SODEXO HEALTH CARE SERVICES LIMITED v MISS R HARMER [2009] UKEAT 0079_08_1007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0079_08_1007Case No Appeal No. UKEATS/0079/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
SODEXO HEALTH CARE SERVICES LIMITEDAPPELLANTMISS R HARMERRESPONDENT
Before
Lady SmithDate 10 July 2009
[1]APPEARANCES For the Appellant MR A SOLOMON (of Counsel) Instructed by: Sodexo Healthcare Services Ltd Legal Services Solar House Kings Way Stevenage SG1 2UA For the Respondent MR G HARMER (Representative) SUMMARY Unfair dismissal, time limits. Procedure. Claim 23 days late. Whether reasonably practicable to have presented it within the three months period. Procedure adopted by Tribunal not appropriate. Tribunal judgment that it was not reasonably practicable for the complaint to be presented within the three month period set aside and claim dismissed. THE HONOURABLE LADY SMITH INTRODUCTION This is an employer's appeal from a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge Mr R G Christie (sitting alone), finding that it was not reasonably practicable for the claimant's complaint to be presented before the end of the period of three months following her dismissal. I will continue to refer to parties as claimant and respondents.[2]The claimant was dismissed by the respondents from her employment as head chef on 5 December 2007. She presented a complaint of unfair dismissal to the Employment Tribunal on 27 March 2008. That claim was, accordingly, 23 days late, ( Employment Rights Act 1996 s.111(2)(a)). That being so, the Tribunal had no jurisdiction to consider it unless the claimant could bring herself within the exception provided for in s.111(2)(b) by showing, firstly, that it was not reasonably practicable for her to present the complaint before the expiry of the three month period on 4 March 2008 and, secondly, that the claim was presented within a reasonable time after the expiry of the time limit. Section 111 time bar issues are often and conveniently determined by Employment Tribunals under the pre-hearing review procedure provided for by Rule 18 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and that was the course that was followed in this case. Rule 18(1) provides:
"Pre-hearing review are interim hearings"
. Rule 18(5) empowers the Tribunal to determine issues of substance at a pre-hearing review notwithstanding the interim nature of such a hearing.[3]Evidence can be led at a pre-hearing review and, in the absence of agreement between the parties as to the relevant facts, a Tribunal could be expected to be in difficulty so far as making findings in fact are concerned if it did not hear evidence from witnesses. Procedure[4]The claimant presented her form ET1 to the Employment Tribunal on 27 March 2008. The respondents responded with their form ET3, in which they raised the issue of time bar, on 29 April 2008. By letter dated 6 May 2008, the Secretary to the Employment Tribunals at Aberdeen wrote to the parties in the following terms:
"I refer to the above proceedings. I am directed by Employment Judge Hosie to ask if your (sic) agreeable to the pre-hearing review on the issue of time bar be (sic) dealt with by way of written representation. You should reply by 13/05/08."
The parties acceded to the procedure proposed. There then followed an exchange of e-mail and fax correspondence between the parties and the Employment Tribunal. No oral hearing took place. At one point, the Employment Judge, Mr Christie, issued a list of five questions to the claimant, drafted by him without prior reference to the respondents, and he issued a further list of questions by e-mail in response to an e-mail from the claimant. The procedure became cumbersome and it is evident that there were real difficulties in achieving a proper focusing of the relevant issues.[5]It is, accordingly, not surprising that the Employment Judge records in paragraph 1 of his judgment that he did not find the procedure to be entirely satisfactory:
"I never find this to be entirely satisfactory since one is never really confident of having been provided with all of the factual details which in an oral hearing one would have a better chance to hear and take into account."
What is surprising is that judging by the way his comment is expressed, it appears to be a procedure that is followed in the Employment Tribunal where he sits with some regularity. He also indicates that parties "chose" to present their cases by means of written submission but that is not, strictly, correct. As I have noted, the Tribunal asked them to agree to proceed in that way without offering them any other option.[6]The Employment Judge then suggests that there was no actual conflict on the relevant facts. However, having read the exchanges between parties and the Tribunal, it seems plain to me that the respondents did not accept that the reason for the claimant's late presentation of her claim was as she said it was. They make that clear, for instance, in their fax of 28 May 2008. Not surprisingly, they go on in that and in other items of correspondence to present an argument as to why, on the claimant's assertion as to the facts, the Tribunal should find that it was reasonably practicable for her to present her claim within the time limit, but that was in the overall context of their not accepting her account.[7]The Tribunal did not actually made any findings in fact although it would seem that the intention is to regard what they describe as "background circumstances" as the facts in the case. However, the Tribunal has not explained how it felt able to proceed on the basis that what the claimant wrote in her e mails was factually correct in circumstances where(a) it was not accepted by the respondents.(b) it did not constitute evidence given on oath,(c) it was not tested by cross-examination, and(d) the Tribunal had not had the opportunity to assess the claimant's evidence by seeing and hearing her give it, in person.[8]The procedure adopted in this case is a matter of concern. Rule 18 (1) provides that a pre hearing review is 'a hearing'. Important matters can be determined at a pre hearing review. A fundamental issue may be raised and determined with the result that the claim is brought to an end. To put it another way, a final decision on the appropriate administration of justice in the case may be made. That being so, it is important to bear in mind that it is a general principle of constitutional importance that the administration of justice should take place in an open hearing. As Lord Diplock observed in Attorney General v Leveller Magazine Ltd [1979] AC 440 at p. 450 :
"If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness of idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice …requires that proceedings in court should be held in open court to which the press and public are admitted."
Similar observations have been made by the European Court of Human rights in relation to Article 6 of the European Convention on Human Rights : "The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6…This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6:1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention." (Diennet v France (1995) A 325 –A, paragraph 33) Thus, the general rule is that all hearings should take place as "hearings", with oral exchange including the leading of evidence where required, and exceptions to that rule require to be carefully considered and justified. When doing so, convenience is not the only or paramount consideration. I mention convenience since I recognise that in the present case the Employment Judge mentions geographical location as having been a problem (the claimant's address was given as in Shetland) and it may well have been that factor that caused him to lose sight of what procedure ought to have been followed.[9]In the event, the Tribunal proceeded to consider the reasonable practicability issue as if it had found the claimant's challenged evidence to be credible and reliable when it was not in a position to do so . There should have been a hearing. Further, the extent to which the Tribunal questioned the claimant via its emails was not appropriate, particularly where the respondents had no opportunity to cross examine her.[10]I do not need to determine the appeal on this procedural issue as I am satisfied that it is well founded in other respects. If, however, it were the only issue in the appeal, I would have upheld it on that ground alone. Background circumstances[11]I use here the same sub-heading as used by the Tribunal, not by way of indicating that these were findings in fact but that these circumstances were, in short, what the claimant's case amounted to, at its highest.[12]There was a disciplinary procedure prior to her dismissal in which the claimant was assisted by Mr Henry, a trade union representative. He attended with her at a disciplinary hearing on 4 December 2007 and an appeal hearing on 22 January 2008. By letter dated 12 February 2008, the claimant was advised that her appeal had been unsuccessful. In her communications with the Tribunal she advised that she received that letter on 18 February 2008. In her response to this appeal, she states that she received the final letter from her final appeal on 15 February 2008. Whichever is the correct date, it is evident that there was still about two weeks of the three month time limit left to run from the date that she knew her appeal had not been successful.[13]The claimant thought that she had three months from 12 February 2008 to lodge a complaint with the Tribunal. The reason that she gave for that belief was:
"The reason behind me applying for a Tribunal after the three month deadline was that I went by what my Union Rep told me. I did ask him about applying for a tribunal whilst we were going through the appeals and he said to me that I couldn't apply for one until I had exhausted all other routes, eg. Appeals, to clear my name as it was the last resort. So, going by what he said I thought that I had three months after my last appeal date and not my dismissal date to apply."
[14]The claimant did not ask Mr Henry about time limits. Mr Henry did not mention anything about time limits. The claimant knew about time limits herself. She said, in one of her e mails:
"I can remember reading about a three month period in all the info I was checking through at the beginning of the appeal but I assumed it was after the final decision going on the info my rep had said to me about the Tribunal."
The Tribunal's judgment[15]The Tribunal considered the terms of s.111, the terms of regulation 15 of the Employment Act 2002 (Dispute, Resolution) Regulations 2004 , and the cases of Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, Palmer v Southend-on-Sea Borough Council [1984] ICR 372, Ashcroft v Haberdashers Aske's Boys School [2008] ICR 6143, Royal Bank of Scotland PLC v Theobold UKEAT/0444/06, and London International College Limited v Sen [1993] IRLR at 333.[16]The Tribunal found that the claimant proceeded on the basis of mistaken advice in circumstances where she herself was left with responsibility to prepare and present the complaint to the Employment Tribunal. At paragraph 38 the Tribunal comments:
"The claimant knew on 18 February that the internal appeal procedure was finished, and that was still some two and a half weeks before the statutory deadline, but in her state of knowledge the calculation of the three month period began only then. The claimant had no conception that that two and a half weeks and the date of 4 March would have any significance and, as far as I can see from the circumstances, no reason because of the advice she had been given to be looking out for them. I cannot make any finding on why her Trade Union Representative came to form the misconceived view that he had, since by agreement between the parties I was not hearing oral evidence. Further, since it was the claimant herself who was to handle the presentation of the complaint I am concerned really only with her state of mind. That state of her understanding continued well beyond both the end of the internal appeal process and the expiry of the normal statutory time limit. Neither of these events could have effected any change to her state of mistaken understanding and indeed she remained thus misconceived beyond the point when she actually did present her claim form on 27 March because she was still acting under the mistaken advice. Her mistaken belief was only corrected by a solicitor whom she consulted later. It follows, following Theobald, that I conclude that under section 111(2) ERA, although in the two and a bit weeks following the end of the appeal, it would have been feasible for the claimant to present her complaint (as it no doubt would have been before then) it was not in my view reasonably practicable to have done so."
[17]The Tribunal went on and found that the claim was in fact presented within a reasonable period thereafter. The appeal[18]After commenting on the procedural flaws to which I have referred, Mr Solomon submitted that the Tribunal had erred in law in its approach to the question of reasonable practicability. Firstly it was settled law that negligence or delay by an adviser is ascribed to the claimant; Dedman v British Building and Engineering Appliances Limited . Secondly the principal that lay behind the Dedman line of authorities was not dependent on the adviser in question being a solicitor, nor even dependent upon his being skilled; Ashcroft v Haberdashers Aske's Boys School . Thirdly, advice from a trade union representative is treated in the same way as advice from a solicitor; London International College Limited v Sen ; Ashcroft v Haberdashers Aske's Boys School The claimant was not entitled to rely on the advice she had received and should not have been excused in the way that the Tribunal excused her. Further, the Tribunal should not have followed the case of Royal Bank of Scotland PLC v Theobold . It should have taken account of that case being criticised in Ashcroft . Further the position of a trade union representative was not to be equated with that of a Citizen's Advice Bureau which is what it appeared to have done. Finally, the claimant had not actually received negligent advice as to time limits. The only factor that caused the claimant to believe that there was a further three month period available to her once the appeal process was finished was her own failure to make proper enquiries.[19]In these circumstances Mr Solomon moved the appeal should be allowed and a finding substituted that the claimant did not present her claim within time, that it was reasonably practicable for her to have done so and that there should be no extension afforded to her.[20]The claimant's father represented her. Having indicated that he and his daughter had only received the authorities bundle two days prior to the appeal hearing, I offered to give him time to consider them further before addressing me but he declined the offer.[21]Mr Harmer accepted that there was much advice available in the public domain. He referred to the claimant having looked at the ACAS website prior to the appeal process but having found that it was ambiguous so far as the three month time limit was concerned. He referred to the fact that his daughter gave priority to her seeking alternative employment after her appeal was unsuccessful and also to the fact that the claim was only about one month late. Discussion and decision[22]As I have already indicated, I have serious reservations regarding the procedure that was followed in this case and would have been prepared to uphold the appeal on that basis alone. However, I have also considered matters on the basis of an assumption that the claimant's case, at its highest, is, factually, as she has set out in the various e mails she sent to the Tribunal.[23]The Tribunal approached this case on the basis that it was a "defective advice" case. By that, I mean a case where a claimant asserts that the late presentation of the claim was caused by defective advice. But that is not this claimant's position. What she says is that her adviser, who was her union representative, told her that she could not apply to the Tribunal until she had exhausted the appeal process. He was not asked about time limits. He did not give advice about time limits. The claimant, who accepts that she had read about the three month time limit, assumed that it would not start running until the end of the appeal process. That was her assumption and she and only she can be held responsible for it. There is no indication of her having made any enquiries about the matter, notwithstanding her knowing that there was a three month time limit, either whilst the appeal process was ongoing or when it finished, as could reasonably have been expected of her. This was not a case of a claimant who was totally ignorant of the existence of time limits. Equally, this is not a case of a claimant who either sought or received advice about time limits. Nor is it a case of a claimant who, like the employee in Dedman , had handed over the responsibility of presenting her claim to her adviser.[24]In these circumstances, the Tribunal was wrong to approach the case as one which fell into the "defective advice" category. I do not, accordingly, propose, in this judgment to enter any discussion of the principles which apply in such cases save to note that in the light of Mr Solomon's submissions, I can see that paragraphs 27 to 29 of my judgment in Royal Bank of Scotland PLC v Theobold do require reconsideration. In my own defence, I point to those observations being obiter, not absolute in nature and to the stress that I sought to place on the need to recognise that the question in all of these cases is essentially a question of fact. Whilst I can see that there may be circumstances where a claimant who has received defective advice from a relevant adviser may, notwithstanding that advice and the normal rule that the fault of such an adviser is also the fault of the claimant, may be able to qualify for an extension of the time limit, it will always be a matter of examining the particular facts and circumstances of the individual case. That, plainly, is what the statutory provisions anticipate.[25]Had the Tribunal approached this case correctly, it would have gone on to ask itself whether, in the circumstances, the claimant was reasonably ignorant of the time limit in her case being due to expire on 4 March 2008. The only answer to that question was, no. The cause of her ignorance was assumption on her part which was not induced by any advice or information given to her about time limits and which was made in circumstances where she made no enquiries into the matter notwithstanding an awareness of the existence of the three month time limit. There was no basis on which the Tribunal could properly grant the extension sought.[26]I readily appreciate that this result will be disappointing to the claimant but time limits for applications to Tribunals are strict for good reasons and the "reasonable practicability" test that claimants have to satisfy where they present late claims has been devised in the interests of justice, taking proper account of the need to be fair to both parties. Disposal[27]In these circumstances, I will pronounce an order upholding the appeal and dismissing the claimant's claim.