MR J LOCKE v TABFINE LTD T/A HANDS MUSIC CENTRE [2010] UKEAT 0517_10_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0517_10_2911Case No Appeal No. UKEAT/0517/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J LOCKEAPPELLANTTABFINE LTD T/A HANDS MUSIC CENTRERESPONDENT
Before
His Honour Judge HandDate 29 November 2010
[1]APPEARANCES For the Appellant MR T SAMUEL (of Counsel) Instructed by: Kingston & Richmond Law Centre Siddeley House 50 Canbury Park Road Kingston KT2 6LX For the Respondent MR A HAGERTY (Trainee Solicitor) Qdos Consulting Ltd Qdos Court Rossendale Road Earl Shilton Leicestershire LE9 7LY SUMMARY JURISDICTIONAL POINTS – Extension of time: reasonably practicable The Employment Tribunal had correctly directed itself that the evidential burden of proving under section 111(2)(b) of the Employment Rights Act 1996, in cases where it is it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three months, that it was reasonable not to have commenced proceedings before the date they were in fact commenced is on the employee. But where the employee adduces some evidence (even if it is untested hearsay evidence) to explain the further delay, such evidence ought not to be rejected unless it is contradicted by other evidence or is otherwise incredible. Here evidence that the employee had recovered very well from extensive surgery did not contradict his evidence that he was very weak in the weeks after the operation and, as there was nothing incredible about his account, the Employment Tribunal had misdirected itself as to what was required in order for it to be satisfied; the appeal was allowed and the Employment Appeal Tribunal substituted a finding that it had been reasonable for the employee not to commence proceedings until the date he did so. HIS HONOUR JUDGE HAND QC This is an appeal against the judgment of the Employment Tribunal, comprising Employment Judge Nash sitting alone at London South, on 8 June 2010. The written judgment was sent to the parties and entered in the register on 8 July 2010.[2]Judge Nash held that it was not reasonably practicable for the Appellant to have commenced his proceedings complaining of unfair dismissal and in relation to holiday pay a claim, which the Employment Tribunal was prepared to characterise as a breach of contract case, within the time stipulated by statute for doing so.[3]Because, however, the Appellant did not start the proceedings within such further period as the Employment Judge thought reasonable, he held that the Employment Tribunal had no jurisdiction to hear the complaints and consequently they were dismissed.[4]The Employment Judge concluded that the effective date of termination in this case was 11 November 2008. The ET1 form was presented on 25 July 2009, just over eight months later. Section 111(2) of the Employment Rights Act 1996 , provides that:
"Subject to the following provisions of this section, an employment 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."
Although governed by a different statute, the same concepts also apply to the breach of contract claim.[5]The issue in this case was whether, if it was not reasonably practical to bring the complaint within three months of 18 November 2008, was it reasonable to leave it as late as July before lodging the ET1 form?[6]The facts found by the Tribunal at paragraphs 8 to 20 of the judgment can be summarised by saying that the Appellant had worked in the Respondent's music shop for over nine years when allegations were made in October 2008 that he had been acting in competition with the Respondent. An investigation commenced but disciplinary proceedings were postponed when the Appellant became unwell. He was diagnosed as suffering from cancer, early in November 2008.[7]By a letter dated 11 November 2008 he was dismissed. He appealed and the appeal was, in turn, dismissed by a letter of 22 November 2008. He commenced chemotherapy and radiotherapy in December 2008 and had treatment each week day from then on until 21 January 2009. He remained very unwell and underwent extensive surgery in April 2009. By late May he was being described as having made a good recovery in a letter written by a locum consultant oncologist, Dr Rao, from the Royal Marsden Hospital, to Dr D'Souza, who I infer was Mr Locke's general practitioner. It is worth quoting from it. It refers first of all to the patient and then gives this diagnosis:
"November 2008 T4N2 rectal adenocarcinoma at 4cm. EMVI positive threatened CRM. Resection en-block of tumour in rectum and prostate, 7th April 2009. Moderately differentiated adenocarcinoma of large bowel, ypT3 NO (0/12)MX. Resection margins tumour free. I reviewed Mr Locke in clinic today. I am pleased to say that having received chemo-radiation followed by surgical resection of his rectal cancer he is making a remarkable post-operative recovery. He remains performance status 1 with some occasional abdominal pain but is otherwise quite well and generally managing his stomas. [1] His appetite has not returned yet and he has lost some weight but he is managing to eat small amounts. Examination today revealed a mid-line abdominal scar, which has healed well and his stomas appear healthy with no evidence of inflammation. I discussed further management plan with the patient today and explained that based on his pre-operative staging I would recommend adjuvant chemotherapy. I did discuss the option of FOLFOX and Capecitabine with the patient today. As the patient plays the guitar and does this by profession, he would prefer not to have peripheral neuropathy and I have concurred with this. We therefore plan to treat him with Capecitabine for a total of six months and I have been through the toxicities relating to this, which includes but is not limited to myelosuppression including infection, which can be life threatening, diarrhoea, palmer plantar, erythema, mucousitis, and more rarely coronary artery, vasospasm including angina and myocardial infarction, anterior venous, thrombo-embolism, treatment related mortality in the range of 1-1.5 per cent and treatment failure. The patient requires post-operative CT scan in the first instance, which I will arrange as well as routine bloods and we will review him again with a view to commencing chemotherapy once he has read the written information regarding this and undergone further investigations."
So the reference to recovery is set in the context of an explanation of the daunting and difficult treatment, which lay ahead,[8]The Appellant himself did not appear at the Employment Tribunal. A witness statement made by him was submitted and scrutinised by the Employment Judge. At paragraph 2 of the witness statement the Appellant had said this:
"I am still undergoing daily anti-coagulant injections, at my GP surgery, for the Deep Vein Thrombosis caused by my cancer/chemotherapy. My general health is such that I am not well enough to travel, or to attend the Employment Tribunal. I am sorry that I cannot attend the Pre-Hearing Review."
[9]His witness statement dealt with many aspects of the case including his medical history from the late autumn of 2008. I can confine further quotation from it to paragraphs 17 to 20. They read as follows:
"17. I had the surgery on 07 April 2009. After the surgery it was a long physical fall. I was in hospital for 17 days. When I got home I had to manage by myself. I had to get used to the urostomy and colostomy bags. I was still having diarrhoea, and I would frequently find myself needing to empty my bag urgently. This limited my ability to leave my home. I was very frail physically - I was told I could not lift even small items like a kettle. If I went to a local shop I could only carry a couple of items home. My doctors told me that it would be 4 - 6 months after the surgery before I started to feel reasonably normal again. 18. In June 2009 I had another scan. This showed that the cancer was still present. I started chemo-therapy again. This chemo lasted for six months. 19. Also in June 2009, I developed a Deep Vein Thrombosis in my leg. This set me back physically. It was very painful. I started on daily anti-coagulant injections to thin my blood, and to disperse the clot. I had to attend my GP surgery to have the injections, which have to be administered at the same time every day. Very obviously, having these injections, and chemo, rendered me unable to do anything else. Apparently the anti-coagulant slows your heart, and slows your metabolism down, as does my heart medication. This makes you more tired. The Deep Vein Thrombosis coincided with the second week of my chemo, and it just made me regress physically. 20. Very slowly I started to feel better. It was only at the end of July, about 3 months after the removal of my bladder, colon and prostate, that I felt well enough to contemplate something as complex, upsetting and stressful as seeking advice about my rights and submitting an ET1. I suppose that, as time went on, I was able to venture further from my home, and I was better able to deal with my colostomy and urostomy bags. I became more composed and able to concentrate."
[10]As a result of advice given at the Citizens' Advice Bureau in Kingston towards the end of July the Appellant lodged the ET1 form on 25 July 2009. He deals with this in his witness statement at paragraph 21, but because the matter is not controversial and is dealt with by the Employment Judge recitation of paragraph 21 is not necessary.[11]By the time of the Employment Tribunal hearing on 8 June 2010, the person who had taken the decision to dismiss had unfortunately died. As I have already mentioned, the Appellant said he was too ill to attend; he was represented by Ms Bastin, who is described as an advocate in the judgment. The Employment Tribunal noted that it was regrettable he had not attended. This is referred to at paragraph 25 of the judgment in these terms:
"The Tribunal noted that the burden of proof in this matter lay on the Claimant and the absence of the Claimant giving evidence in person and to be examined was to be regretted. The Tribunal also noted that there was no specific medical evidence stating that the Claimant was unable to attend. The Claimant's case was not that he had been ignorant of the law but simply that he had been incapacitated by a combination of physical and mental factors and therefore it was not reasonable and practicable for him to present his claim and it was not reasonable for his claim to be presented until 25 July. The substantial cause according to the claimant for his illness (sic). There was no evidence before the Tribunal to suggest that he had taken any steps prior to late July in respect of Employment Tribunal proceedings."
[12]Having referred to a series of authorities listed at paragraph 27 of the judgment, the Employment Judge started from the premise that "time limits are strictly enforced", see paragraph 28. But having asked himself whether the Appellant was at fault for not having brought a claim within the three-month period he concluded he was not and therefore it had not been reasonably practicable for the Appellant to do so (see paragraphs 28 to 32 of the judgment).[13]The Employment Judge then looked at the period that followed the expiration of the three-month time limit. Given that the Appellant was not present at the hearing, the only material available to the Employment Tribunal was his witness statement and the medical reports. At paragraphs 34 to 38 of the judgment, the Employment Judge concluded that it had been reasonable for the Appellant to take no steps in relation to the claim before his operation on 7 April 2009. But for a period commencing on, or perhaps before 20 May 2009 and ending on some date in June 2009 when he recommenced chemotherapy, the Employment Judge being unable to say exactly when that had happened, he was found to be in a position where he could have presented a complaint to the Employment Tribunal.[14]In case the summary in the previous paragraph is in any way inadequate I direct attention paragraphs 36 to 39 of the judgment, which read:
"36. The Tribunal could not find any evidence as to when in June the Claimant was diagnosed with deep vein thrombosis requiring daily injections and with further chemotherapy. The Tribunal also did not know how long before 20 May the Claimant had been quite well and therefore did not know over what period there was between the Claimant's recovery from his operation on 7 April and his starting anticoagulant injections and more chemotherapy. The Tribunal noted medical evidence that following the second series of chemotherapy he suffered nausea and diarrhoea which resolved later. The Tribunal noted that medical letter of 12 April 2010 which stated that the Claimant coped generally well with the second bout of chemotherapy. The Tribunal noted that the Claimant was able to attend the CAB in late July although he was still undergoing chemotherapy and having daily injections. The Tribunal however noted that the Claimant contended he was still too unwell to attend a hearing in June 2010. 37. The Tribunal had very considerable sympathy for the Claimant's medical condition, however the Tribunal reminded itself that the test in this matter is not one of reasonableness but of reasonable practicability and the time limits in general was strictly enforced. Five months is a lengthy period over which to extend time. The Tribunal could find no specific evidence apart from the Claimant's own witness statement on which he could not be examined that the Claimant was unable to present a claim for a period starting on 20 May 2009 (and perhaps noticeably earlier) and sometime in June when he started anticoagulant injections and further chemotherapy. The Tribunal also noted that he was able to attend the CAB and start action in late July although the chemo and injections were ongoing. The Tribunal could also find no medical evidence to address the question of why the Claimant became able in late July to bring a claim apart from a general sense that he got slowly better. The Tribunal noted that the burden of proof in this matter is on the Claimant and that the claim in this matter was 18 months old when the Claimant had been unable to provide any medical evidence to suggest when he might be able to attend a hearing. 38. In the circumstances the Tribunal decided that considering the Claimant is expected to act promptly following the expiration of the three-month time limit, he would have been in a position between at least 20 May and the date in June when he started chemotherapy and anticoagulant injections to present a claim to the Tribunal. The Tribunal noted that the complaint presented by the Claimant that of unfair dismissal was not in itself complicated and the Claimant by his own evidence was familiar with websites was therefore unable to present a claim before 20 July 2010. 39. The Claimant's complaint therefore fails."
[15]I ought to note, so far as paragraph 38 is concerned, that the last sentence would only make sense if the word "unable" reads "able".[16]It was submitted on behalf of the Appellant by Mr Samuel that section 111 (2) of the Act should be given a liberal interpretation in favour of the employee (see the judgment of the Lord Phillips, MR, in Marks & Spencer PLC v Williams Ryan [2005] ICR 1293 at page 1,300 C-D).[17]The knowledge of the employee as to time limits, needs to be kept in mind (see paragraph 21 of the judgment of Lord Phillips in the same case) and there is a distinction to be made between the concept of what is reasonably practicable and what is simply reasonable (see the judgment of the Court of Appeal in Palmer v South End Council [1984] 1 WLR 1129 at 1141 between D and F per May LJ giving the judgment of the Court).[18]Mr Samuel had originally put forward three propositions in the grounds of appeal. When the matter came before HHJ McMullen QC in the sift procedure adopted by this Tribunal, the learned Judge took the view that the third ground which related to paragraph 35 of the judgment was, in effect, an argument as to perversity, which did not cross the perversity threshold as established in the case of Yeboah v Crofton [2002] IRLR 634 and therefore could not proceed.[19]Mr Samuel submitted that although he was precluded by the order of Judge McMullen from arguing as to the reasonableness of reaching any conclusion in paragraph 35, he was still able to refer to the matter generally under the other two propositions he had advanced in the grounds of appeal.[20]Those were, firstly, that the Tribunal had, at a crucial point in its analysis, namely in paragraph 37, conflated and confused the two parts of section 111(2)(b). Although the Employment Judge had, quite correctly, separated out the two concepts he had to consider at paragraph 25, which I have already quoted, he appears at paragraph 37 to have completely abandoned that analysis and erroneously directed himself that what he needed to consider was reasonable practicability.[21]I have thought carefully as to whether that was simply an erroneous typographical juxtaposition, so that the first sentence at paragraph 37 should read:
"The test in this matter is not one of reasonable practicability, but one of reasonableness"
. It is, however, difficult to make that transposition because it is quite clear, from the decision as a whole, that the Employment Judge was concentrating on a short period between about 20 May and some date in June and he seems to have been, in that period, in turn, concentrating on whether the complaint could have been presented or not. Paragraph 38 reads:
"He would have been in a position between at least 20 May and the date in June when he started chemotherapy and anticoagulant injections to present a claim to the Tribunal. The Tribunal noted that the complaint presented by the Claimant that of unfair dismissal was not in itself complicated and the Claimant by his own evidence was familiar with websites was therefore unable (sic) to present a claim before 20 July 2010)."
[22]I have already indicated that I think the typographical error there, is the word "unable" has been used instead of the word "able". It seems to me that this is the language of reasonable practicability and therefore Mr Samuel is correct when he says the Employment Judge appears to have concentrated on the wrong statutory concept.[23]Mr Haggerty who appears on behalf of the Respondent, submits that it makes no difference whether there has been a transposition or not; the issue is essentially one of reasonableness in both concepts and there would be nothing wrong in the Tribunal identifying a particular period of time when the Appellant was well enough, both physically and mentally, to make an application.[24]Mr Samuel's second point is that the Employment Judge has failed to adopt a liberal interpretation to the section and to the evidence. When the Master of the Rolls in the case of Marks & Spencer PLC v Williams Ryan referred to liberal interpretation, he was, of course, commenting upon the interpretation of the statutory language, but Mr Samuels submits that must also, to an extent, apply to the general approach that a tribunal should take to the question of reasonableness.[25]In particular whilst he accepts the Employment Judge cannot be faulted for suggesting that the burden of proof must be on the Appellant, who seeks the statutory indulgence provided by section 111(2), nevertheless the Employment Tribunal has simply failed to recognise there was evidence from the Appellant dealing with the period in question. The Tribunal had said, at paragraph 35, there was nothing until the letter of 20 May that described the Appellant's physical and mental health. Then the letter, which is quoted above, had spoken of a remarkable post-operative recovery and said that the Appellant was quite well.[26]What the Tribunal then do, is to remark this is "at odds with the claimant's account in his witness statement when he said he was unable to lift small items". Mr Samuel submitted that the Employment Judge was not really choosing his terms with care when he said the two accounts were "at odds", because they are dealing with entirely different things. Indeed, the doctor's letter makes no reference to the day-to-day abilities of the Appellant. The only evidence as to what he could do on a daily basis is to be found in his witness statement.[27]Mr Samuel did not accept this was a finding that the Employment Judge had rejected the account given in the Appellant's witness statement. Indeed, the last sentence of paragraph 35 appears to be a qualification to what was meant by remarkable post-operative recovery in the doctor's letter because the Tribunal referred itself to the fact that the expression "remarkable post-operative recovery" had to be placed in the context of a doctor used to seeing cancer patients. One could infer, submitted Mr Samuel, that the concept of a remarkable post-operative recovery was to be set into the context of a cohort of patients undergoing similar surgery and treatment.[28]Moreover, the Tribunal says at paragraph 37, that it could find no specific evidence, "apart from the claimant's own witness statement". The only reservation expressed about the Appellant's witness statement is that he could not be cross-examined. Consequently Mr Samuel submits that this is very far from a finding of the two accounts really being at odds to the extent that one could be preferred or set against the other. In those circumstances it is remarkable that the Employment Judge seems to have been prepared to discard the Appellant's evidence without giving any basis for doing so. This is not, submits Mr Samuel, a liberal approach.[29]Mr Haggerty relies upon the decision made by HHJ McMullen to exclude the third ground in the Notice of Appeal from further consideration by this Tribunal. The effect of that, he submits, is that no further criticism can be made of paragraph 35. Conclusions[30]Whilst I accept Mr Samuel's analysis that at paragraph 37 the Employment Judge appears to have become confused as to which of the limbs of the statutory test he ought to have been applying, I am not convinced by his submissions that it would make a great deal of difference, although I can see that to focus on practicability as opposed to reasonableness, would tend to, if it were not bound to, lead to erroneous conclusions.[31]Whether to focus on reasonable practicability as opposed to reasonableness, makes any practical difference to the outcome, is something I am not at all sure about. Nevertheless the fact remains that the Employment Judge was focusing to an extent on practicability when that was of itself, not necessarily, a component of reasonableness. Were that matter to stand by itself, however, I might have some difficulty in acceding to Mr Samuel's submissions. But it seems to me that he makes an allied and powerful point in respect of the approach of the Employment Judge to the issue of the evidence that was before him.[32]At several points in the judgment reference is made to the strictness of time limits. It is undoubtedly the case that Employment Tribunals approach the issue of time limits with a degree of strictness, but the whole purpose of section 111(2) is to provide a relief by way of an exception, to that strictness and it seems to me that it does not help at all for the Tribunal to consider restricting its approach under section 111(2) by reference to the general strictness of time limits. Nor do I think it is the right approach to consider how long a period is involved. At paragraph 37 the learned Judge refers to five months as being a lengthy period over which to extend time. With great respect, that is nothing to the point. The issue is whether it is reasonable to extend the time for whatever period.[33]Those points add weight to Mr Samuel's criticism of the approach of the learned Judge but what, to my mind, is conclusive, is that the Employment Judge seems to have reached a conclusion that the Appellant has failed to discharge the burden of proof without, in any way, rejecting the account given by the Appellant in his witness statement. It is, of course, perfectly correct that this was a hearsay statement. Without suggesting that the Appellant did not have a sound reason for not attending the hearing, the Employment Judge seems to have thought that the fact that he could not be examined or cross-examined about his witness statement, of itself meant the witness statement was of no value.[34]It is correct, of course, that the learned Judge had to weigh the witness statement, but the weighing of a witness statement is a balancing exercise. It involves deciding that some evidence may be given less weight in comparison to other evidence. What the Employment Judge, in this case has done, is to give the witness statement no weight whatsoever, without explaining any basis for that approach. It seems to me this is not, either as a matter of interpretation or as a matter of approach, a liberal stance to take in relation to section 111(2).[35]This is all the more so when one recognises, as in my judgment one should, that there is actually no conflict whatsoever between the doctor's letter and the witness statement. In saying that, I do not intend to trespass upon, or in any way, reverse the decision taken by HHJ McMullen as to the attack on paragraph 35 in terms of " Wednesbury " unreasonableness. On the other hand it seems to me that Mr Haggerty's submission that I am precluded from consideration of paragraph 35, whilst it has given me much pause for thought, ultimately must be rejected.[36]This is not an analysis in terms of " Wednesbury " unreasonableness or of perversity of findings. It is simply looking at the approach of the Employment Judge on the issue of whether or not there was evidential material to explain the position from some date in May to some date in June. The doctor does not deal with that at all. It may be that the Tribunal would have been helped by some medical evidence that specifically addressed this period in terms of how well the Appellant might have felt and what he could do. But in the absence of that material, the Employment Judge did have other evidential material, namely the Appellant's witness statement. He did not reject that material and as I have already indicated he gave no reason for not according it any weight and that seems to me to have been an error of approach in terms of the evidence in this case.[37]Accordingly, I take the view that the learned Judge did err in law in concluding it was unreasonable of the Appellant not to have submitted a complaint in the few weeks between May and June. What am I to do about that? The case was dealt with on paper by the Employment Judge. I am in exactly the same position as Judge Nash. I have all the material that Judge Nash had before him. I take the view that in this case I should answer this question myself, being in as good a position as the learned Judge. Moreover, it seems to me there may be compelling reasons as to why I should do so. I know no more of the Appellant's current medical condition than that he said he was not strong enough to attend the pre-hearing review. I infer from that the sooner this matter is heard, if it can be heard in some form, the better.[38]Accordingly, given that the learned Judge thought there was a period of, at the most, four weeks and probably three or less weeks, when the Appellant had failed to prove he was not well enough, but for the rest of the time the Judge appears to have been satisfied that he was not well enough, until he, by his own evidence, had got better, it seems to me I can address that period. I have already indicated the medical evidence gives me no assistance, but it seems to me that some weight should be attributed to the Appellant's own witness statement because there is nothing to contradict it. In my judgment there is no reason to doubt it. He said in the paragraphs I referred to, that he was physically very frail, he was not used to the results of the urostomy and colostomy, he was in urgent need of the toilet, and he could feel unable to go out. He does say he went out to the shops but could carry only a couple of items home.[39]I bear in mind he may have been physically strong enough to access the internet, but it seems to me not too great a step in the imagination, to think that somebody who is now having to pass waste matter into bags for the very first time, is unlikely to be in a position in that short period, before he fell ill again and had to have further treatment and, I ought to add, in a period, when from the medical reports it is clear he had been told he would have to have further chemotherapy as a matter of routine, that a person in those circumstances was acting unreasonably when he did not take the time or make the effort to try and complete a form, whether online or by going out. It seems to me he could not have gone out for very long, or very far and I doubt he was strong enough to even get as far as Citizens' Advice Bureau in that period.[40]In those circumstances I propose to allow this appeal, to reverse the decision of the Employment Judge, to substitute my own decision under the powers I have and to reach the conclusion it was reasonable of the Appellant not to have presented his complaint until 25 July 2009 and accordingly it is in time and the Tribunal has jurisdiction to determine it. Note 1 He had two stomas, one relating to urinary function and one relating to bowel function.