MR E RADAKOVITS v ABBEY NATIONAL PLC [2008] UKEAT 0385_07_0402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0385_07_0402Case No Appeal No: UKEAT/0385/07/LA UKEAT/0386/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E RADAKOVITSAPPELLANTABBEY NATIONAL PLCRESPONDENT
Before
His Honour Judge McMullenDate 4 February 2008
[1]APPEARANCES For the Appellant MISS A BASCETTA (Representative) For the Respondent MR WAYNE BEARD (of Counsel) Instructed by: Messrs DLA Piper UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL SUMMARY Jurisdictional Points Extension of time: reasonably practicable Extension of time: just and equitable The Employment Tribunal was correct to require satisfaction that it had jurisdiction. The Employment Tribunal did not err when it held that there were no grounds to hear the claim presented one day out of time. A tactical decision was taken by the Claimant who knew there is a three month limit, and had been so advised by solicitors. An error in calculating the three months did not mean it was not reasonably practicable to present the claim. The period was not extended by three months under EADR Reg. 15 as the Employment Tribunal's Judgment, that the Chairman did not reasonably believe a dismissal procedure was being followed, could not be upset. HIS HONOUR JUDGE McMULLEN QC This case is about the time limit for presenting a claim of unfair dismissal. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Adamson sitting at Bedford on 17 April 2007 with reasons registered on 14 May 2007.[3]The preliminary issue was whether the Claimant's claim was in time. The Claimant was and is today represented by Miss A Bascetta, who was his Manager at the Respondent until they were both dismissed in company with 3,000 others. The Respondent was represented by Miss Norman and today by Mr Wayne Beard of Counsel. The Claimant had come to the hearing on the understanding that there was to be a trial of the substantive issue, but the Employment Tribunal drew the attention of the parties to a jurisdiction issue relating to the time for the presentation of the claim, and that is what took up the hearing. The Tribunal rejected the claim as being out of time.[4]The Claimant appealed. Directions sending the appeal to a preliminary hearing were given by HHJ Burke QC. There, Nelson J and Members decided that three points would go forward to a full hearing. The question as to whether there were four was aired by us this morning since there appeared to be a discrepancy between the reasons in the judgment and the order which followed the reasons. We are clear that ground four was not allowed to proceed. It forms no part of the judgment, which is confined to the first three issues. No directions were given as to the canvassing of the Employment Judge's views or obtaining evidence relevant to the criticism to be made of those persons cited in ground four and no steps were taken by Judge Burke QC to set this up for the preliminary hearing. As Miss Bascetta, who attended at the preliminary hearing, told us there was no mention of ground four and thus we hold that ground four was not the subject of forward transmission to a full hearing and was effectively dismissed at that preliminary hearing leaving this hearing confined to only three points. The legislation[5]A claim for unfair dismissal must be made in three months less a day. There is a power to extend by a discretionary extra period where it is not reasonably practicable to present the claim within the primary period (see Section 111 of the Employment Rights Act 1996 ). An extension may be made where the 2002 regime for Dispute Resolution is in play for Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides this:
"15. Extension of time limits (1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule three or four and - (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply; the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired. (2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."
[6]The extension is of three months so the practitioner's rule of thumb that a claim must be presented within three months less a day now becomes six months less a day: Joshi v Manchester City Council (UKEATPA/0478/07). The facts[7]The facts can only be briefly stated since there has been no trial. There was to be a large number of redundancies pursuant to a proposal made to trade unions representing the staff and including losses of 200 out of a total of over 3,000 at Milton Keynes where the Claimant was employed. The original proposal was the subject of consultations and it was held by the Employment Tribunal that the exemption under the Trade Union and Labour Relations (Consolidation) Act 1992 s188 from the Dispute Regulation regime did not apply in the Claimant's case. That has not been appealed. Thus this claim is to be decided on the basis of the employer being required to go through a dismissal procedure. This being an actual dismissal, the grievance procedures did not apply: Reg 2(1).[8]The proposal was made and the Claimant was given notice of his dismissal on 30 September 2005. He was entitled to four weeks' notice. He was dismissed therefore on 27 October 2005. Miss Bascetta was involved in trying to save the job of herself and others in her department, and on 12 December 2005 there was a meeting with Messrs Russell Jones & Walker solicitors, who had been instructed on their behalf. The solicitors there asked what were the dates of termination and Miss Bascetta gave them the dates. Miss Bascetta made an error for she calculated four weeks from 30 September as expiring on 28 October 2005. The corrected effective date of termination with a three month period for presenting a claim expired on 26 January 2006. The claim was presented the next day 27 January 2006 and thus was one day late. The extension provided by the 2004 Regulations would allow the claim to be presented up to 26 April 2006.[9]The Employment Tribunal found that the Claimant did not have reasonable grounds for believing that a dismissal procedure was being followed on 26 January 2006 when his primary time limit expired and so did not allow the presentation of the claim to be elongated by Regulation 15. The Tribunal appears to have made a decision also on the presentation within what time was reasonably practicable: and so the claim failed. The Claimant's case[10]On appeal a good deal of leeway was given to Miss Bascetta with the indulgence of Mr Beard, very professionally done, so that she told us what evidence would have been called had she been prepared for the issue to be taken as to jurisdiction. She and the Claimant had attended the hearing on the understanding that the Respondent would not take the time point. This is a point of jurisdiction. It is not open to an employer and an employee to agree between themselves that jurisdiction lies with the Employment Tribunal. It is a matter for the Tribunal itself. In The Secretary of State for Health & Ors v Rance [2007] IRLR 665 I dealt with similar issues in relation to new points. Limitation is a point under the Limitation Act which may or may not be taken by a defendant whereas these truly are jurisdiction points.[11]We can understand the dismay of Miss Bascetta and the Claimant when realising she had a preliminary hurdle to cross - jurisdiction - having hitherto understood through correspondence that she was entering a full hearing. But the Employment Tribunal once seised of the problem of jurisdiction was bound to take it. What it did then was to hear from Miss Bascetta and invite the Claimant to give any evidence he wished on the point. She did, he declined. The issue focussed upon the automatic extension point. This was what was foremost in her mind, Miss Bascetta told us, for when she had met the solicitors she knew there was a three month time limit and the solicitors had told her and the Claimant that because there were problems in the law relating to the automatic extension of time it was better to put the claim in during the first period. She submitted to us, in a form which might be described as assertion but which we listened to in any event, that towards the end of January the temps' contracts were not to be renewed and there was some indication that they should put their claims in. The trigger was the relationship between the Respondent and the temps, and "at that stage we rushed to get in the claim on what we thought to be the date".[12]The Tribunal recorded Miss Bascetta's acceptance that she had made an error as to the date. That was caused by the fact that she had not herself seen the documentation, including the dismissal letter of the Claimant, and did not put it before the solicitors but operated upon her own assumptions as to what the dates were. Nevertheless, she contended that for the extension of the period of time Regulation 15 provided two avenues. The first was a letter she had written to the Chairman Lord Burns and the Chief Executive Officer. That was accompanied by a letter to Mr Guy Allen, who was the person who was handling the grievance. The sequence is recorded by the Employment Tribunal as follows:
"12. Following receipt of notice of dismissals by the Claimant, Miss Bascetta and others in her team, the Claimant's manager on her own behalf and on behalf of the Claimant, wrote to the Respondent raising a grievance which in effect was a form of appeal about the dismissals. The Claimant and Miss Bascetta received a reply dated 14 November 2005 dismissing the grievance. On 18 November 2005 Miss Bascetta on behalf of the Claimant sought to appeal that decision, but was promptly told that there was no appeal and that the matter was concluded. Miss Bascetta subsequently wrote to the Respondent's chairman and chief executive officer pointing out, as she considered it, the error of the Respondent's decision, but did not receive a reply."
[13]However, the correct sequence is that the first communication was to Mr Guy at 0743, then to Lord Burns and then Senor Gomez at 0748 and then a response at 0943 from Guy Allen. Guy Allen's note says this:
"As you know my decision on your grievance is final and therefore I shall not be responding to your email."
There never was a reply from Lord Burns or Senor Gomez[14]That is the first route through Regulation 15 on Miss Bascetta's case. The second is that she herself had an appeal and the Claimant was part of it, as to which the Tribunal said this:
"14. Miss Bascetta appealed to the Respondent about her own dismissal on 1 December 2005. That appeal document is at page 397 of the bundle and refers on its face only to her own dismissal. The appeal was heard on 2 February 2006. At that appeal the Claimant pursued her own claim but also presented the case for her former team members. The Respondent did not entertain the case for her former team members. Before her appeal Miss Bascetta considered that her claim was bound to succeed with the inevitable result that she must get her job back, as would her former colleagues."
[15]By either of those routes jurisdiction is extended. The Tribunal was wrong to conclude what was in the Claimant's mind when the Tribunal made these important findings. "15. On the basis of the facts we have found two of the Tribunal members are not satisfied that the Claimant had reasonable grounds for any belief that any disciplinary or dismissal procedure was being followed on 26 January 2006 in respect of matters that consisted of or included the substance of the Claimant's complaint to the Tribunal today. For the same reason, one member of the Tribunal, Ms Carvell, was of the opposite view. The whole Tribunal are not persuaded that the Claimant believed that he had good grounds for considering the substance of his complaint was contained within the appeal of Miss Bascetta."[16]It was contended that at the hearing these matters were not explored. The Respondent's case[17]On behalf of the Respondent it is contended that the reasonableness of belief and actual belief are matters within Regulation 15 which can only be decided by evidence primarily given by the Claimant himself. The Claimant did not do this as is made clear by the response of the Employment Judge when refusing Miss Bascetta's application for a review. The primary time limit of three months was correctly found by the Employment Tribunal to have been exceeded and that there was no good reason for the claim not being presented in time. The Claimant is not entitled to take tactical decisions but must operate on the basis of what is practicable. As to the extension of jurisdiction, in the absence of direct evidence from the Claimant as to what was in his mind, what he believed and what was reasonable for him to believe in the circumstances were matters of evidence which were not brought before the Employment Tribunal. On the material which was put before it, the Tribunal was correct. The legal principles[18]The legal principles for the extension of time for registering an unfair dismissal claim are set out in a range of authorities including Walls Meat Co Ltd v Khan [1978] IRLR 499 CA. One is looking for some sort of barrier which prevents the Claimant on grounds of reasonable practicability from presenting a claim, such as illness. The extension of time by the Regulations can be made if the Claimant reasonably believes that a procedure is in place. The procedure need not be rigid or formal: see Codemasters v Wong (UKEAT/0639/06) and Harris v Towergate London Market Ltd (UKEAT/0090/07). An appeal will fail unless there is sufficient evidence for us to make a judgment that the Tribunal had erred. Discussion and conclusions[19]While we of course express our sympathy that the Claimant may have misunderstood what was to happen at the hearing it does not mean that the decision made there was wrong in law. We are satisfied that an opportunity was given to the Claimant to deal with the jurisdiction point with which he was there presented for the first time. The Employment Tribunal was correct to take the point which had been revealed on pre reading of the file.[20]The essential elements of this case were that the primary period of time expired on 26 January 2006 and the claim was one day late. No grounds have been put forward on which it can be said it was not reasonably practicable. The Claimant knew the time limit. The Claimant had consulted experienced solicitors in this field who had given correct legal advice. The flurry of activity which it is said occurred at the end of January 2006 may well have caused the claim to be presented but the claim was not prevented from being presented by anything which was happening during that period. There was no reason, as the Tribunal correctly found, for it to be said that it was not reasonably practicable for the claim to be put in by 26 January when it was in fact put in on 27 January.[21]Careful scrutiny needs to be given to the end of the limitation period: see Schulz v Esso [1999] ICR 1202 CA but that reveals nothing which will assist the Claimant. Thus the primary period expired. There was no reason to extend the period of time and therefore no reason to extend it by reason of the discretion given to a Tribunal if it had found that it was not reasonably practicable.[22]The second issue therefore is whether the extension should be granted pursuant to Regulation 15. The two vehicles chosen as constituting a disciplinary or dismissal procedure are Miss Bascetta's own appeal and the letter to the leading lights of the Respondent.[23]As to Miss Bascetta's appeal, the Tribunal decided that the Claimant's claim did not form part of Miss Bascetta's appeal. He may have hoped something might occur but there is no evidence of that and there is no basis for challenging the Tribunal's finding that the appeal of Miss Bascetta did not contain a dismissal or disciplinary procedure procedure to which any reasonable belief could be attached. We have been taken to stages in that appeal and we see no error in the Tribunal's diagnosis.[24]As to the other vehicle, that is the letter to the Chairman and the Chief Executive, the chronology is important. Whereas the letter to Guy Allen, which was held to be on behalf of the Claimant by the Employment Tribunal, provoked an immediate negative response, nothing was forthcoming in response to the other letter. There can be no doubt that the end of the road had been reached by the response of Mr Allen. It would not be reasonable for the Claimant to believe that a disciplinary procedure was being followed: on the contrary, he observes that it is at an end and no further action will be taken. At that stage, therefore, the protection of the statutory extension did not arise.[25]Turning then to the other letter, what was crucial was what the Claimant believed to be going on. As Bean J said and I reported in Codemasters , it does not matter what the Respondent is doing. The question is what was in the Claimant's mind and what reasonable grounds he had for believing a dismissal procedure was being followed. It is said that the Chief Executive was ill at the time and that would explain why there was no response. With respect, that cannot explain why there was no response from the Chairman nor does it cover the whole of the period with which we are concerned up to 26 January when the torch must be shone to see what the reasonable belief was. To wait six weeks for a reply from the two senior officers when the grievance officer replies within two hours would give support to the view that the Claimant could not reasonably believe that the two senior officers were dealing with his complaint.[26]In any event this is the finding of the majority of the Employment Tribunal. It is in firm terms. It is a misconception to consider that because this is a split decision it is any the weaker. On the contrary it indicates that there was evidence before the Tribunal from which it could form the view one way or the other. We appreciate the force of Mr Beard's argument that in the absence of the Claimant giving evidence about what was in his mind on 26 January 2006 the conclusion of the Tribunal is fully understandable and supportable.[27]Mr Beard submitted that even if we were to treat seriously the assertions made by Miss Bascetta as to what evidence could be led, this evidence does not prove that the claim could have been made in time. Doing the best we can on this material, we hold that the Tribunal would have made the same conclusion in relation to this even if it were put in evidential form.[28]Thus neither route to the rescue provided by Regulation 15 is available to the Claimant, as the Tribunal found. We would like to thank Miss Bascetta for the conscientious way in which she has approached these proceedings and for presenting the argument of Mr Radakovits. We would also like to thank Mr Beard. The appeal is dismissed.