UKEAT/0538/06/LA 1) MS S BUTTERWORTH 2) MR M PRESSLEY 3) MR C PARR 4) MR R BEASLEY v 1) MR A E EVANS 2) HASLAM HOMES LTD [2007] UKEAT 0538_06_2002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0538_06_2002Case No Appeal Nos UKEAT/0538/06/LA & UKEAT/0586/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UKEAT/0538/06/LA 1) MS S BUTTERWORTH 2) MR M PRESSLEY 3) MR C PARR 4) MR R BEASLEYAPPELLANTS1) MR A E EVANS 2) HASLAM HOMES LTDRESPONDENTSUKEAT/0586/06/LA HASLAM HOMES LTDAPPELLANTMS S BUTTERWORTH 2) MR M PRESSLEY 3) MR C PARR 4) MR R BEASLEY 5) MR A E EVANSRESPONDENTS
Before
His Honour Judge AnsellDate 20 February 2007
[1]APPEARANCES For Haslam Homes Ltd MR ROBERT TOONE (Of Counsel) Instructed by: Messrs Atherton Godfrey Solicitors 8 Hallgate Doncaster DN1 3LU For Ms S Butterworth, Mr M Pressley, Mr C Parr and Mr R Beasley MR SIMON FORSHAW (Of Counsel) Instructed by: Messrs HSRLAW Ship Court Silver Street Gainsbrough Lincs DN21 2DN For Mr A E Evans NEITHER PRESENT NOR REPRESENTED SUMMARY Just and equitable extension Chairman extended time on just and equitable basis. Claimant's rep although on notice made no application to extend time, put no evidence before the Chairman and made no submissions. Chairman's decision was wrong in law and/or perverse. HIS HONOUR JUDGE ANSELL There has been the hearing of an Appeal against a decision taken at a Pre-Hearing Review by a Chairman sitting alone, Mr T R Capp at the Lincoln Tribunal. He heard the matter on 26 July 2006 and reasons were sent to the parties on 29 August 2006. At that hearing a claim for unfair dismissal based on effectively unfair redundancy was dismissed upon withdrawal. The other substantial complaints in the case which related to discrimination on the grounds of sexual orientation brought under various regulations of the Employment Equality Sexual Orientation Regulations 2004 were allowed to proceed on the basis that the Chairman extended time under the just and equitable basis.[2]That provision can be seen from Regulation 34(3) of the 2003 Regulations which provides that a Court or Tribunal may nevertheless consider any such complaint or claim which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so and the time limit is of course the same as in other matters in this jurisdiction that of three months beginning when the act complained of was done.[3]The Appellants before me today were the Respondents below who complain that the decision below was wrong. They are the employers themselves Aslam Homes Limited and then four employees who are named in the proceedings Sharon Butterworth, Mark Pressley, Craig Parr and Russ Beazley and I am grateful for the written and oral submissions from Counsel who appear both on behalf of the employers and the individuals concerned.[4]Mr Evans who was represented by Miss Saunders below has played no part in this hearing. Indeed there was an Interlocutory Order made on 22 December 2006 in relation to the employees' appeal requiring Mr Evans to file an answer within fourteen days or be debarred and that order has taken effect. I do not believe there was a similar order in relation to the employers' appeal and not certain as to why that was the case but an order, I think a similar order has not been made and probably should have been made on reflection. The only other communication from Mr Evans is a letter from Langleys indicating that because of his personal resources being limited and I quote:
"In the circumstances he does not wish to take a further part in the Employment Appeal Tribunal proceedings. He asks the court to confirm the decision taken below and reject the appeal."
[5]The background to the matter is that the Claimant was employed as what was described as a rough telescopic handler from 7 March 2003 until 9 December 2005. The allegations concerned direct and indirect discrimination and harassment on the grounds of sexual orientation or perceived sexual orientation pursuant to the Regulations to which I have made reference in particular Regulations 3 and 5. He was dismissed on 9 December 2005. It is alleged on the grounds of redundancy. As I have indicated already there was an allegation that that dismissal was unfair and in any event was also tainted by the self same discrimination. Liability was denied by both the employers and the four named employee Respondents.[6]There was no formal complaint made during his employment about these matters. The Pre-Hearing Review is virtually silent in relation to a precise analysis of the allegations in the case but further and better particulars filed which were before the Chairman revealed that the allegations go back to June 2004 and continued up to early November 2005. He was then off work for four weeks returning on 5 December 2005 and as I have indicated above dismissal took place four days later on 9 December 2005.[7]A written grievance was sent on 2 February 2006 although the finding of the Tribunal was that it was not received until 6 February 2006 and the ET1 was not submitted until 16 March 2006. The Claimant's case was always that the sending of that grievance in February within a period of three months after the dismissal extended time by virtue of the new regulations by a further period of three months until the beginning of June and thus the complaint filed on 16 March was well within time. They argued that it was a continuing act of discrimination which culminated in the dismissal.[8]The employers and other Respondents argued below that that was not correct and that by virtue of the Dispute Resolution Regulations and in particular Regulation 6(5) the extension of time provisions did not apply where the grievance related to dismissal or contemplated dismissal and it appears to have been agreed below that also caught any allegations of discrimination that were connected with the dismissal or contemplated dismissal.[9]The issue therefore that was to be heard by the Chairman related principally to that contention. The nature of that dispute had been identified at an earlier stage within the proceedings in June 2006 when directions were given for the Pre-Hearing Review and the written submissions filed by the Claimants for the purposes of that Pre-Hearing Review nailed their flag to the mast that the grievance procedure and the ability to extend time did apply to all the acts complained of right up until the redundancy.[10]Within the Appellants' submissions below the alternative course that would arise if the grievance procedure did not extend time namely the possibility of an extension under the just and equitable basis was raised in their submissions. Somewhat surprisingly perhaps it did not appear in the Claimant's written submissions as an alternative way forward for the Chairman to consider. Even more surprisingly I am told that it was not raised as an issue by the Claimant's solicitor below in her oral submissions. In fact the Chairman I am told, called upon the employers' Counsel first and he raised the issue briefly. Nothing was said about it by the Claimant's solicitor and therefore both on paper and orally there was no application to extend time. Before me the Appellants argue that there was no material put before the Chairman as to why the claim was not filed until 16 March 2006. The claim for unfair dismissal was in fact withdrawn by the Claimant without the Chairman being required to rule in relation to whether or not time would have been extended as far as that claim was concerned.[11]The Chairman's decision is on any view a strange one. Firstly he ruled that the grievance procedure did not apply to the matters in connection with the dismissal and having found that in general terms the other allegations not connected with dismissal discrimination could not have occurred any later than 4 November 2005 took therefore the view that the complaint made on 6 February 2006 was too late to extend time under the automatic grievance procedure extension. He then moved on to consider whether the claims could be extended on the just and equitable basis under Regulation 34(3) although no application had been made by the employee for the Chairman to consider that extension.[12]He made no analysis whatsoever of the individual acts of discrimination and in particular made no findings in relation to each individual employee who was affected and in relation to what allegations affected each employee and when they occurred. He made no findings in relation to whether there was a continuous course of conduct in relation to either the employers or in relation to any of the four employees. I mention that because of course part of the analysis if there is to be an extension on the just and equitable basis must clearly require that each allegation is considered in relation to whether the extension will apply to each of those allegations. If it is termed a continuous course of conduct then of course one looks to the last date. It is not a continuous course of conduct then there has to be an analysis in relation to each of the allegations but that was not done. All that the Chairman said was this:
"The best and most generous interpretation which I can give to the Claimant's allegations is to grant the last alleged relevant incident was somewhere about mid October 2005 and the complaint should have been presented by mid January 2006. It was presented some 8 weeks late."
[13]He then went on to deal with the issue thanking Mr Toone who appeared on behalf of the Respondent employers for his help on the issue reminding him correctly that the burden is on the Claimant and that it is an exception rather than the norm to extend time and he was referred quite properly to a number of authorities particularly Robertson v Bexley Community Centre [2003] IRLR 434 and then the Tribunal Chairman said this:
"The Claimant was in receipt of legal advice at the relevant time but he was still late and appreciably late. It is not the case here that it was merely matters arithmetical that need to be considered. I make that point because so often it is just a matter of getting the dates right and adding three months to arrive at the limit for presentation of the complaint. But it is not like that here because of the impact of Regulation 15 of what the EAT have recently referred to as these 'dense' regulations."
The Claimant's case has not been well pleaded and, in particular, it has not been appreciated that there was a requirement to consider allegations divorced from the complaint involving contemplation of dismissal. The original claim and the Additional Information failed to identify those specific acts and dates. However, I consider the complexity of the Regulation procedures, and genuine attempt to comply with them and the belief that this had been achieved and am reluctant to penalise the Claimant for the situation which was brought about by shortcomings of those representing him in appreciating and understanding those Regulations. In the end I do not consider that the Respondent Company will be unduly prejudiced by allowing these claims to proceed on the basis of it being just and equitable. Neither do I consider that the fact there will be difficulty over evidence taking into account that a thorough investigation took place. It is my judgement that evidence given by witnesses is unlikely to be affected. I, therefore, find that it is just and equitable to allow the claims to proceed."[14]As far as the individuals are concerned there was no analysis of how the case affected them and no analysis of the individual allegations or when those allegations occurred. At paragraph 1.22 the Chairman appeared to deal with matters that had been raised in the hearing namely whether or not allegations against employees were caught by the grievance procedure or not but however that seem to me now to be completely irrelevant since the Chairman had decided that the grievance procedure did not extend time as regards the case against the employers and therefore the employees' case had to be considered on the just and equitable basis and yet he did not really make any particular findings in relation to each employee as far as just and equitable were concerned.[15]The Chairman also allowed the amendment to allow the claim in relation to redundancy to be also pleaded as a breach of the regulations. Substantial complaint is made against the way in which this matter was dealt with and it seems to me that those complaints are indeed well founded. The core complaint is that the Chairman in the absence of any application being made by a Claimant to extend time should not have embarked upon that process. The Claimant was aware that the employers and the other employees were going to argue that the grievance procedure did not apply to the dismissal process and could therefore not have protected the other allegations because the grievance letter arrived more than three months after the date of the last allegation. That had been highlighted as a result of the hearing in June and also because of the written submissions. However at no stage did the employee or those representing him seek to advance arguments to the Chairman that time could be extended under the just and equitable principles.[16]It is not for me to say that in certain circumstances a Tribunal dealing with these issues may not take it upon itself to deal with a possible extension. But it seems to me to be highly unusual where the issue has been highlighted as a potential issue to be raised and indeed dealt with in submissions from the employers that a Chairman should take it upon himself in beginning to embark upon in applying the issue where the Claimant who has the evidential burden for an extension does not seek to invoke that relief. Even if I am wrong on that issue in this case there was no material put before the Chairman which in any way could assist him as to how it came about that the grievance was raised late in the proceedings and more importantly proceedings were not issued until the beginning of March 2006.[17]His brief reasons were simply conjecture that matters were left because of an erroneous view taken of the new grievance procedure by those advising the Claimant. In my view there was no material at all before the Chairman to allow him to come to that view. It was only a surmise and in the absence of submissions from the Claimant's representatives it seems to be difficult to say that the Chairman was entitled to come to that one particular view as to why the claim was filed late.[18]It has been stressed by this Court on a number of occasions that the extension of time is an unusual step. The onus is on the Claimant to set out clearly why proceedings had not been commenced within the three month time limit and if it be that it arose because of advice received from others where it be friends, CAB or lawyers then a clear analysis has to take place of the advice that is tended in those circumstances and what if any reliance was placed on that advice by any Claimant so that a Court is then entitled to assess where the fault lay before deciding whether or not to extend time. None of that process took place and it seems to me the Court was in no position to assess for example whether it was the Claimant or his lawyers who were at fault in this process. There was no relevant material placed before the Chairman to enable him to come to a view and it seems to me that he was not entitled to assume that the failure was attributable to the advice and conduct of the case by the solicitors. And it seems to me that the Tribunal singularly failed to ask itself the important question of whether there was any or any sufficient material to convince the Court that it was just and equitable to extend time.[19]As far as the issue of prejudice was concerned obviously there is prejudice against the Claimant if the claim is struck out the Chairman did not consider any other of the balancing factors and in particular failed to carry out an analysis of how far back the allegations went and what prejudice would be caused to the Respondent and their witnesses by having to cast their mind back to those earlier allegations. There was no analysis of what steps had been taken by the Claimant to obtain professional advice from 2004 onwards.[20]As appears from my comments above the position with regard to the individual employees is of anything even more obscure because there was a total lack of analysis other than the one line to which I have referred in relation to the individual complaints made against the employees, when they occurred, was there a continuing course of conduct and whether the time should be extended in relation to those individual complaints. It seems to me that where there are individually named employees then the Court must carry out analysis not only in relation to the allegations as they affect the employers but as they affect each employee who is named as a party and whether in the case of each employee it is just and equitable to extend time and that must involve some analysis in terms of at least dates and the nature of the allegations as in respect of each employee. That was not carried out at all.[21]The issue of discretion in extending time is obviously one that this Court loathes to interfere with and is one that we will not interfere with unless this Court can see that the Tribunal erred in principal or was otherwise plainly wrong. That point was made by Auld LJ in the Robertson case in the context of jurisdiction under the Race Relations Act but it must apply in relation to extension of time under all grounds of discrimination. As I trust is clear from my remarks above it seems that this is a case where the Chairman did make substantial errors and indeed my primary view of the case is that he should not even have embarked upon the process of considering an extension of time in the absence of any request or any material from the Claimant. Therefore the issue arises as to how I should deal with the matter here. One view is that it should be sent back to a different Chairman for reconsideration. But it is argued on behalf of the Appellants that that would give the Claimant a second bite of the cherry which he does not deserve.[22]It is said that it was his choice effectively not to make that application below when his solicitors had been warned that this was likely to an issue. It was his choice not to put material before the Chairman which could substantiate his application and therefore it would be wrong, for him to be placed in a better position now months on than he was at the original hearing when he had opportunity and chose not to take advantage of it. It is not as though this is a case where it is alleged that the Chairman has misapplied the facts or taken an erroneous view of the material that was put before him. There simply was no material put before him on which he could have taken a view erroneous or not and if the Claimant chose to run the case that way below he should not be given a second opportunity to now put his house in order.[23]Some support may be gleaned from the fact that he has chosen neither individually or through solicitors to take a part in this appeal and indeed to assist and support the Tribunal Chairman in any way. Although initially I took the view that it might be appropriate to send the matter back to a different Chairman for a re hearing on this aspect of the case I am now persuaded that balancing the prejudice it would indeed be wholly wrong to take that course of the reasons that I hope I have made clear above. It must also follow that the order which I make which reverses the Chairman's decision therefore effectively eliminates the grounds of discrimination and must also apply to the order as far as amendment is concerned. The amendment which would have allowed the act of dismissal to be pleaded to the alternative as discrimination contrary to regulations would have not fallen within the grievance procedure extension would have required a just and equitable extension and since that extension by virtue of this order will go as far as the other allegations are concerned I see no reason why it should stay as far as that further proposed amendment is concerned. I invite Counsel now just to liaise with my clerk about the simple formal order which will deal with the matter in a satisfactory way as far as you are concerned.