Robinson v Bowskill & Ors (p/a Fairhill Medical Practice) (Jurisdictional Points : Claim in time and effective date of termination) [2013] UKEAT 0313_12_2011
EAT
Robinson v Bowskill & Ors (p/a Fairhill Medical Practice) (Jurisdictional Points : Claim in time and effective date of termination)
[2013] UKEAT 0313_12_2011 · 2013-11-20
[34]“ 34. Underlying both decisions (although not expressly articulated in either) is the notion that it would be unfair for time to begin to run against an employee in relation to his or her unfair dismissal complaint until the employee knows – or, at least, has a reasonable chance to find out – that he or she has been dismissed. This is as it should be. Dismissal from employment is a major event in anyone's life. Decisions that may have a profound effect on one's future require to be made. It is entirely reasonable that the time (already short) within which one should have the chance to make those decisions should not be further abbreviated by complications surrounding the receipt of the information that one has in fact been dismissed. 35. These considerations provide the essential rationale for not following the conventional contract law route in the approach to an interpretation of section 97. As Mummery LJ said, it is a statutory construct. It is designed to hold the balance between employer and employee but it does not require – nor should it – that both sides be placed on an equal footing. Employees as a class are in a more vulnerable position than employers. Protection of employees' rights has been the theme of legislation in this field for many years. The need for the protection and safeguarding of employees' rights provides the overarching backdrop to the proper construction of section 97. 36. An essential part of the protection of employees is the requirement that they be informed of any possible breach of their rights. For that reason we emphatically agree with the EAT's view in McMaster that the doctrine of constructive knowledge has no place in the debate as to whether a dismissal has been communicated. For the short time of three months to begin to run against an employee, he or she must be informed of the event that triggers the start of that period, namely, their dismissal or, at least, he or she must have the chance to find out that that short period has begun. Again, this case exemplifies the need for this. During the three months after Ms Barratt's dismissal, she pursued an internal appeal; she learned that she was unsuccessful in that appeal; she sought advice in relation to the lodging of a complaint of unfair dismissal; and she presumably required some time to absorb and act upon that advice. Viewed in the abstract, three months might appear to be a substantial period. In reality, however, when momentous decisions have to be taken, it is not an unduly generous time.”28. And at paragraph 41 the Supreme Court said: “The essential underpinning of the appellant's case, that conventional principles of contract law should come into play in the interpretation of section 97, must therefore be rejected. The construction and application of that provision must be guided principally by the underlying purpose of the statute viz the protection of the employee's rights. Viewed through that particular prism, it is not difficult to conclude that the well established rule that an employee is entitled either to be informed or at least to have the reasonable chance of finding out that he has been dismissed before time begins to run against him is firmly anchored to the overall objective of the legislation.”29. Mr Callow submitted that constructive knowledge of the dismissal – and by that he meant acquiring knowledge through Ms Kavanagh rather than directly from the Respondents – was not sufficient; he relied in that context on paragraph 33 of the judgment of the Supreme Court in Gisda , in which, at page 1,484H, the following was said: “[…] an industrial tribunal would be likely to assume that letters usually arrive in the normal course of post and that people are to be taken, normally, as opening their letters promptly after they have arrived.”30. It is clear that the Supreme Court did not accept the sufficiency of constructive knowledge in the sense that the addressee of a letter is deemed to have knowledge of its contents when it arrives at his address applied. However, the doctrine of constructive knowledge in the sense that A may be bound by B’s knowledge did not arise in Brown or Gisda and does not, in my judgment, arise in the present case. The Employment Judge did not reach her conclusion on the basis that Ms Kavanagh’s knowledge on 6 July was to be treated constructively as the Claimant’s knowledge on that day. Although she did refer to Ms Kavanagh as the Claimant’s agent, she did not conclude from that that Ms Kavanagh’s knowledge was the Claimant’s knowledge; her decision was based on Ms Kavanagh’s informing the Claimant on 7 July of the existence of and the contents of the email which she had received on the previous day. While it might logically have been open to the Employment Judge to consider whether, being the Claimant’s agent in the dispute between the Claimant and the Respondents, her receipt of the email communicating the dismissal was sufficient without communication to the Claimant, if the Respondents so argued, the Employment Judge did not follow that route; and her conclusion is not in error of law because she did not do so. The essential issue on the facts of this case is whether communication to the employee of the dismissal by the employer via a third party, whom the employer has informed of the dismissal, is sufficient to satisfy the test in Gisda .31. In my judgment, what is essential to the principle is that the contract of employment is not effectively terminated until the employee knows of the dismissal or has had a reasonable opportunity of finding out that he or she has been dismissed. I see no reason why the fact that the employer gives notice of the dismissal to a third party rather than by a direct route to the employee – even if subsequently the dismissal is confirmed by such a direct route – should have the effect that the knowledge thus acquired cannot be treated as sufficient to satisfy the test established in Brown and approved in Gisda ; nor do I see any reason why the fact that a formal letter of dismissal has been sent but not received when the employee acquires the knowledge of his dismissal through a third party should or can prevent the acquisition of that knowledge from satisfying that test at the time when that knowledge is acquired. To take an example framed from the facts of Gisda , if the letter of dismissal had been opened by the Claimant’s partner’s son and read to the Claimant on the telephone, while she was still away with her sister, would that not have been sufficient communication? Or, if the employer had sent a letter to a solicitor acting for the Claimant as well as to the Claimant and that solicitor had read the letter to the Claimant while she was at her sister’s, would that not have been sufficient communication? In my judgment, there would have been sufficient communication in both cases.32. It is of course not difficult to imagine facts which could produce a result that would differ from that reached, in my judgment correctly, in this case. As Mr Callow pointed out, if Ms Kavanagh had not been able to contact the Claimant until 9 July, the result would have been different. However, that does not produce any particular inconsistency; there may always be cases in which a slight variation in the facts may lead to a different result. Nevertheless, the principle, in my judgment, is in no doubt. Employment Tribunals have to apply those principles to the facts of each case and do so, of course, on a day‑by‑day basis. The uncertainties to which Mr Callow drew my attention could be seen to arise equally if his argument were correct; if knowledge derived from a third party was to be ignored in a case such as this; would it be open to a Claimant in the same position as the Claimant in this case to say that she had no knowledge of the dismissal if she had been told in clear terms by her solicitor of it, if it had been read to her and if the solicitor had lodged an appeal against the dismissal on her behalf but the directly sent letter had not been received by the Claimant because it had got lost in the post? In my judgment, the result reached by the Employment Judge does not produce uncertainty or absurdity to a degree that renders it unworkable.33. Mr Callow took a further point, that the email to Ms Kavanagh did not tell her that the dismissal was without notice. He candidly accepted that he had not taken that point before the Employment Judge. I will assume, that it is open to him to take it on appeal; but it is not, in my judgment, a persuasive point. Neither Ms Kavanagh nor the Claimant is said ever to have suggested that they did not understand on 7 July that the dismissal was immediate in its effect. It is true that the email to Ms Kavanagh does not use the word “immediate” or “immediately” in contrast to the letter sent on 7 July to the Claimant; but the email contained no reference to a notice period, to the Claimant’s working or not working a notice period or to pay in lieu of notice and made it clear that the Claimant had been dismissed for gross misconduct. Ms Kavanagh’s email to the Respondents on 7 July betrayed no shadow of doubt as to what the Respondents had decided on 6 July. 34. For these reasons, my conclusion on this issue is that the Employment Judge did not err in law in reaching the conclusion that the effective date of termination was 7 July and that the unfair dismissal claim was presented outside the three‑month primary time limit. “Just and equitable” 35. In his skeleton argument Mr Callow accepted that an appeal to the EAT against the Tribunal’s exercise of discretion under section 123(1) of the Equality Act to extend time for the presentation of a discrimination claim on a just and equitable basis can only be successful if it is shown that the Tribunal erred in principle, came to a perverse conclusion or came to a conclusion that was “plainly wrong”, which is not different to perversity (see Hutchinson v Westwood Television [1977] ICR 279, Robertson v Bexley Community Centre [2003] IRLR 434 and many similar authorities). 36. Mr Callow’s submission was that the Employment Judge erred in principle in deciding against the Claimant on the basis or substantially on the basis of the fault of her solicitor or in failing to take into account the fact that the fault was that of the Claimant’s solicitor and not that of the Claimant. 37. I did not, when earlier setting out the thrust of the Employment Judge’s decision on this issue, set out her reasons; I must do so now. She correctly directed herself at paragraph 29 that it was for the Claimant to persuade the court that it was just and equitable to extend time and that, in doing so, she would consider why the claim was presented late rather than the merits of the claim. She set out at paragraph 31 that she had regard to the “checklist” of relevant factors set out in the Limitation Act 1980 as modified by the EAT in BCC v Keeble [1997] IRLR 336 , set out that checklist and correctly said that it provided a guide to her considerations. She continued as follows: “33. The delay in bringing the proceedings is not extensive. The ET1 was presented two days outside the relevant time limit and as such the cogency of the evidence is unlikely to be substantially impaired. However, I do take note that the Claimant’s claim for reasonable adjustments relates to her mental capacity at the time of the disciplinary hearing. Apart from the Claimant’s GP medical certificates, there is no other medical information of her mental capacity at the time. I accept the Respondent’s [sic] submission that it would now be difficult to make that assessment however, do not consider that two days would make much difference to this particular difficulty. 34. The main difficulty is that the Claimant clearly knew and believed she had grounds to bring a claim of discrimination to the Tribunal even before her disciplinary hearing. As set out above references to tribunal proceedings were made by her solicitor on 7 th July 2011 and also earlier in correspondence. The Claimant was advised throughout by her solicitor who was actively involved in all aspects of the disciplinary process. Yet despite this, and having sufficient information to bring a claim of discrimination the claim was not made within the applicable time limits. 35. Ms Kavanagh said that she was waiting for papers to be given by the Respondent in order for her to present the claim. However in cross examination she said that the papers requested related to the unfair dismissal claim but not the discrimination claim. In any event were not necessary to present the claim [sic]. She is an experience [sic] employment law solicitor. All that is needed is the basis on which the Claimant believed she had been discriminated against and unfairly dismissed. Quite clearly this information was in the hands of Ms Kavanagh in good time. 36. Ms Kavanagh has sought to explain why she delayed putting in a claim and much of this relates to her concerns about the Claimant’s mental capacity and ability to give instructions during this period. However, there are no medical evidence before me to back this up. There is no medical report or records from the Claimant’s GP. The evidence I have shows that the Claimant personally sought documents from third parties in preparation for her claim as requested by Ms Kavanagh which indicates that she was able to function and give instructions. 37. In considering the reasons why the claim was not brought in time I do not consider that the Claimant has shown any reason why I should extend time for presentation of her discrimination claim on the basis that it is just and equitable to do so. The Claimant’s claim of disability discrimination is dismissed.” 38. Mr Callow submits that in those paragraphs the Employment Judge correctly found that the delay was one of two days only and that it did not affect the cogency of the evidence; there had been no evidence of any lack of co‑operation, and it was clear that the Claimant had already put matters in the hands of her solicitor before she was dismissed. She believed that she had grounds to bring a claim for discrimination in relation to the disciplinary process, yet her claims were not made in time. The Employment Judge then had considered in paragraphs 35 and 36 why that was and concluded that the fault lay with Ms Kavanagh and that the discretion should be exercised against the Claimant for that reason. 39. In Virdi v Commissioner of Police for the Metropolis and Anor [2007] IRLR 24 the claimant’s discrimination claims were presented one day out of time against the first respondent and two‑and‑a-half months later against the second respondent. The Employment Judge decided that the claimant had put his claim in the hands of the Police Federation and his solicitors and that there was no explanation for the delay. The EAT, presided over by Elias P, as he then was, held that the Employment Judge had erred in concluding that there was no explanation; the explanation was that the claimant had put his claim in the hands of his union and solicitors. At paragraphs 35, 39 and 40 the EAT said:[35]“ 35. It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419 . para 27. For that reason it is not legitimate for a Court to refuse to extend time merely on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor. Mr Sethi went so far as to submit that the existence of a potential claim against a legal adviser was a factor which should not be taken into account at all. He contends that this was the view of the EAT in Chohan v Derby Law Centre [2004] IRLR 685 . […][39]However, I think there is force in Mr Sethi's submission that the chairman was wrong to say that Sergeant Virdi had given no explanation for the late claim. Mr Sheldon says that it is no explanation simply to say that he had put the matter in the hands of his lawyers. Sergeant Virdi did not explain to the Tribunal why the solicitors put the claim in late, and even suggested that it could not be inferred that Sergeant Virdi himself was without fault because it was conceivable that he had instructed the solicitors not to put in the claim before the date when it was lodged.40. I wholly reject that submission. When assessing whether time should be extended the fault of the claimant is plainly relevant, as it is under section 33. So if the failings are those of the solicitor and not the claimant that is highly material. But the errors of his solicitors should not be visited on his head, as the Steeds case and the authorities to which it refers, make abundantly clear. So whatever the reason why the solicitors failed in their duty would be immaterial when assessing the claimant's culpability, save perhaps for the possibility, which I consider to be wholly fanciful, that they were acting on his instructions and that therefore that he was indeed personally to blame for the late submission. The relevance of the explanation here is that it indicates that the blame for the late claim cannot be laid at Sergeant Virdi's door. That is an important consideration in the exercise of discretion.” 40. The EAT reversed the Employment Judge’s conclusion, so far as the first respondent was concerned; in the case of the second respondent, where the delay was much longer and other matters were relevant, the EAT remitted the just and equitable issue to the Employment Tribunal.41. In Benjamin v Cole and Great Ormond Street Hospital for Sick Children NHS Trust UKEAT/0356/09 HHJ Serota QC, sitting alone, the Employment Tribunal declined to extend time in respect of a claim that was late but by very little. The claimant had put her case in the hands of someone who held himself out as a skilled representative in employment cases. HHJ Serota QC followed the line of authority culminating in Virdi and allowed the claimant’s appeal against the Employment Judge’s refusal to exercise the just and equitable discretion in her favour, remitting the case to the Employment Tribunal.42. Mr Callow submitted, on the basis of the principle set out in those authorities, that the Employment Judge had erred in law in failing to apply that principle or in acting on a factor that she should not have had in mind, namely the fault of the Claimant’s solicitor, to which it was not suggested that the Claimant had contributed.43. Mr Samson reminded me of the long‑established precept that time limits are strictly applied in employment cases and submitted that the Employment Judge had reserved her decision, had correctly directed herself on the law and had reached a factual decision that should not be overturned on appeal unless perversity were proved. He relied on Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 , in which the employer appealed to the EAT and thence to the Court of Appeal against the Employment Tribunal’s decision that it was just and equitable to extend time for the claimant’s belated presentation of her disability discrimination claim. The Court of Appeal in dismissing the appeal emphasised the width of the Employment Tribunal’s discretion. At paragraph 29 Longmore LJ said:[29]“ I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still. ” 44. Sedley LJ said at paragraphs 30‑32:[30]“ 30. I agree with Mr Justice Underhill and Lord Justice Wall that the EJ's decision, while it could have been (and, had it been reserved, no doubt would have been) a great deal better expressed, was not vitiated by any error of law.[31]In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. 32. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it. That, albeit discursively, is what the EJ did here, notwithstanding his passing distraction by a textbook comment of doubtful relevance or weight.”45. Founding himself on those precepts, Mr Samson contended that an appellate Tribunal should respect the factual findings of the Employment Tribunal and should not strain to identify errors merely because it was unhappy with a factual conclusion; nor should the Employment Tribunal judgment be looked at with a fine‑tooth comb (see, for example, ASLEF v Brady [2006] IRLR 578, EAT, Elias P presiding, at paragraph 55). I wholly accept these propositions. Brady was not a discrimination case; the point applies with greater force where what is sought is the overturning of an exercise of discretion based on factual material.46. Applying these principles, Mr Samson argued that the Employment Judge reached a factual decision which involved consideration of the relevant factors and which it was open to her to reach; but she did not do so entirely on the basis of fault on the part of Ms Kavanagh. He submitted that the Employment Judge had been critical of the Claimant’s failure to obtain satisfactory medical evidence in paragraphs 33 and 36, at paragraph 35 that she had been critical of the Claimant’s failure to get papers to Ms Kavanagh; and in conclusion at paragraph 37 the Employment Judge had said that she did not consider “that the Claimant [my emphasis] has shown any reason why I should extend time”. This was not a case, as was Virdi , he submitted, in which the only fact weighing against the grant of an extension of time was the availability of a claim against the solicitor (see Virdi , paragraph 43).47. I have found myself unable to accept Mr Samson’s submissions on this part of the appeal, ably as they were put. I accept his propositions of law, but they do not, in my judgment, satisfactorily rebut the force of Mr Callow’s analysis of the Employment Judge’s decision. While it is correct that the Claimant knew she had a discrimination claim, because the Respondents were insisting in proceeding with disciplinary proceedings against her when, on her case, she was too ill to attend, the Employment Judge was not, in so saying at paragraph 34, criticising the Claimant; she was making the point that she had enough information to enable Ms Kavanagh to proceed with the claim. As she said at the end of the following paragraph, Ms Kavanagh had all that she needed to enable her to present the discrimination claim in good time. As to the absence of sufficient medical evidence, that was relevant because Ms Kavanagh had sought to explain the delay on her part by reference to the Claimant’s illness and to her, Ms Kavanagh’s, concern that the Claimant might not have the capacity to give instructions. The Employment Judge in paragraph 36 was not criticising the Claimant, nor was she doing so in paragraph 33.48. As to paragraph 37, the Employment Judge had to decide whether the Claimant had demonstrated any reason why time should be extended. Her conclusion that the Claimant had not done so did not in any way indicate that the Claimant was herself at fault. The Claimant did not give evidence; Ms Kavanagh did. It was she who, on behalf of the Claimant, sought to explain the delay; but it was the Claimant who, by those means and whose claim it was, who was seeking an extension of time. It was for the Claimant to demonstrate that the discretion should be exercised in her favour; on the Employment Judge’s conclusion, she had failed to do so. She failed to do so because of the fault of her solicitor.49. That approach, in my judgment, involved the error of law or of principle on which Mr Callow relied. It is clear from Virdi and authorities before and since Virdi that where the case of a claimant who seeks an extension of time is that he or she put the claim into the hands of a solicitor or experienced representative, the claimant is putting forward an explanation which is capable of being a satisfactory explanation for delay in the presentation of the claim. To quote Elias P in Virdi again, “The errors of his solicitor should not be visited on his head”. Unfortunately, the Employment Judge was not referred to Virdi , but, while for this reason the error that, in my judgment, she made by not appreciating that the Claimant was putting forward a potentially valid explanation and should not ordinarily be denied the exercise of discretion when the other relevant facts were in her favour, is forgivable, it remains an error of law which vitiates her conclusions on this issue.50. For these reasons, I have concluded that this is one of those rare cases in which the EAT can and should intervene although the Employment Judge was carrying out a discretionary function and that the appeal against her decision that there should not be an extension of time in relation to the disability discrimination claim should be allowed. Disposal51. Mr Samson submitted that, if I were to reach the above conclusion, I should remit the just and equitable issue to the same Judge to reconsider that question on a correct application of the law. Mr Callow submitted that there was no need for a remission.52. I must remit unless, on a remission, only one result could sensibly emerge; but it is my view that that is the case here. All the other relevant factors were in the Claimant’s favour. If the solicitor’s delay is not weighed in the balance against her, it is so unlikely that the just and equitable issue could properly be resolved against her on a remission that I should say that remission is unnecessary and substitute a finding that the time for presentation of the disability discrimination claim is extended to the date on which that claim was presented.53. Accordingly, the Claimant’s appeal against the dismissal of her unfair dismissal claim is dismissed. Her appeal against the dismissal of her disability discrimination claim is allowed, with the substitution for the Employment Tribunal’s order of the order which I have set out.