REMPLOY LIMITED v MS G A SHAW [2009] UKEAT 0452_08_1602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0452_08_1602Case No Appeal No. UKEAT/0452/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
REMPLOY LIMITEDAPPELLANTMS G A SHAWRESPONDENT
Before
His Honour Judge McMullenDate 16 February 2009
[1]APPEARANCES For the Appellant MR DANIEL BARNETT (of Counsel) Instructed by: Messrs Capital Law LLP Solicitors One Caspian Point Caspian Way Cardiff Bay CF10 4DQ For the Respondent MR STEPHEN HARDY (of Counsel) Instructed by: Messrs Simpsons Solicitors 3rd Floor Thorne House 36 Station Road Cheadle Hulme Cheshire SK8 7AB SUMMARY JURISDICTIONAL POINTS Extension of time: reasonably practicable 2002 Act and pre-action requirements An Employment Tribunal is entitled to hold that it is not reasonably practicable for a Claimant to present a dismissal claim while an internal procedure is ongoing, anticipating reliance on Regulation 15 of the 2004 Regulations. Such a finding can also cover a short period of time before the deadline expires: see Ashcroft . Separately, Regulation 15 is directly applicable only when the Claimant reasonably believes, up to the expiry of the three month deadline, that a procedure is ongoing. The deadline is then extended to six months. It has no application except to give the one-off extension from three to six months. When an internal appeal failed eight months after dismissal, reliance could not be placed on Reg 15 itself, or indirectly to say it was not reasonably practicable to present the claim in the first three months. Case remitted. HIS HONOUR JUDGE McMULLEN QC This case is about late presentation of a claim. I will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against a judgment of Employment Judge Slater sitting alone at an Employment Tribunal in Manchester with reasons sent on 21 August 2008.[3]The parties were represented at the Employment Tribunal but today instruct respectively Mr Stephen Hardy and Mr Daniel Barnett of Counsel. The Claimant's claims were for unfair dismissal and notice pay. They were presented out of time and a decision was made that they should be treated as within time. It is against that judgment that the appeal is brought.[4]The time is prescribed in Section 111 of the Employment Rights Act 1996 :
"111 Complaints to industrial tribunal (1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) … an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
[5]A similar time provision applies in relation to contract claims by reason of the 1994 Extension of Jurisdiction Order , article 7.[6]The issue relates to the extension of time which is given by the Employment Act 2002 (Dispute Resolution) Regulations 2004 , Regulation 15(2):
"Extension of time limits 15. (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."
The facts[7]The Claimant was dismissed by reason of gross misconduct on 21 September 2007. Application of Section 111 required that she present her claim by midnight 20 December 2007. She did not, but it is common ground that, at that time, she had reasonable grounds for believing that a procedure was ongoing to deal with her dismissal. Such a procedure was ongoing. This extended the three-month period to six months, which expired on 20 March 2008.[8]Before that, on 11 February 2008, an appeal meeting had been started but did not complete. It was reconvened on 7 May. On Friday 16 May, the Claimant's trade union representative received notice that the appeal was unsuccessful. On Monday 19 May, the union instructed solicitors, who presented the claim on 20 May 2008. Thus, it was two months beyond the extended six-month time period.[9]The Employment Judge heard no evidence. She considered documents. The principal submission was that it was not reasonably practicable for the Claimant to submit her claim until after notification of the failure of her appeal. Then solicitors acted promptly, the second working day after the notification of the failure of the appeal.[10]The submissions on behalf of the Claimant contained references to her state of health, (depression) and to her not knowing the time limits, but both of those were rejected by the judge and there is no cross-appeal. The sole submission, therefore, was that the Claimant was waiting until the outcome of the internal appeal before presenting her claim. The legal question was whether during the period of that delay it was reasonably practicable for her to present the claim.[11]The Employment Judge addressed herself to the relevant authorities, which are Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 and Ashcroft v Haberdashers' Aske's Boys School [2008] IRLR 375 . In addition, I have been referred to a judgment of HHJ Richardson in Royal Bank of Scotland v Bevan [2008] ICR 682 in which there is a discussion of a judgment of Lady Smith in the EAT in Royal Bank of Scotland plc v Theobald UKEAT/0444/06.[12]The Employment Judge followed the reasoning of Burton J, in Ashcroft and held that on 20 March, when the six-month time period expired, it had not been reasonably practicable for the claims to be presented. That time did not arise until the appeal was notified in May 2008. The Judge went on to say that she did not consider it reasonable to expect the Claimant to present the claim until after the outcome of the appeal. It is important to note that she used the word "reasonable" and not "reasonably practicable". She came to the same conclusion in respect of the breach of contract claim. The Respondent's case[13]On behalf of the Respondent, it is contended that Ashcroft was wrongly decided, or was wrongly applied in this case.[14]Mr Barnett submits that the introduction of the 2004 regime for both grievance and disciplinary procedures did not radically change the law as set out in Palmer , which is to the effect that the mere existence of an ongoing appeal procedure does not come within the not reasonably practicable exception to Section 111.[15]Secondly, the Judge erred when she used the word "reasonable" without coupling it to "practicable". Thirdly, the breach of contract claim does not go hand in hand with unfair dismissal since the extension in Regulation 15 does not apply in respect of a claim for breach of contract, which must be preceded by a grievance. If his submissions were upheld, he contended that there is sufficient material before me to enable me to make a decision and it would be unjust to the Respondent for it to face a contested hearing when at the previous hearing the Claimant had given no evidence. The Claimant's case[16]Mr Hardy contends that Burton J was correct in his approach to the 2004 regime. It did indeed change the landscape as perceived following Palmer and the Judge was correct to apply it. Albeit the Judge had used the word "reasonable" and not "practicable", this did not make the judgment itself unsound for she had got the correct test elsewhere.[17]If the appeal were allowed, it should be remitted to a fresh tribunal. Evidence could then be called on what it was that caused the Claimant to hold her hand until 20 May, two months out of time. The legal principles[18]It is common ground that the approach to the time limit in Section 111 is to be liberal in favour of the employee: see Marks & Spencer plc v Williams Ryan [2005] ICR 1293 CA.[19]Time limits in Employment Tribunals go to jurisdiction, unlike Limitation Act arguments which a defendant may or may not choose to raise: see my judgment in Secretary of State v Rance 2007 IRLR 665 para 41, distinguishing CPR Pt 16[20]An early illustration of reasonable practicability in the context of an ongoing internal appeal is found in Owen v Crown House Engineering Limited [1973] ICR 511. Using the language of practicability before reasonableness came into the statute, a claim was held not to be out of time where the employee's trade union had acceded to a request from the employer to hold their hand pending completion of internal procedures.[21]The approach to what is reasonably practicable where there is an ongoing appeal was set out by May LJ in Palmer (see above) in the following terms "31. However in Bodha v Hants Area Health Authority [1982] ICR 200 another division of the Appeal Tribunal presided over by Browne-Wilkinson, J (as he was then) disgreed in these terms:
'… There may be cases where the special facts (additional to the bare fact that there is an internal appeal pending) may persuade an industrial Tribunal, as a question of fact, that it was not reasonably practicable to complain to the Industrial Tribunal within the time limit. But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not "reasonably practicable" to present a complaint to the industrial tribunal.' 32 In the light of the passages from earlier judgments of this court which we have quoted in this judgment, we respectfully prefer the views on the effect of a pending internal appeal on the question whether it has been reasonably practicable to present a complaint within the time limit expressed by the Employment Appeal Tribunal in Bodha's case to those expressed in the Crown Agents ' [1978] IRLR 542 decision. 33 However, in Bodha's case the Employment Appeal Tribunal also said: '
The statutory test remains one of practicability. The statutory words still require the Industrial Tribunal to have regard to what could be done albeit what is practicable in an common-sense way. The statutory test is not satisfied just because it was reasonable not to do what could be done … Reasonably practicable means "reasonable capable of being done" not "reasonable".' If, in this dictum, the learned President was intending to limit the meaning of the phrase 'reasonably practicable' to that which is reasonably capable physically of being done, then on the authorities to which we have referred this we think would be too restrictive a construction. 34. In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories: compare Marshal v Gotham (1954) AC 360. In the context in which the words are used in the 1978 Consolidation Act, however, ineptly as we think, they mena something between these two. Perhaps to read the word 'practicable' as the equivalent of 'feasible' as Sir John Brightman did in Singh's case and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?' - is the best approach to the correct application of the relevant subsection."[22]A full account of the circumstances in which reasonable practicability will arise was given by Brandon LJ in Walls Meat Co Ltd v Khan [1979] ICR 52, 60 CA:
"… The performance of an act … is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance, the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments, making it not reasonably practicable to present a complaint within the period of three months if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers…"
[23]Thus, the law was settled prior to the introduction of the 2004 regime. The mere fact of an ongoing procedure is not sufficient unless special facts are adduced to show that it was not reasonably practicable to present the claim. Discussion[24]The 2004 regime radically changed what Burton J described as the scenario. In the trio of EAT cases to which I have referred, common features emerged. As it happens, Ashcroft was decided on 14 November 2007 and Bevan was heard on 24 October 2007 with judgment on 26 November 2007. Each judgment was made without reference to the other and there is a differing approach. In Theobald the Claimant was notified of the failure of his appeal between 28 and 48 hours before the primary deadline. In Bevan it was five hours and in Ashcroft six.[25]In all three, it was held that it was not reasonably practicable throughout most of the primary limitation period for the claim to be presented because there was reliance on the anticipation of an extension pursuant to Regulation 15. In Theobald there was also incorrect advice by an adviser.[26]The judgment of Burton J in Ashcroft contains this "18 …The Court of Appeal in Palmer addressed rival dicta in the Employment Appeal Tribunal in Crown Agents v Lawal [1979] IRLR 103, per Kilner Brown J, on the one hand that the pendency of an appeal should be a factor in the consideration as to a Notice of Appeal not being within the relevant time and in Bodha v Hampshire Area Health Authority [1982] ICR 200, per Browne-Wilkinson P to the contrary effect, and the issue was resolved by their preference for the latter proposition. The Court of Appeal bindingly concluded that a pending internal appeal should not have prevented the bringing of proceedings in the Employment Appeal Tribunal, and thus was not a relevant factor on the issue of reasonable practicability. 20 I could of course say that I am, if not bound, certainly persuaded by two decisions of the Employment Appeal Tribunal, both of them recent, to look similarly at the facts before me, and, if I did so, it would be plain, as Miss Tether concedes, that it was not reasonably practicable to bring the claim within those last six hours, and we would be looking at the period between 6 July and 11 August. But she rightly submits that the point was not addressed in either of those two cases and consequently either went by way of assumption or was simply not considered at all, because the issue had not been considered at the employment tribunal or, if considered, was not appealed. So I do address this now as a fresh point. I am entirely persuaded that the 2004 Regulations created a new scenario, such as to overtake the established position since Palmer . Not only was the whole purpose of the legislation to encourage dispute resolution, and such as to discourage rushing to issue proceedings, and indeed in the case of grievance procedures to place an absolute hurdle in the way of issuing proceedings, but if it was intended that Palmer continue to be binding, there would have been no point in regulation 15 at all. Regulation 15 answers the question, "What if an internal appeal is going forward and the result is not received until after the three months?" The answer would have been, but for an intended change of the law, "No problem, you issue your proceedings before the conclusion of the internal appeal", that is what Palmer said. In that case there would have been no need for Regulation 15(2). Regulation 15(2) appears to me to be plainly predicated upon the assumption that there will not be an application put in to the employment tribunal prior to the expiry of the appeal period. That was its purpose and that is in my judgment its effect. 21 In those circumstances I am satisfied that, although the law was not considered in either case, the result in both Theobald (EAT/0444/06) and Wolverhampton University v Dr Elbeltagi (EAT/0167/07) was correct, and that the position here should be that the Tribunal ought to have concluded that it was not reasonably practicable for the Appellant to have brought his proceedings before the expiry of the statutory period at midnight on 6 July, by virtue of the fact that until 6pm he had the anticipated protection of Regulation 15(2), and the express encouragement of the legislation not to bring proceedings pending the outcome of the internal appeal, and that it was not then possible, as Miss Tether accepts, for an application to be put in, in those last six hours. Miss Tether submitted that there might be some halfway house in which it would be concluded that Palmer is no longer prescriptive, but that it still ought to be considered as to whether there could have been a notice of application put in, notwithstanding the pendency of an internal appeal. I am satisfied that the legislation did not have that intention. The legislation is intended to encourage and facilitate a claimant not to issue proceedings. Thus thisAppellant, albeit no doubt because of the very absence of advice he may well have not been relying on the legislation, and those in his position, are entitled not to do so. I am satisfied therefore that regulation 15 effectively repealed Palmer . 22 I therefore allow the appeal, and remit the matter back to the Employment Tribunal to decide whether there should be a further extension after 6 July within section 111(2). I have helpfully had some assistance from both counsel, as requested prior to the hearing, as to the relevant authorities on the issue which will now face the Employment Tribunal, namely "within such period as the tribunal considers reasonable". I have been referred to Marley (UK) Ltd v Anderson [1994] ICR 295, Biggs v Somerset County Council [1996] IRLR 203 and Whitbread plc v Reese (unreported) EAT/1292-1293 1 December 1997 and those authorities make it plain that it is not the reasonable practicability test which is to be applied, but a broad one taking account all of the circumstances. That is the task which the Tribunal will now carry out. It seems sensible that this should be carried out by a different chairman, but I do not specifically so indicate. It seems to me likely that in the ordinary course this will be allocated as a relatively short case now fairly old, and therefore to be dealt with as soon as possible on the basis of whatever rota is in existence at the time."[27]Independently, HHJ Richardson decided Bevan and came to the same conclusion that it was not reasonably practicable to present the claim during the bulk of the primary limitation period. As in Ashcroft no argument was addressed that the Employment Judge was wrong in treating the five or six-hour period after that as meaning that it became reasonably practicable to present the claim then. So for the whole of the primary period it was not reasonably practicable to present the claim.[28]In none of the three claims was Regulation 15 engaged, for none of the Claimants could say in the light of the information that they received, albeit at the last minute, that they reasonably believed a procedure was ongoing in their case. Yet, the Claimants in Bevan and Ashcroft were rescued by extension of the not reasonably practicable provision to envelop the period when they knew the internal procedure was not ongoing but did not have time to get the claim in.[29]What is different about Theobald on Lady Smith's finding is that the Claimant, between 24 and 48 hours in advance of the deadline, was online with an online application form. She held that it became reasonably practicable for him to have presented his claim in the time before the deadline.[30]Returning then to Bevan , HHJ Richardson reflected on the statutory purpose behind Regulation 15:
" 21 It is convenient to start with the tribunal chairman's observation that the purpose of regulation 15 was to encourage parties not to start proceedings until internal procedures have been completed . 22 In general I agree with this observation. Indeed I can see no other discernible statutory purpose behind regulation 15. If the claim is one to which the statutory dismissal procedure applies, regulation 15 extends time so long as the employee has reasonable grounds for believing, when the normal time limit expires, that a dismissal procedure is being followed, even if it is not the statutory dismissal procedure. There would be no point in extending time in this way unless it was envisaged that it was both reasonable and desirable that an employee should delay the issuing of proceedings so long as he reasonably believed that a dismissal procedure was being followed."
He did, however, make it clear that this was not an unlimited period, for he said this:
" 23 I would, however, sound one note of caution. Regulation 15 extends normal time limits only for three months. Nothing in regulation 15 suggests that its purpose was to encourage parties to delay the commencement of proceedings beyond that time. So, in an unfair dismissal claim, the statutory intention is that after six months the claim should be commenced even if an employee reasonably believes that a procedure is still being followed. 32 To my mind the tribunal chairman was fully entitled to conclude that this was a case where, exceptionally, it was not reasonably practicable for Mr Bevan to present his claim. Mr Bevan reasonably believed until shortly before the expiry of the deadline that the appeal procedure was ongoing, and was expecting that he would present his claim if and when he learned that the appeal procedure was unsuccessful. Like the chairman, I have concluded that this is a perfectly reasonable stance for an employee to take-for it is plainly envisaged by the 2004 Regulations that procedures should be able to take their course before proceedings are commenced. There is, of course, one important caveat to that proposition. It applies only so long as the additional three -month period does not elapse, for nothing in the new rules gives any encouragement to delaying the making of a claim after the additional three-month period elapses."
He also had the advantage of reading Lady Smith's judgment in Theobald and came to the conclusion that the key feature of that case was not simply the existence of internal procedures, but the advice given by the Claimant's advisers. Thus, the reasoning of the Employment Judge in our case can be fully understood in the light of Ashcroft although she was not shown Theobald or Bevan . Conclusion on the appeal[31]The second submission relates to the Judge's use of the word "reasonable". I agree with her when she says:
"I do not consider it reasonable to expect the Claimant to have presented her claim to the Tribunal until after the outcome of the Appeal was notified to her."
[32]It is consistent with every statement in this jurisdiction since at least 1973, that parties are encouraged to resolve their differences before resorting to Employment Tribunals, but the correct test is one of reasonable practicability. She addressed the correct test on at least four occasions in the course of her judgment, making it clear that she was looking at what is not reasonably practicable. The fact that she misses out "practicable" from this last formulation does not vitiate the judgment, provided the gist of the judgment is clear and there has been a correct self direction. Infelicitous language later in her judgment does not make the judgment wrong, see Jones v Mid-Glamorgan [1997] IRLR 685 CA.[33]The point is whether or not it was justifiable to rely on Ashcroft . The starting point is what I hold to be the very limited scope of Regulation 15. I agree that the purpose of the 2004 regime is to make even clearer than it was since 1973, that parties should try and resolve their disputes between them. Indeed, as Burton J says:
"There is a bar on access to the tribunals for Claimants who have not taken elementary steps in the grievance procedure and there are financial consequences for employers, or it may be employees, who do not complete the relevant procedures."
[34]Regulation 15 encourages that to happen, but it is of utility only once. It provides an extension of time from three to six months in an unfair dismissal case. It does nothing more. It does not depend upon there being a procedure actually in place, but only upon the reasonable belief that it is in the mind of the employee, see Towergate v Harris [2008] ICR 1200 , the Court of Appeal by a majority upholding my judgment reversing the Employment Tribunal in that appeal.[35]It is limited to a moment in time i.e. at the time the primary limitation period expires. If the Claimant has that reasonable belief she gets an extension of three months in which to bring the claim. It is plainly envisaged that three months is sufficient for any internal procedure to be exhausted. If it were the intention of Parliament to implement a regime under which claims need not be brought while any internal procedure is in play, it would have said so by an amendment to Section 111. The best that can be said, as indeed Burton J acknowledged, is that there is an implication. But it would require more than an implication from a regulation directed at one specific period in time and providing for one specific extension of time to amend the settled law set out in Palmer .[36]As it happens, it was not necessary for the judgment in Ashcroft to deal with this matter because it had been handled under existing provisions dealing with extensions of time from the primary limitation period. The trio of EAT cases involved notification of failed internal appeals within the primary limitation period. None deals with the facts of the present case, which is notification after the expiry of the second (extended) limitation period. That is the unique issue for decision in the appeal.[37]Thus it is that I respectfully disagree with the holding of Burton J that Palmer was repealed as a result of Regulation 15. I prefer the position adopted by HHJ Richardson. It was not necessary for his decision to make any comment about Regulation 15(2) since it did not apply in his case either. But he is clear as to the wording of Regulation 15, which is that it is limited to the first period of time and has no life thereafter. It is used once at midnight at the end of the first three-month period and that is its utility.[38]Separately, however, a factor when considering whether it is not reasonably practicable is that a Claimant was anticipating use of Regulation 15. That is what I consider to be the ratio of both Burton J's and HHJ Richardson's judgments. They both say so, as a matter of fact, and that is the exemplification of the Parliamentary intent. Since the outcome of an appeal has not been notified to the Claimant until towards the very end of the primary limitation period, it is reasonable to expect them to be holding their hand on a tribunal claim in anticipation of the result and in anticipation of their being able to take advantage of Regulation 15(2). It is therefore correct to hold that where that is the view of the Claimant's case, it is not reasonably practicable for the claim to be presented. Thus, I accept that where a claim is not brought before that time, it may not be reasonably practicable to have done so.[39]This does not go on forever. As Mr Barnett has reminded me, there are many sophisticated post-dismissal procedures in place. One has only to look at the Civil Service Appeal Board, for example, which may take a year or so following the dismissal. It cannot have been the intention of Parliament to allow an open ended time for the presentation of a claim during the passage of an internal procedure. As I have said, it would have been open to Parliament to amend Section 111 to provide just that, but it did not do so. Parliament intended to go only so far in its support for voluntary resolution of disputes about dismissal when it comes to extending time and that was embodied by Regulation 15(2).[40]The outcome is that the Employment Judge erred when she regarded herself as bound to apply Ashcroft to a situation where the primary limitation period had expired, was properly extended to six months and then no claim was made for a further two months. She directed herself in accordance with Ashcroft , which was not binding upon her, for it was not applicable to a person who has already passed the primary limitation period. I am not persuaded that the law requires an open ended facility for the bringing of a claim for so long as internal procedures are in place. Disposal[41]The next issue is whether I should deal with this matter since I have detected an error, or should refer it to an Employment Tribunal. I have considered carefully the principles in Sinclair Roche and Temperley v Heard (No 2) UKEAT0637/05 and F & C Asset Management Limited v Switalski UKEAT0423/08 and agree that these days remission to the same Employment Tribunal is unusual.[42]There is no particular utility in sending it back to this Employment Judge. I will send it to a different Employment Judge with a direction that what is required is a finding on evidence if there be it, as to the reason why the Claimant did not present her claim in time and if it is merely because she was awaiting the outcome of the procedure, that is unlikely to meet the test in Palmer . What would be required, I perceive, is something more than simply observance of the procedures, a situation envisaged in Palmer additional to the bare fact of the internal appeal, or some sort of encouragement, as was seen in Owen v Crown House .[43]I then turn to the contract claim. There is force in Mr Barnett's argument that the contract claim is different because it does not have the automatic extension. It is sufficiently tied up with the approach to consideration of not reasonably practicable for unfair dismissal for me to allow the appeal and remit that too.[44]I acknowledge the submission that it might appear the Claimant is having an additional opportunity, but once a re-hearing is ordered it is proper in this case for it not to be restricted in any way. The Claimant should be at liberty to present her case and the burden of proof is upon her to show that it was not reasonably practicable to present her claim. The appeal is allowed and the claim remitted.