T Mobile (UK) Ltd v Singleton (Jurisdictional Points : Claim in time and effective date of termination) [2011] UKEAT 0410_10_2303

EAT
T Mobile (UK) Ltd v Singleton (Jurisdictional Points : Claim in time and effective date of termination)
[2011] UKEAT 0410_10_2303 · 2011-03-23
[1]This is the reserved judgment of an appeal from a pre‑hearing review of Employment Judge Brain sitting in Manchester on 4 May 2010.[2]Employment Judge Brain decided that it was not reasonably practicable for the Claimant to present a claim of unfair dismissal within three months of the effective date of termination, and that it was presented within such further time as was reasonable. Accordingly, the Employment Tribunal had jurisdiction to consider the claim.[3]I heard the Appeal on 16 December 2010. Counsel for the Appellant was Mr Thomas Kibling. The Respondent did not attend but notified the Employment Appeal Tribunal that he would rely on the Respondent’s Answer. At the conclusion of the hearing, I decided to reserve judgment because I had some two weeks before heard a similar appeal in the case of Remploy Limited v Mrs K L Brain (UKEAT/0465/10/CEA) where I again reserved judgment and not yet handed down my judgment by 16 December 2010. The Material Facts[4]The material facts are set out in paragraphs 8‑20 of the judgment. It says this:
“8. The claimant attended a disciplinary hearing on 23rd November 2009. He faced allegations of failure to follow two of the respondent's policies: the end of day till conciliation policy; and the LOOMIS banking collections policy. Further, the claimant was alleged to be in breach of the respondent's code of conduct. 9. The claimant was informed, at the end of the disciplinary hearing, that he was summarily dismissed for gross negligence and lack of care of the respondent's money. I make no finding as to the reasonableness of the respondent's conclusions. That is for a full Tribunal on another day. 10. On 26th November 2009, the respondent sent to the claimant a letter confirming the outcome of the disciplinary healing held on 23rd November 2009. The claimant was given notice of his right of appeal and that he must exercise that right within 7 days of the date of the letter. The claimant received the letter dated 26th November 2009 on 1st December 2009. He appealed by way of letter dated 3rd December 2009. 11. On 22nd December 2009, he was invited to an appeal hearing to take place on 30th December 2009. The claimant sent an email on 24th December 2009 to say that that date was inconvenient. On 7th January 2010, the respondent emailed the claimant to confirm that the appeal hearing would be rescheduled. 12. There was difficulty in arranging a mutually convenient time and date for the hearing of the appeal. On 25th January 2010, the claimant agreed that the appeal could be heard in his absence and taking into account the claimant's written representations. The claimant sent these to the respondent on 28th January 2010. He received no acknowledgment and therefore resent his submissions on 29th January 2010. 13. On 1st February 2010, the claimant received an email from Peter Hodgson of the respondent. Mr Hodgson was dealing with the appeal along with Jason Salt (Acting Retail Territory Manager). Mr Hodgson said:- ‘Following our recent correspondence, I wanted to bring you up to date with your appeal details. Jason and I have now reviewed the details of your case and there are some outstanding issues which require further investigation before we can be in a position to provide you with an outcome. We aim to get these investigations concluded this week and a letter confirming our findings and resolution to you by Friday. In the meantime, you have mentioned that you have initiated proceedings with the Tribunal. Please could you confirm which Tribunal you have submitted your ET1 to as we have not received the details of your claim from them. As the company has 28 days in which to submit a response to any claim set against it, I am concerned that the documents have gone missing therefore I plan to contact the Tribunal myself to ascertain the location of the documents’. 14. In reply, the claimant sent an e-mail to Mr Hodgson. This is dated 10 February 2010 and says as follows: ‘Further to my last email, I still have not received any confirmation of the decision for my appeal hearing. I would appreciate it if you can confirm to me if a decision has been made and if or when the written confirmation was sent out. As you are aware, I only have until 25th of this month to lodge a claim and don't want to leave it to the last minute to begin proceedings. If a decision still has not been made I will have no alternative but to begin proceedings with no further warnings’. 15. On 15th February 2010, Mr Hodgson replied as follows:- ‘Apologies for the late reply, I was out of the office last week and Jason was on holiday. We will come back to you ASAP in relation to your case’. 16. Copies of the emails of 1 st , 10th and 15th February 2010 to which I have referred emanated from the claimant. Surprisingly, these were omitted from the bundle of documents presented to me by the respondent. I should also say that the claimant gave evidence, which I accept, that on 8th February 2010 he had sent an email asking if a decision had been reached given the promise made to get back to him by 5th February 2010 in the first email of the sequence which I set out above. 17. The claimant received no response to his emails of 8th and 10th February 2010 until 15th February 2010. The claimant then went on to the Direct.Gov website and by 19 th February 2010 had received the papers to enable him to present his claim. On the same day, he received an email from Mr Hodgson which said as follows:- ‘Following our recent correspondence, I would like the opportunity to speak with you to discuss the outcome of your appeal investigation and the proposed resolution. Could you let me know a convenient time and number for me to call you to discuss this’. 18. The claimant gave evidence that he saw this email at about 4.00 pm in the afternoon on 19th February. He was informed that his appeal had been rejected at about 10.00 am on 22nd February 2010. The letter rejecting his appeal was dated 1st March 2010 and was received by the claimant on 3rd March. By that time, the claimant had presented his claim to the Tribunal. 19. The claimant also gave evidence that he had obtained legal advice from Thomas Mann Solicitors. However, this was over the telephone only and was in the nature of a free consultation. The claimant said that he received advice that he should await the outcome of the appeal before issuing proceedings. After having been told of the rejection of his appeal on 22nd February 2010, the claimant sent the papers to the Tribunal by Next Day Special Delivery. It was therefore presented at the Tribunal on 23 rd February 2010. 20. As Mr Allen was not attended by anybody from the respondent, I allowed an adjournment to enable him to seek instructions in particular upon the issue of the email from the claimant of 10th February 2010. I was told by Mr Allen that Mr Hodgson read the email but did not check the exact date of the dismissal of the claimant. Hence, Mr Hodgson did not disabuse the claimant of the notion that he had until 25 th February 2010 within which to present his claim.”
The Employment Tribunal’s Conclusions[5]Having referred to section 111(2) of the Employment Rights Act 1996 and some of the relevant case law, the Employment judge reached his conclusions at paragraphs 26‑31 of his judgment. He said this:
“26. I do not find compelling the argument that the claimant seeking advice from Thomas Mann & Co has the consequence of it being reasonably practicable for the claimant to present his claim in time. The claimant sought advice from Thomas Mann & Co at a very early stage of proceedings. It was a one off telephonic consultation. The claimant was not being advised or represented by Thomas Mann & Co towards the latter end of the period with which we are concerned. I find, accordingly, that the case can be readily distinguished from that of Dedman . 27. I do find compelling the claimant's argument that he had just cause or excuse for not presenting his complaint in time. Although the claimant was well aware that the effective date of termination was 23rd November 2009, it was clear that he was working upon the premise that the three month time limit expired on 25th February 2010, three months from the date of the dismissal outcome letter. That was an erroneous legal presumption. However, it was one which, in my view, gave the claimant a legitimate excuse for not presenting his complaint on time. 28. I reject the claimant's argument that he was misled by the Direct Gov website which, he claimed, had said that he must await the outcome of the appeal before presenting his complaint. The claimant did not produce any evidence to backup that assertion and if the government website does say that, then it is highly misleading. 29. I do, however, find compelling the claimant's argument that he told the respondent that he had to get the claim in no later than 25th February 2010 and the respondent did nothing to correct that misapprehension. The claimant said that the respondent was deliberately trying to run him out of time by failing to respond substantively to his emails after the appeal and not communicating the outcome of the appeal until 1st March 2010. No one from the respondent was present to explain that not insignificant delay. Significance must also be attached to the email of 10th February 2010 not appearing in the respondent's bundle of documents. That was a surprising and unexplained omission. 30. The claimant said that the respondent was trying to run him out of time and hoodwink him into believing that he had until 25th February 2010 to lodge a claim. While I would not go so far, I am certainly of the view that the respondent was less than candid with the Tribunal in failing to produce the email of 10th February 2010. The claimant was labouring under a misapprehension as to the date upon which the time limit expired. He communicated that misapprehension to the respondent who could simply have emailed and put him right. In my judgment, the claimant had just excuse for his ignorance. He presented the complaint the day after the expiry of the time limit. No question therefore arises that he did not present the complaint within a reasonable period after expiry of the original time limit. 31. Accordingly, as higher authority says that I must interpret Section 111 (2) liberally and in favour of the employee, I find that the claimant did have just cause for not presenting his ET1 on time and for not presenting it until the day after the expiry of the time limits. I therefore hold that it was not reasonably practicable for the claimant to have presented his complaint in time and it was presented within the reasonable time thereafter. The claim shall, accordingly, proceed.”
Section 111(2) Employment Rights Act 1996[6]Section 111(2) of the 1996 Act says this:
“(2) Subject to subsection (3), 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.”
[7]Section 111(3) is not relevant in this case. Time runs from the effective date of termination. In this case, the effective date of termination was 23 November 2009 and the Claimant’s claim should therefore have been presented no later than 22 February 2010. It was presented on 23 February 2010 which was one day out of time. The Relevant Law[8]Much of the Appeal concerns the Employment Judge’s alleged failure to give adequate consideration to the fact that the Claimant obtained legal advice from Thomas Mann Solicitors: judgment paragraphs 19 and 26. I gratefully adopt the analysis of Underhill J in Northamptonshire County Council v Mr D Entwhistle (UKEAT/0540/09/ZT) judgement 25 May 2010 where he said this:
“(5) There has been a great deal of authority about the effect of the ‘not reasonably practicable’ test and, in particular, about its application in circumstances where a Claimant has consulted skilled advisers who have failed to give him proper advice about the applicable time limits. The cases to which I have been referred are Dedman v British Building and Engineering Appliances Limited [1974] ICR 53, Walls Meat Company Limited v Khan [1979] ICR52, Riley v Tesco Stores Limited [1980] ICR 323, Palmer and Saunders v Southend‑on‑Sea Borough Council [1984] IRLR 119, London International College v Sen [1993] IRLR 333, Marks & Spencer PLC v Williams‑Ryan [2008] ICR 193 and Ashcroft v Haberdasher’s Aske’s Boys School [2008] ICR 613 . I will not attempt a full analysis of what those cases decide; the points relevant to the argument in the present case can be summarised as follows. (1) Section 111(2)(b) should be given ‘a liberal construction in favour of the employee’. This was first established in Dedman . There have been some changes to the legislation since but this principle has remained: see, most recently, paragraph 20 in the judgment of Lord Phillips MR in Williams‑Ryan , at page 1300. (2) In accordance with that approach it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time limit if he was, reasonably, in ignorance of that time limit. This was first clearly established in the decision of the Court of Appeal in the Walls case, but see most recently paragraph 21 of Lord Phillip’ judgment in Williams‑Ryan and, in particular, the passage from the judgment of Brandon LJ in Walls there quoted, at pages 1300 to 1301. (3) In Dedman the Court of Appeal appeared to hold categorically that an applicant could not claim to be in reasonable ignorance of the time limit if he had consulted a skilled adviser, even if that adviser had failed to advise him correctly. Lord Denning MR said this at page 61 E‑G: ‘But what is the position if he goes to skilled advisers and they make a mistake? The English court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It was held that it was ‘practicable’ for it to have been posted in time. He was not entitled to the benefit of the escape clause: see Hammond v Haigh Castle & Co Limited [1973] ICR 148. I think that was right. If a man engages skilled advisers to act for him, and they mistake the time limit and present it too late, he is out. His remedy is against them. Summing up, I would suggest that in every case the Tribunal should inquire into the circumstances and ask themselves whether the man or his advisers were at fault in allowing the four weeks to pass by without presenting the complaint. If he was not at fault, nor his advisers, so that he had just cause or excuse for not presenting his complaint with the four weeks then it was not practicable for him to present it within that time. A court has then a discretion to allow it to be presented out of time if it thinks it right to do so, but if he was at fault, or his advisers were at fault in allowing the four weeks to slip by, he must take the consequences. By exercising reasonable diligence the complaint could and should have been presented in time.’ Lord Denning made a similar point in his judgment in the Walls case, at page 56 D‑E. In his judgment in the same case Brandon LJ, after referring to the fact that a complainant could in principle seek to rely on ignorance or mistake about the time limit, said this, at pages 60‑61: ‘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 in not giving him such information as they should reasonably in all the circumstances have given him [my emphasis].’ (4) In Riley , Stephenson LJ cautioned against treating Dedman as laying down a rule of law, observing that ‘every case must depend on its own facts’: see page 329 C‑D. In Sen Sir Thomas Bingham MR went further and questioned the rationale of the rule itself: see paragraph 16, at pages 335‑6. (5) However, in Williams‑Ryan Lord Phillips reviewed the relevant authorities in some detail with a view to identifying whether it was a correct proposition of law that, as he put it at paragraph 24 (page 1301): ‘... if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the Employment Tribunal in due time. The fault on the part of the adviser is attributed to the employee.’ He concluded squarely at paragraph 31 (page 1303): ‘What proposition of law is established by these authorities? The passage I quoted from Lord Denning’s judgment in Dedman was part of the ratio. There the employee had retained a solicitor to act for him and failed to meet the time limit because of the solicitor’s negligence. In such circumstances it is clear that the adviser’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal.’ The passage from Dedman there referred to is part of the passage which I have set out at (3) above. I think it is clear that Lord Phillips was intending to confirm that what he elsewhere called ‘the principle in Dedman’ is a proposition of law and, to that extent, to decline to endorse Stephenson LJ’s observations in Riley , which he referred to as having been obiter , or Sir Thomas Bingham’s doubts in Sen . (6) Subject to the Dedman point, the trend of the authorities is to emphasise that the question of reasonable practicability is one of fact for the Tribunal and falls to be decided by close attention to the particular circumstances of the particular case: see, for example, the judgment of May LJ in Palmer at page 385 B‑F. I should refer also to the comment by Stephenson LJ in Riley , at page 334 D that: ‘When judges elaborate or quality the plain words of a statute by gloss upon gloss, the meaning of the words may be changed, the intention of Parliament not carried out but defeated and injustice done instead of justice.’ Lord Phillips acknowledged this at paragraph 43 of his judgment in Williams‑Ryan (see page 1305).”
The Grounds of Appeal Ground 1: failure to properly consider or apply the Dedman principle[9]The Employment Judge’s findings of fact are at judgment paragraph 19 set out above. It was telephone advice and in the nature of a free consultation but it was advice given by a firm of solicitors in the course of their practise as a firm of solicitors. The fact that it was free advice does not excuse them from negligence. The advice given was that the Claimant should await the outcome of the appeal before issuing proceedings. That advice was clearly negligent.[10]The Employment Judge’s reasoning is at judgment paragraph 26 set out above. He gives three reasons. The first is that the Claimant sought advice from Thomas Mann and Co at a very early stage of proceedings. That is irrelevant. The critical issue is that he sought advice from a firm of solicitors about his dismissal and the correct time for bringing proceedings. He was clearly aware of the time limits. The second reason was that it was a one off telephonic consultation. In my judgment, that does not matter. Advice was given by a skilled, professional adviser. Third, the Claimant was not being advised or represented by Thomas Mann and Co towards the end of the three month period. That again seems to me irrelevant. The facts show that the Claimant was well aware of the three month time limit albeit that he had miscalculated the date on which that three month time limit expired, and second, that he taken skilled legal advice and relied upon it. In my judgment, the Employment judge was wrong in his conclusion that the present case can be readily distinguished from that of Dedman . It is not a case of distinguishing Dedman . The Dedman principle is, as Underhill J has made clear, of general application.[11]It is right that I address an issue raised by Mr Kibling in respect of the second and third reasons given by the Employment Judge in paragraph 26 of the judgment. The Employment Judge appears to think that because the advice was short (being given on the telephone) and the Claimant was not advised or represented by Thomas Mann towards the end of the period, i.e. in the filing of the claim, then that can be distinguished from the situation where a Claimant takes advice from a solicitor and then instructs that solicitor to draft the claim form, file it and represent the Claimant at a hearing.[12]The Employment Judge did not refer in his judgment to any direct authority on this point: no doubt because he was not referred to it at the hearing. However, Mr Kibling has referred me to that authority and I should deal with it. In The Royal Bank of Scotland PLC v Theobald (UKEAT/0444/06/RN) judgment 10 January 2007, Lady Smith suggested that there may be a distinction between the situation in which an employee hands over his/her entire case to a skilled advisor and where a one‑off advice is secured: judgment paragraph 27. These remarks are obiter and have subsequently been doubted by Mr Justice Burton in Ashcroft v Haberdasher’s Aske’s Boys School (UKEAT/0151/07/CEA) judgment 14 November 2007 at paragraph 14 where he said this:
“The line of authority is well established. Lady Smith has suggested in the Theobald case that there may be a distinction between a situation in which a Claimant hands over the handling of the proceedings in their entirety to such an adviser, such as in that case the claimant did to the Citizens Advice Bureau, where the ‘impracticability case’ would not be available, and to a situation where a claimant handles the case himself or herself, but on a one-off basis obtains advice from an adviser as to time limits or deadlines, which turns out to be wrong, in which Lady Smith suggests that it might be that the ‘impracticability case’ might be available. For my part, I find that a difficult distinction which may not be possible to pursue in practice, and may not be founded on logic or good authority...”
[13]I respectfully prefer the approach of Burton J to that of Lady Smith. Ground 2: too great weight attached to the liberal interpretation[14]I reject this ground of Appeal. The liberal approach is still good law: see Marks & Spencer PLC v Williams‑Ryan [2008] ICR 193 at paragraph 20 per Lord Phillips MR (as he then was). Ground 3: failure to have regard to Dedman as considered in Entwhistle[15]I have already dealt with this under Ground 1. Ground 4: correction of misunderstanding[16]The facts as found by the Employment Judge are at judgment paragraphs 13‑15 and 20 set out above. What those factual findings make clear is that first, the Claimant told the Appellant that he was filing a claim in the Employment Tribunal; second, that the Claimant sent an email to Mr Hodgson dated 10 February 2010 stating that he had “until 25th of this month to lodge a claim...”; and third, that Mr Hodgson replied to that email by his own email on 10 February 2010 which makes no reference to the Claimant’s assertion as to the time limit he had to work to; fourth, that Mr Hodgson read the email of 10 February “but did not check the exact date of the dismissal of the Claimant”. The Employment Judge commented that “hence, Mr Hodgson did not disabuse the Claimant of the notion that he had until 25th February 2010 within which to present his claim” is correct because the Shorter Oxford English Dictionary defines “disabuse” as “to relieve from fallacy or deception”. On the facts found by the Employment Judge, Mr Hodgson did not so disabuse the Claimant because he did not himself “check the exact date of the dismissal of the Claimant” and therefore become aware that the Claimant only had until 22 February 2010 to file his claim and not until 25 February 2010.[17]However, in paragraphs 29‑30 of his judgment the Employment Judge goes further. At paragraph 29 he says that “the Respondent did nothing to correct that misapprehension”. However, if Mr Hodgson did not check the time limit when he received the Claimant’s email of 10 February 2010 and there was no evidence that Mr Hodgson knew of the expiration of the three month time limit on 22 February 2010 (which there was not), it is difficult to see how he could have corrected the Claimant’s own misapprehension. The fault was the mistake as to the calculation of the time limit and that was the Claimant’s own mistake. In my judgment, what the Employment Judge has done in paragraphs 29‑30 is to place a positive duty on the Respondent to check out and correct any error as to a limitation period for bringing a claim for unfair dismissal (and presumably the same would apply to any other cause of action in employment law or indeed a personal injury claim). In my judgment, that is a bridge too far. The obligation is not to materially mislead or misrepresent the position. There was no evidence before the Employment Judge that that is what Mr Hodgson had done in this case whatever the belief of the Claimant.[18]This approach is borne out by the judgment of May LJ in Palmer and Saunders v Southend‑on‑Sea Borough Council [1984] IRLR 119 at paragraph 35 where he talks of “misrepresentation about any relevant matter” and the judgment of Underhill J in Entwhistle at paragraph 9. Ground 4: perversity[19]The legal test for perversity is well known. It does not bear further repetition in yet another judgment of the Employment Appeal Tribunal. The hurdle is a high one. It is not satisfied here. Conclusion[20]The only other reason given by the Employment Judge is in paragraph 27 of his judgment. It was that the Claimant had miscalculated the date when the three month time limit (about which he clearly knew) expired. He apparently thought that it expired on 25 February 2010 when it actually expired on 22 February 2010. The Employment Judge’s conclusion is:
“That was an erroneous legal presumption. However, it was one which, in my view gave the Claimant a legitimate excuse for not presenting his claim on time.”
[21]As a matter of fact the Claimant knew that he had been summarily dismissed on 23 November 2009 because he was told that at the conclusion of the disciplinary hearing on that date. For a reason which does not appear in the Employment Judge’s judgment, the Claimant seemed to believe that the three month limitation period ran from the date when he received the letter confirming that summary dismissal. That was on 25 November 2009. There is no investigation by the Employment Judge as to why the Claimant thought this was the case other than the fact it was “an erroneous legal presumption”. In my judgment, that cannot amount to giving “the Claimant a legitimate excuse for not presenting his complaint on time”. I can see no difference here from say a Claimant thinking that there was a four month limitation period rather than a three month limitation period. The Employment Judge does not seek to blame the Appellant for this misconception on the Claimant’s part. In my judgment, this was also an error of law because the Employment Judge simply applied the wrong test. The test is not whether the Claimant had “a legitimate excuse for not presenting his complaint on time” but whether it was reasonably practicable for him to do so.[22]There are no further facts to be found and I am therefore in a position to substitute my judgment for that of the Employment Judge. In my judgment, it was reasonably practicable for this Claimant to present his claim in time. He did not do so. The claim is therefore dismissed.