MRS M AVERNS (ON BEHALF OF MR AVERNS DECEASED) v STAGECOACH IN WARWICKSHIRE [2008] UKEAT 0065_08_1607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0065_08_1607

Case No Appeal No. UKEAT/0065/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS M AVERNS (ON BEHALF OF MR AVERNS DECEASED)APPELLANT

STAGECOACH IN WARWICKSHIRERESPONDENT

Before

Mr Justice Elias

Date 16 July 2008

[1]APPEARANCES For the Appellant MR CHRIS ANDREWS Representative Warwickshire Employment Rights Service Newtown Road NUNEATON Warwickshire CV11 4HR For the Respondent MR KEVIN J O'DONOVAN (of Counsel) Instructed by: Messrs Henmans LLP Solicitors 5000 Oxford Business Park South OXFORD OX4 2BH SUMMARY JURISDICTIONAL POINTS Extension of time: reasonably practicable Extension of time: just and equitable The Employment Tribunal found that claims for unfair dismissal and disability discrimination, brought by the estate of a deceased employee, were out of time. They held that it was not reasonably practicable to present the claims in time, but that the wife of the claimant had not acted reasonably and promptly thereafter. Accordingly they held that the claim had not been put in within a reasonable period thereafter with respect to the unfair dismissal claim; and that it was not just and equitable to extend the time with respect to the disability discrimination claim. The EAT held that in concluding that the wife had not acted promptly and reasonably, the Employment Tribunal had not given proper consideration to their important finding that she was ignorant that the estate could pursue these rights after her husband's death. The appeals were upheld and the case remitted to a fresh tribunal. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an appeal brought by the Estate of Mr Averns, who was the claimant before the Employment Tribunal. He was a coach driver and was employed by the respondent from 17 April 2005 until his contract was terminated on 17 July 2006. By then he had been absent for some four months on sick leave. He had been diagnosed with cancer and was having treatment. Sadly, he died on 5 October 2006. This was some 11 days before the final day for lodging his Tribunal claims which were for unfair dismissal and disability discrimination.

[2]No claim was lodged within the three month period. Thereafter, Mrs Averns was understandably – as the Tribunal found – grieving for her husband. In addition, she had been subject to a number of traumatic events around the time of her husband's death. In July Mrs Averns' daughter contracted MRSA when she was in hospital giving birth to her daughter. In early August Mrs Averns' stepfather had died. After her husband's death she was involved in helping to arrange the marriage of Mr Neil Averns, which took place on 11 November 2006 (it having been brought forward in the hope that the claimant would be able to attend).

[3]The Tribunal found that it was over the Christmas period that Mrs Averns began to discuss with the family how she could rebuild her life. She returned to her job, and she also wanted to address the issue of the claimant's death in service benefit. Her belief, and that of her husband, had been that his employment had been deliberately and prematurely terminated to enable the employers to avoid having to make a death in service benefit.

[6]The Tribunal made the following specific finding with respect to her knowledge of her rights:

"Whilst unaware of the precise entitlement to bring claims of unfair dismissal or disability discrimination, the claimant and his wife and daughter were well aware in broad terms of the right to make a claim to the Employment Tribunal, although not the time limits for doing so. However, Mrs Averns was wholly unaware that the Estate or survivors of an employee who had died could continue with bringing a claim."

[7]In early January 2007 Mrs Cooper (Mrs Averns' daughter) contacted the Citizens Advice Bureau on behalf of Mrs Averns. She was seeking advice on whether the death in service benefit could be claimed. It was as a result of seeking their advice that Mrs Averns was told that she could take the unfair dismissal and disability discrimination claims on behalf of the Estate. The Claim Form was then presented on 21 January 2007. The preliminary hearing.

[8]There was a preliminary hearing before the Employment Tribunal to determine whether it had jurisdiction to hear these claims. Both claims ought to have been presented within three months of the date of dismissal. Plainly they were not.

[9]By section 111(2) of the Employment Rights Act it is provided that even where the claim is not taken within three months the Tribunal does have jurisdiction to hear an unfair dismissal claim if the claim is presented:

"within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the claim to be presented before the end of the period of three months."

[10]With respect to the disability discrimination claims, paragraph 3(2) of Schedule 3(3) to the Disability Discrimination Act 1995 provides that a claim which is otherwise out of time may be considered by the Tribunal:

"if in all the circumstances of the case it considers that it is just and equitable to do so"

. It is well established that the latter test gives far greater leeway to the Tribunal than the former.

[11]The Tribunal heard submissions and considered a number of authorities with respect to each of these claims for an extension. It was satisfied that it was not reasonably practicable for the claim to be presented within three months. The claimant had been very ill from early August until his death. The Tribunal turned to consider the further period of delay and noted that it amounted to longer than the original primary limitation period. It then said this, with respect to the unfair dismissal extension:

"Given the claimant's, and also Mrs Averns', strong sense of injustice about the circumstances of dismissal from the outset, the Tribunal concluded that, after his death and funeral, Mrs Averns had concentrated, entirely understandably, on sorting out other family concerns rather than actively seeking to pursue any possible right of action on the claimant's behalf. The claim was not presented within a reasonable further period and the unfair dismissal claim was rejected."

[12]The Tribunal then went on to consider the question of whether the just and equitable extension should apply. It considered the factors which the EAT in British Coal Corporation v Keeble

[1997] IRLR 336

said was a useful checklist for cases of this kind derived from section 33 of the Limitation Act 1980, and which is adopted in determining whether the limitation period should be extended in personal injury claims. These include the length and reasons for delay; the potential prejudice to the trial; the extent to which the other party has cooperated with any requests for information; the promptness with which a party has acted once he or she knew of the facts giving rise to the cause of action; and the steps taken to obtain appropriate legal advice once he or she knew of the possibility of taking legal action.

[13]The Tribunal noted the extent of the delay, that there was no blameworthy conduct by the respondent, and that it was common ground that the claimant was disabled within the meaning of the Disability Discrimination Act . The Tribunal then said this with regard to the final two factors:

"…The Tribunal concluded through Mrs Averns had not acted promptly and reasonably despite knowing that it was the respondent's act in dismissing Mr Averns which might be capable of giving rise to the claim. Finally the knowledge of the claimant and Mrs Averns, ie their sense of injustice and suspicion that the respondent had dismissed the claimant to avoid having to make any death in service payment was present from when the claimant was dismissed. No real steps were taken prior to January 2007 to ascertain the correct legal position as to any cause of action and entitlement to pursue that cause of action on behalf of the claimant's Estate. Therefore, although the Tribunal expresses great sympathy with Mrs Averns and the claimant's family in these sad and unusual circumstances, the Tribunal concludes that the claimant has not established that it is just and equitable to consider the DDA claims at a full hearing."

The parties'submissions

[14]Mrs Averns submits that the approach to the reasonably practicable test manifests two errors of law. The first is that the Tribunal appears to have concluded that the mere fact that the further period was longer than the original primary limitation period of itself led to the conclusion that the claim was out of time. In fact, the Tribunal ought to have had regard to the reasons for the delay; all the relevant facts must be considered when determining whether the complaint was presented within such further period as the Tribunal considers reasonable: see the observations of Mummery P giving the judgment of the EAT in Marley (UK) Ltd v Anderson

[1994] IRLR 152

, para 30. Here the relevant factors were in particular the grieving in the aftermath of the death, the other traumatic events to which we have referred, and the fact that, in any event, Mrs Averns was unaware of her rights. These were not factors identified by the Tribunal at all when it set out its conclusions on this part of the case.

[15]The second ground is that the Tribunal could not in any event properly form the view that Mrs Averns had failed to act reasonably and promptly in circumstances where, as the Tribunal found, she was ignorant of her right to claim unfair dismissal. It is well established that lack of knowledge, provided that it is reasonable, provides a full explanation for any delay: see the decision of the Court of Appeal in Walls Meat v Khan

[1978] IRLR 499

[16]As to the just and equitable extension, the grounds were similar. Even though the Tribunal considered the factors identified in the Keeble case, they concluded that Mrs Averns had not acted reasonably and promptly, and stated that she had given no satisfactory explanation for the delay when in fact she had given a full explanation, and had no knowledge of her rights. Once she became aware of her rights, she acted promptly in presenting her claim. In the circumstances the conclusion of the Tribunal was unsustainable.

[17]The respondent submits that with respect to each aspect of the claim the Tribunal made findings which it was entitled to make. It was then a matter for the Tribunal to apply the law to those facts. However, the Tribunal has a wide discretion when applying these principles and it is only if there is a plain misdirection or perversity that the EAT can intervene.

[18]It may have been understandable for Mrs Averns to put her family concerns ahead of any potential legal claim, as indeed the Tribunal found, but nonetheless it was plainly open to the Tribunal to conclude that in all the circumstances the delay was unreasonable. Mrs Averns was not physically or mentally incapable of obtaining advice, and subsequently she did so. She had knowledge that she might have a potential remedy with respect to her concerns about the death in service benefit but she chose not to pursue it. Had she done so earlier, as she could have done, her claims would have become clear. The Tribunal found that in the circumstances there was no full and satisfactory explanation for the delay, and this was a finding open to them. It was effectively decisive of the both aspects of the claim. Conclusions.

[19]It is very well established, with respect to each of these claims, that the discretion whether or not to extend time is one which is for the Tribunal unless there is a misdirection or the decision is perverse. Absent a misdirection, the issue is, therefore, whether the conclusions were outside the generous ambit given to tribunals: see the observations of Lord Phillips MR giving the judgment of the Court of Appeal in Marks and Spencer plc v Williams Ryan

[2005] ICR 1293

paras 42-43.

[20]With regard to the reasonably practicable extension, we accept that if the conclusions of the Tribunal on this point are read in isolation, there is some force in the claimant's contention that the length of the delay appears to have been the decisive factor. However, it is plain from its finding on the just and equitable aspect of the case that the Tribunal considered that Mrs Averns had not acted promptly and reasonably, and they did so whilst recognising the particular personal difficulties which she faced. We think on a fair reading of the decision that finding must relate to both claims. It follows that in our view it is not right to say that the Tribunal fell into the error of only focusing upon the length of the delay.

[21]We do, however, see more force in the second ground. It is the case, as the respondent submits, that the mere fact that a claimant is unaware of his or her rights or the relevant time limits is not of itself sufficient to explain any delay; the issue is whether Mrs Averns ought reasonably to have known about them. Again a passage from the judgment of Lord Phillips MR in the Marks and Spencer case is in point (para 21):

"…it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances. So far as that question is concerned, there is a typically lucid passage in the judgment of Brandon LJ in Wall's Meat Co Ltd v Khan [1978] IRLR 499 at p.503 which I would commend: "

With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned. For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant. While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries.""

[20]In our judgment, the penultimate sentence from Lord Justice Brandon's judgment is highly material here. It is true, as the respondents emphasise, that Mrs Averns did consider that she might have some claim with respect to the death in service benefit. However, as the Tribunal found she had no knowledge that she had the rights which she is now seeking to pursue. She appreciated that her husband may have had those rights whilst alive, but she had assumed that they ceased after his death. In those circumstances we do not think that the Tribunal was justified in concluding that she had failed to act promptly or reasonably, or at any rate it was not entitled to reach that conclusion without fully addressing the fact that she did not understand that she had these rights at all.

[21]The respondent says that it is enough that she knew that she may have some claim, even one relating to death in service. The Tribunal was entitled to say that she should have pursued that claim more speedily and had she done so, the position would have been clarified much earlier. We recognise the force in that argument but we are not satisfied that the Tribunal gave proper, if any, weight to her lack of knowledge as to her rights. On any view this was a highly material factor.

[22]As we have said, there is a broader discretion which can be exercised with respect to the just and equitable extension although the onus is still on the claimant to demonstrate good reason for the extension, as Mr Justice Langstaff recently had cause to observe in Department of Constitutional Affairs v O'Brien

UKEAT/0139/07

[23]In this case the Tribunal properly directed itself with regard to the factors identified in the Keeble case, and assessed the evidence with regard to those factors. However, we think that the analysis was flawed, essentially for the same reason that we have found in relation to the reasonably practicable extension. This caused the Tribunal to make a finding that Mrs Averns had not acted reasonably and promptly without specifically focusing upon her lack of knowledge. Disposal .

[24]It follows that the appeal succeeds. We do not, however, consider that the position is so clear that we can determine whether these extensions should be granted or not. The case will have to be remitted to a fresh tribunal for the matter to be determined again. Of course, that Tribunal will have to act on the basis of the facts which it finds. It will not be bound by any findings made by this Tribunal.