunal."

[25]He added that, despite the observations about the status of the CAB in Riley , he was hesitant to say that an employee could never pray in aid that it was not reasonably practicable for him to have presented a claim within the time limit where the cause was his having been misled by the CAB; it would, he indicated, depend on who gave the advice and in what circumstances. It would, in short, be a question of the particular facts and circumstances of the case.

[26]So, it would appear that there is no rule that the CAB should always be regarded as being a skilled adviser, comparable to a solicitor. Further and more significantly, if the facts of a case are that the Claimant had put the handling of his tribunal claim in the hands of a skilled adviser and that adviser negligently failed to meet the time limit then the view ought normally to be taken that it was reasonably practicable to present the claim in time. The reason for the lateness of the claim will not usually be seen as being that it was not reasonably practicable to present it timeously; rather, it will be characterised as having been the fault of the adviser and nothing more or less than that.

[27]It does, however, seem that a distinction should be drawn between such a case and circumstances where a Claimant does not instruct an adviser to present his case for him but simply seeks advice in circumstances where he retains responsibility for the presentation of his claim himself. In such a case, none of the existing authorities would seem to indicate that the Claimant must necessarily be fixed with the fault of his adviser so as to make the "escape clause" unavailable to him. In the case of the fault of the skilled adviser who has been charged with the responsibility of presenting the claim, it will not normally be able to be suggested that it was reasonable for such an adviser to delay beyond a statutory time limit. Such an adviser should know better. If, on the other hand, the adviser has not been instructed to act for the Claimant in presenting and furthering the claim, matters appear rather differently. The Claimant retains responsibility for that and he does so in circumstances where he has been misinformed, by a skilled adviser, as to his right to lodge a claim. The difference is that in that event, it is likely to be the case that whilst it may well have been practicable in the sense of it being possible or feasible to present the claim in time, it is not reasonable to have expected that to have been done. In such circumstances the Claimant has been told by someone upon whose advice he was entitled to rely, that he was not entitled to do so.

[28]To put it another way, in the case of the negligent adviser who has been instructed to present the claim, his error may disable him from doing so in time, but it can hardly be said it is reasonable that it does so since the error is within his control and should not have occurred. On the other hand, in the case of the Claimant who has not handed over responsibility for presentation of his claim to an adviser, he too may be disabled from timeous presentation but the error being outwith his control and being something which he is entitled to rely on as being non – erroneous, whatever the true situation, it seems to me that there is likely to be much less chance of the view being taken that it was, nonetheless, reasonably practicable to present the claim in time.

[29]I recognise that the result may be that in some cases where liability might otherwise have been passed on to the negligent adviser, that will not happen. The employee will be able to proceed against his employer despite the lateness of his claim. That should not, however, be a matter of concern. The above analysis properly accords with the statutory formula, in my view, a formula which is not directed towards the achievement of any particular system for the allocation of responsibilities as between employer and professional indemnity or other insurer or third party. Discussion and Conclusions

[30]The starting point is to recognise that the tribunal required to ask itself the following questions: 1. whether the claim was presented within 3 months of the date of dismissal? 2. whether it would have been reasonably practicable for it to be presented within 3 months of the date of dismissal? and 3. if not, was it presented within a reasonable time thereafter? "…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." "was it reasonably feasible to present the claim to the Industrial Tribunal within the relevant three months?" "…the judgment must enable the appellate court to understand why the judge reached his decision ….the issues which were vital to the judge's conclusions should be identified and the manner in which he resolved them explained."