DHL EXEL SUPPLY CHAIN LTD v MR M DAVIES [2009] UKEAT 0035_09_0604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0035_09_0604Case No Appeal No. UKEAT/0035/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DHL EXEL SUPPLY CHAIN LTDAPPELLANTMR M DAVIESRESPONDENT
Before
Mr Justice BurtonDate 6 April 2009
[1]APPEARANCES For the Appellant MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Messrs Clarkslegal LLP Solicitors 2 Caspian Point Cardiff Bay CF10 4DQ For the Respondent MR BARRY HARWOOD (of Counsel) Instructed by: Messrs Geldards LLP Solicitors Number One Pride Place Derby DE24 8QR SUMMARY JURISDICTIONAL POINTS: Extension of time: reasonably practicable In relation to the Claimant's application for an extension for an out of time application for unfair dismissal, the Employment Judge ("EJ") made a finding that the dismissal was on 21 December 2007 but that, although there was uncertainty prior to 8 February, the Claimant was on and after 8 February under the belief that he was dismissed on 8 February. The EJ found that the Claimant had that belief notwithstanding clear statements that he was dismissed on 21 December, by the Appellant to the Claimant and his representative on 8 February, by the Claimant himself on 5 March and in correspondence. EJ made no finding that such belief was and/or continued to be reasonable. Not remitted, because no tribunal could find that it was. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of an appeal by the Respondent company, DHL Exel Supply Chain, against the decision of Employment Judge Bloom sitting at the Employment Tribunal at Bedford after a hearing on 11 October 2008 and 22 October 2008 in a Judgment handed down on 30 October 2008.[2]The application that was before the Employment Judge related to a claim for unfair dismissal brought by the Claimant, now Respondent, Mr Davies in respect of his dismissal by the Appellant company. The date of dismissal, as found by the Employment Judge, was 21 December 2007. That meant that the application for unfair dismissal ought to have been lodged on or before 20 March 2008 and it was in fact presented eight days late on 28 March 2008.[3]The application on which oral evidence was heard related to whether it was reasonably practicable for the Claimant's claim to have been presented in time. Sometimes the only issue in such a case arises because a Claimant is ill or something of that kind, or away, and seeks to justify the delay on that basis. That was not this case. The basis upon which this case was put forward was that the Claimant said that he was not dismissed on 21 December 2007, but was dismissed on 8 February 2008, and that consequently his time did not commence to run until 8 February, so that he was in time.[4]It seems that he consulted a solicitor about his claim on or about 27 March 2008, and that solicitor no doubt immediately advised him that he should put his claim in, which he did, the following day. That shows that there was no cause for delay, and that he was in a position to act promptly, and did act promptly, in relation to putting in a claim within 24 hours, so that this is not a case in which it is said that the claim was so complicated that it needed days or weeks to formulate. It was in a position to be issued within 24 hours of advice that it should be.[5]So the whole case really revolves around the issue as to when the dismissal date was, and the Tribunal firmly resolved that the dismissal date was indeed 21 December 2007. The case, therefore, was as to whether the Claimant was under the belief that he had been dismissed on 8 February, and whether that was a reasonable belief. There is no doubt at all as between the two parties and none as between Counsel before me today, Mr Daniel Tatton Brown for the Appellant company and Mr Barry Harwood for the Claimant/Respondent, that those are the requirements of the law in order for a Claimant to establish that the existence of some belief justifies his not being in time. The leading authorities which have never been doubted are Wall's Meat Company Limited v Khan [1979] ICR 52 CA and Dedman v British Building and Engineering Appliances Limited [1974] ICR 53.[6]Mr Tatton Brown has a fallback argument that, even if a Claimant has such a belief, and it is reasonable, if that reasonable belief comes to an end - either there ceases to be such a belief or the belief ceases to be reasonable - at some time prior to what would otherwise be the expiry of the three-month period, then the Claimant, in order to surmount the second requirement of this rule of reasonable practicability, would need to show that it was not reasonably practicable to bring the claim between the date when the belief ceased, or ceased to be reasonable, and the expiry of the period.[7]It seems to me that such second fallback argument, whose existence again Mr Harwood does not challenge as a matter of law, and which comes from a line of authorities in Wolverhampton University v Elbeltagi (a decision of Judge Burke QC in the Employment Appeal Tribunal of 13 July 2007), but really stems from Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119, is simply illustrative of the ordinary principle: that if an extension of time is to be granted by an Employment Tribunal, or this Appeal Tribunal, or indeed the High Court, it is not enough simply to put forward an excuse or reason for the delay, but that that excuse or reason has to cover the entirety of the period, particularly in this case where, as has been seen, 24 hours was in the event enough time for the putting in of a valid application. Thus if the belief had ceased or had ceased to be reasonable even a day or two before the expiry period, then justification would have been required for delay in respect of that latter period.[8]The facts were somewhat unusual in this case, as the Employment Judge emphasises in his Judgment, because of the confusion that he found there was in the minds of the Claimant and the Respondent in relation to the disciplinary process adopted. The history is well set out in the Employment Judge's Judgment and I do not propose to repeat it.[9]Although it was clear that the Claimant was dismissed for alleged gross misconduct on 21 December, after a disciplinary hearing that had commenced on 17 December, and the correspondence which followed thereafter through to the beginning of January 2008 confirmed the dismissal and made that date quite clear, there then commenced, as from 9 January, a series of communications, both in writing and at the various hearings which followed, which constituted a potential source of confusion. It seems that the Appellant company was concerned that the point being made by the Claimant, namely that his disciplinary hearing and dismissal decision should not have been by the same person who had carried out the investigation, had justification, so that there ought to be a reconsideration of the position by a person not previously involved.[10]That, of course, was perfectly capable of being dealt with by an appeal in the ordinary way. There are many decisions of the tribunals which indicate that procedural unfairness of that kind can be, and usually is cured, by an independent appeal. But certainly wording was used by the Respondent in their letters, and at some of the hearings, which could lead to confusion as to whether what was taking place was an appeal, or was a reconsideration of the dismissal. The history is well set out by the Employment Judge.[11]However, this ended with the second adjourned hearing of the appeal, if that is what it was, and indeed that is what the Employment Judge concluded that it was, as will be seen, or of the reconstituted disciplinary hearing, if that is what it was thought to be by the Claimant. At the end of that hearing on 8 February the conclusion that was stated by the panel, in the words of the chairman of the panel, Mr Ollie Hashim, was, for the reasons that he set out at length: "Therefore, the summary dismissal you received still stands".[12]There followed, after some exchanges a question asked by the lady, Ann Briden, who was, albeit from the Human Relations department of the Appellant, attending the meeting as the Claimant's representative. She asked, "Can you confirm the date of the dismissal?" The Chairman, Mr Hashim, replied, "21 December 2007." To which Mrs Briden responded, "Okay." Mr Hashim said, "The summary dismissal on that date still stands." Mrs Briden asked, "Anything else, Mark?" The Claimant said, "No, I can bring new evidence to an appeal."[13]There was a letter of confirmation of the dismissal dated 13 February 2008, which expressly stated, in a sentence which both sides agree contained a typographical error which was well understood at the time and caused no confusion, "Therefore, your summary dismissal from DHL Exel Supply Chain on 21 December [2007] still stands."[14]I shall pause there in the consideration of the process, because I must turn to the finding by the Employment Tribunal Judge. In paragraph 23 of the Employment Tribunal Judge's Judgment he said this, "Although in my mind (and I have began looking back at the whole set of facts) it was clear that the effective date of termination was 21 December 2007 (indeed it was confirmed in correspondence as being so) I am satisfied that the Claimant was confused sufficiently but he was unsure about this. Not only was he unsure about the whole process, [but] on my findings from the evidence as presented to me I am not entirely sure that Ms Taylor and Mrs [Briden] were sure either. It was only following the conclusion of the rehearing on 8 February 2008 that the position would have been clear to the Claimant."[15]That is a finding by the Employment Judge, that until that date the Claimant and indeed perhaps at least certain representatives of the Appellant were unsure about the position, but that sureness certainly was achieved by the conclusion of that 8 February hearing. So that the Claimant, having previously had no belief because of confusion, now had a belief. It would seem clear from the recital of the unchallenged notes of the 8 February meeting, to which I have referred, and the letter of 13 February 2008 that that belief can only have been that he was dismissed, as he was being told, on 21 December 2007.[16]The Employment Judge, however, continues as follows, "He thought that that date was confirmation of his dismissal, that is 8 February 2008, and that the three months time limit had begun to run from that date. Although he was wrong about it I can fully understand why he would come to that conclusion. This is because of the degree of confusion undertaken by the Respondents themselves in conjunction with the Claimant's mental state at that time. 24. So for the reasons I have set out above I am satisfied that it was not reasonably practicable for the Claimant's complaint of unfair dismissal to be presented on or before 20 March 2008. It was in fact presented 8 days later on 28 March 2008."[17]What this means, therefore, is that the Tribunal was concluding that, although the three months was up, it was not reasonably practicable of the Claimant to have put in his application by 20 March, and that he had not delayed unreasonably thereafter. As to the latter, I referred to this earlier: there can be little doubt that, if indeed he remained of the reasonable belief that he was not dismissed on 21 December 2007 until after the expiry of the period on 20 March 2008, he acted punctually thereafter. There was no delay once he was given advice by his solicitor on 27 March.[18]What however must be established, given that the Employment Judge found as he did in relation to the state of mind of the Claimant, namely that he was previously unsure and was only sure as of 8 February, is that the Employment Judge was entitled to find (if he did) that the Claimant was of the belief after 8 February that he had been dismissed on 8 February , and that such belief was reasonable.[19]Mr Tatton Brown came to the hearing today armed with arguments in his Skeleton Argument that the findings of the Employment Judge in relation to the period prior to 8 February were perverse or unreasonable, because of what he said was in fact the clarity of the earlier correspondence, notwithstanding appearances to the contrary. I do not conclude that it is arguable that the finding of the Tribunal that I have referred to, namely that the Claimant was unsure till 8 February, is perverse and Mr Tatton Brown did not in the event pursue the argument before me. The platform on which the hearing today has been argued is expressly on the basis of the finding by the Tribunal Judge to which I have referred, namely:
"It was only following the conclusion of the rehearing on 8 February 2008 that the position would have been clear to the Claimant."
[20]I commented in the course of argument that I had never been a fan of the pluperfect conditional and the use of the words "would have been clear" is not entirely a matter of certainty. But it seems to me that what the Tribunal is saying is that, having been unclear before that date, the Claimant now was clear. The Tribunal is not saying, and not finding, that the Claimant remained in uncertainty after 8 February.[21]The issue then is whether the Employment Judge found(i) that the Claimant had the belief after 8 February that he was dismissed on 8 February and(ii) that that belief was reasonable. It certainly seems to me that he made the former finding. Indeed the Employment Judge almost says so in terms when he says:
"He thought that that date was confirmation of his dismissal and that the three-month time limit had begun to run from that date."
He does not in express terms say that he thought that his dismissal was 'on that date' (8 February), although Mr Harwood has made it clear that that was the case that was put forward by the Claimant. The Claimant was not suggesting that there was an appeal on that date and that he thought for some reason the time ran from the appeal. His case was that he believed that he had been dismissed on that date. It may be that the reluctance of the Employment Judge to say in terms that the Claimant thought that 8 February was the date of his dismissal is indicative of the fact that the Judge was not in fact finding himself in a position to spell out as clearly as he normally would a finding that this case did qualify for the extension. But even assuming, in the Employment Judge's favour, that he actually did find that there was a belief by the Claimant that the date of 8 February was the date of his dismissal he needed to go on to conclude that that belief was reasonable.[22]At this stage I should carry on with the history. There was on 5 March a hearing of the appeal and there are, again, notes of that appeal hearing which are not challenged by the parties. The notes record that the Chairman of the panel, Mr Brian O'Donoghue, explained what were the possible outcomes of the appeal, one of which was to uphold the original decision to dismiss; the others were reduction of the sanction, the making of further investigations or the taking of no action. Mr O'Donoghue (BOD) asked if there were any questions, and the following is recorded, "[The Claimant] asked about his status between the original disciplinary, where he was dismissed, and the rehearing of the disciplinary in February, shouldn't he have been reinstated until the outcome of the second disciplinary? BOD explained that the original disciplinary was the one where he was dismissed and the second disciplinary was a rehearing of the case to rectify any procedural issues with the first hearing and ensure that his hearing was fair and unbiased. The dismissal stood and remained effective unless the rehearing had found that it was wrong or unfair, in which case he would have been reinstated with no loss of service."[23]It is clear that the Claimant is not asserting that he had not been dismissed on 21 December; he is accepting, on the face of his question, that he was dismissed on 21 December but asking why that was so and why he had not been reinstated. Of course he had not been paid any remuneration since that date. The appeal is dismissed, and a letter is written on 12 March 2008 reciting that the Claimant had appealed against the decision to terminate his employment on 21 December. Reasons are given for dismissing that appeal and the letter concludes, "Having considered all of these points and come to the conclusions described above, we have, therefore, made the decision to uphold the decision to dismiss you. Therefore, in accordance with the company's disciplinary procedure you remain dismissed with effect 21 December 2007."[24]That date, 12 March, was still eight days before the expiry of the period, and there is no doubt that there would have been time to put in an application after that if it were the case that only at that date did the Claimant cease to have a belief or cease to have a reasonable belief. But Mr Tatton Brown submits that in fact there cannot have been a finding that the Appellant remained of the belief that he was dismissed on 8 February, if he had ever been of that belief, at least after 5 March, which would mean an even longer period in which he could have put in the application, prior to 20 March.[25]I return, then, to the conclusions of the Employment Judge. I have indicated that, notwithstanding the slightly difficult wording in which his conclusion is couched by reference to "confirmation of his dismissal", he has made a finding that the Appellant was not of the belief that he was dismissed on 21 December. But he has made the finding that matters only became clear on 8 February, and that he was of the belief that time only ran from 8 February, i.e. that he was dismissed as of that date. That is a finding which appears extremely strange in the light of the history, as I have recorded it. The Employment Judge says that, although the Claimant was wrong about that belief he, the Employment Judge, can fully understand why he would come to that conclusion, "This is because of the degree of confusion undertaken by the Respondents themselves in conjunction with the Claimant's mental state at the time."[26]As to the latter, any confusion there had been by the Appellant antedated 8 February when all had become "clear to the Claimant", and, as to the Claimant's mental state, it was not suggested to have been such as to affect his state of mind in any material way, so as to cause him to suffer from some mental illness or abnormality. The most that could be said about the mental evidence is such that some delay might have been excused. The finding was simply in paragraph 19:
"As well as having to face the distress of his dismissal I have heard evidence that the Claimant was going through personal problems at the same time and eventually separated from his long-term partner. Medical evidence was shown to me that he was seeing his General Practitioner and was having difficulty sleeping."
[27]It seems to me that the reference to his mental state might be no more than could support or justify a finding by the Employment Judge that, unlikely as it may seem, the Claimant was of that belief, namely that he had been dismissed as of 8 February. But, if and insofar as the Employment Judge has made that finding, he still needs then to go on and find that such belief was reasonable, and that it continued in place notwithstanding the apparent indications from what the Claimant himself said on 5 March.[28]Assuming, without finding, that the Employment Judge is to be taken to have found not only that he was of that belief as of 8 February but that he continued in that belief, notwithstanding what he said on 5 March - as to which I have no indication that such explanation was given by the Claimant, and certainly none appeared in his witness statement - there is the crucial need, in the light of the authorities, for a finding that such belief was and continued to be reasonable. That is not addressed by the Employment Judge, as Mr Harwood was driven in the end to concede. If and insofar as the sentence: "Although he is wrong about it I can fully understand why he would come to that conclusion" was of any relevance at all, I conclude that it is only in relation to justifying a finding that he did have the belief, but it is not a finding that he was reasonable in that belief.[29]A finding that someone understands why someone else would come to a conclusion is only the starting point for a finding that such conclusion is reasonable. There are no reasons given from which one can conclude that the Claimant had a reasonable belief that he was dismissed on 8 February and not on 21 December; no reasons are given as to why the Claimant was entitled to ignore what was said on his behalf by his representative on 8 February; why he did not pursue the matter on 8 February when his representative accepted the answer; why there was no response to, or lack of understanding if such there was of, the confirmatory letter of 13 February after the 8 February meeting; why he said what he did on 5 March or why, again, no steps were taken to respond to, or seek clarification of, the letter of 13 March.[30]Had the Employment Judge expressly been addressing whether there was and remained a reasonable belief, at least there would have had to have been some addressing of those points. But I am satisfied that in fact, whether because the Employment Judge simply was unable to articulate any finding in this regard or because he overlooked it, he omitted a crucial ingredient of the finding that he was required to make in order to grant an extension, namely that a belief after 8 February that the Claimant was not dismissed until 8 February was a reasonable one. Mr Harwood, therefore, in the end was driven to accept that there was no such finding and concentrated on submitting that the matter should be remitted, albeit to another Tribunal, to answer the unanswered question as to belief and in particular reasonableness of belief after 8 February.[31]Mr Tatton Brown submitted that this was one of those cases where remission ought not to take place because there was only one possible answer. This is not a finding of perversity. This is a finding that the question was not answered by the Employment Judge, and he contended that there was good reason why it was not answered, and that is because there was no answer. The Employment Judge found that the Claimant was dismissed on 21 December. The confusion prior to 8 February could not be relied upon in the light of the Employment Judge's own findings that all was clear on or after 8 February. The health position could not possibly go so far as to justify the unreasonable.[32]Mr Harwood accepted that perhaps the matter had not been fully addressed before and by the Employment Judge, but he submitted that there might be an answer which would enable an argument to be put forward that the creation of a belief on 8 February and its continuation thereafter was, notwithstanding all other appearances, reasonable. Once again he returned, in support of that proposition, to his case that there had previously been uncertainties, so that it might be thought to be reasonable for the Claimant to be unclear about the position as to dismissal after 8 February. All that would be arguable if it were not for the fact that the Employment Judge expressly found that the previous uncertainties had been resolved on 8 February and, for my part, I agree with him.[33]What, in my judgment, the Employment Judge would not have been able to find is that there was any reasonable basis for a belief after 8 February that the dismissal was anything other than on 21 December, as iterated, reiterated and indeed adopted by both Claimant and Respondent as from that date. In those circumstances I do conclude, not only that the Employment Judge did not find that the belief of that dismissal was on 8 February was a reasonable one, but that no Tribunal could reach that conclusion, certainly not after 5 March, which was plainly enough time to put in an application before 20 March.[34]In those circumstances I allow the appeal. I do not remit the issue to a different Tribunal as requested by Mr Harwood, and I substitute a finding that this application was out of time.