MR T BOZEAT-MANZI v TELEFONICA UK LTD [2013] UKEAT 0389_12_0307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2013] UKEAT 0389_12_0307Case No Appeal No. UKEAT/0389/12
Between
MR T BOZEAT-MANZIAPPELLANTTELEFONICA UK LTDRESPONDENT
Before
HIS HONOUR JEFFREY BURKE QC (SITTING ALONE)Date 3 July 2013
[1]APPEARANCES For the Appellant MS LAURA PRINCE (of Counsel) Bar Pro Bono Unit For the Respondent MR MARTIN PALMER (of Counsel) Instructed by: Telefonica UK Ltd Arlington Business Centre Millshaw Park Lane Leeds LS11 0NE SUMMARY DISABILITY DISCRIMINATION ACT The Claimant's unfair dismissal, discrimination and money due claims were all dismissed at a Pre-Hearing Review. The ET1 was 1 day late. The Claimant was too ill to run the proceedings or to attend the hearing. The claim was instituted and run by his father-in-law, who appeared on his behalf. The Employment Judge asked whether the Claimant could give evidence and said that at such a hearing the party seeking an extension of time usually did so. She was informed of the Claimant's absence and that the father in law had run his case for him. Held , after extensive review of the authorities:- 1. In considering the just and equitable extension the EJ had erred in law in not considering prejudice. 2. There was also an error of law in the failure to invite the father-in -law to give evidence on the reasons for the delay. The Claimant had not contributed to the claim or the delay; in reality it was the father-in law's evidence, if any, which could have been important on the just and equitable issue. 3. But there was no error of law in relation to the reasonable practicability issue. The facts were clear; evidence could not have made any difference. Appeal against the decision on the reasonable practicability decision dismissed; but the appeal against the just and equitable decision allowed; that issue remitted to a fresh Tribunal. HIS HONOUR JEFFREY BURKE QC History This is an appeal by the Claimant before the Employment Tribunal, Mr Bozeat-Manzi against the decision of the Tribunal at Bristol, consisting of Employment Judge Christensen sitting alone, that his various claims put forward in an ET1 dated 28 April 2011 should be dismissed as being out of time. Those claims were that he had been unfairly dismissed; that he had been the victim of disability discrimination, including by the dismissal; and that in breach of contract he had not been paid bonus due to him. The Claimant's appeal relates to all of those claims.[2]The Claimant has been represented before us by Ms Prince of counsel; the Respondent has been represented by Mr Palmer of counsel. I am grateful to both for their helpful submissions.[3]The relevant statutory provisions which set out the primary time limits for those claims are well known. So far as unfair dismissal is concerned, section 111(2) of the Employment Rights Act 1996 provides:
"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."
[4]So far as disability discrimination is concerned, section 123(1) of the Equality Act 2010 provides:
"Proceedings on a complaint within section 120 may not be brought after the end of - (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable."
[5]So far as the breach of contract claim is concerned, the statutory provisions have the same effect as those in respect of unfair dismissal.[6]The Claimant was employed by the Respondent, Telefonica UK Limited, as a retail area manager from 2006 until his dismissal. That dismissal was effected by a letter dated 27 April 2011, which asserted that the Claimant was redundant. It said:
"Your employment with Telefónica Limited will end on 28 April 2011 and you will be paid in lieu of notice entitlements."
[7]There are very substantial disputes as to the true reasons for that dismissal, but those disputes are irrelevant for present purposes. The presence or absence of merits on either side played no part in the decisions from which this appeal is brought.[8]At the time of the dismissal, the Claimant was off work. It is his case that he was suffering from clinical depression, induced or enhanced by the Respondent's treatment of him. It is that depression which forms the basis of his claim to have been, at the date of the dismissal and for sometime before it, a disabled person within the relevant provisions of the Equality Act.[9]Due to his illness, his father-in-law, Mr Miles Bozeat, has dealt with his claim on his behalf throughout. He put in the Claimant's ET1; he wrote various submissions to the Employment Tribunal in advance of the Pre-Hearing Review ("PHR"), the outcome of which has prompted this appeal; and he appeared on the Claimant's behalf at the hearing of the PHR on 28 September 2011. He thereafter put forward both an application for a review to the Tribunal and this appeal.[10]The application for a review failed; and the decision to reject it has not been the subject of any appeal, as far as I am aware. So far as this appeal is concerned, it was rejected at the first stage of the Employment Appeal Tribunal's process. However, it was permitted to proceed to a full hearing by HHJ Shanks, at an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules, on the basis of amended grounds of appeal only, which were put forward by Ms Prince on the Claimant's behalf.[11]In the ET1, which Mr Bozeat presented on 28 July 2011, the date of termination of the Claimant's employment was said to be 28 April 2011. The Respondent put forward the same date of termination in their ET3. On the basis of that effective date of termination ("EDT"), the ET1 was presented one day late; the primary three-month time limit expired on 27 July 2011. In their ET3, the Respondent took that point and the PHR was fixed as a result to determine whether the claims were out of time.[12]At the hearing of the PHR, Mr Bozeat, correctly described by the Employment Judge as a professional man and an engineer (and, as is plain from his written submissions, a highly intelligent man) represented the Claimant. Miss Crabtree, an in-house solicitor, represented the Respondent. The Employment Judge had before her substantial written submissions on both sides and a substantial bundle of documents. She did not hear any oral evidence. It is said in her judgment on the subsequent review application that she told Mr Bozeat that normally, on an out of time point, the Claimant could be expected to give evidence. Mr Bozeat confirmed to her that the Claimant was too ill to attend and was content that the hearing should proceed in his absence, and said that he would therefore proceed on the basis of his written submissions.[13]In the judgment now the subject of this appeal, the Employment Judge said the same, in a more abbreviated form, at paragraph 10. The Employment Judge does not suggest that she asked Mr Bozeat if he wished to or could assist on the factual issues by giving evidence himself; and the Respondent does not suggest that she did so. I will come later to the possible consequences of that.[14]At the outset, Mr Bozeat applied to amend the ET1 so that the EDT should read "30 April" not 28 April 2011. The Employment Judge gave him permission to do so. Her giving that permission was in no way inconsistent with the first conclusion she reached, which was that the EDT was 28 April 2011. Mr Bozeat argued that the Claimant had been paid his monthly salary for April up to the end of the month, 30 April 2011; and therefore, the EDT was not 28 but 30 April 2011. In fact, when the Claimant was sent his pay in lieu of notice in May 2011, the Respondent deducted from it pay for the days of 29 and 30 April for which they had paid before deciding to dismiss. Mr Bozeat's argument was most unlikely to succeed and it did not. The dismissal letter was in clear terms. The Employment Judge correctly concluded that the Claimant's contract of employment terminated on 28 April 2011 and the Claimant's grounds of appeal which attacked that conclusion were dismissed, as were all grounds save those in the Amended Notice of Appeal put forward by Ms Prince by HHJ Shanks at the rule 3(10) Hearing.[15]Therefore, all of the claims were presented to the Tribunal one day late and were out of time. The Employment Judge's task was to decide whether, in the case of all claims other than the discrimination claim, it had been established by the Claimant that it was not reasonably practicable for the complaints to be presented before the end of the period of three months; and, in the case of the discrimination claim, whether it was just and equitable to extend time. The Tribunal's judgment[16]The Employment Judge found as fact at paragraph 12 of her judgment that Mr Bozeat knew at all material times that there was a three-month time limit for the presentation of the Claimant's claims. That finding of fact is not challenged. According to her judgment at paragraph 13, he put forward three reasons why the time limit should be extended. The first was that he believed that the time may have been extended by the existence of the Claimant's appeal against his dismissal, which had not yet been determined. The second was that he believed that time was extended by the provisions of the unlamented statutory grievance procedure. The third was that he believed that the EDT was 30 not 28 April 2011 and that he therefore had until 29 April 2011 to present his son-in-law's claims. Further, Mr Bozeat argued that he had sought on 27 April 2011 to present the ET1 by computer, but somehow had failed to get his ET1 through to the Tribunal by those means.[17]At paragraph 13 of her judgment, the Employment Judge rejected the first two of those reasons. She found that either Mr Bozeat did not so believe or, if he did, his belief had no effect upon his decision as to when the ET1 should be presented. She relied upon documents written by Mr Bozeat which showed that he knew that he had to present the Claimant's claim by a week after 20 July 2011 or lose his chance. Those conclusions are findings of fact.[18]At paragraph 14, the Employment Judge then turned to what she described as the strongest argument; that Mr Bozeat believed that the EDT was 30 April 2011. She said:
"14. That seems to be the strongest argument that the claimant has to support his argument that he believed that his employment continued until 30 April. However, against that is the very clear wording of the letter of the dismissal dated 27 April. This is a letter written after receipt of the payslip of 20/21 April. The letter of dismissal really could not be any clearer. It states accordingly: 'Your employment with the Respondent will end on 28 April 2011 and you will be paid in lieu of your notice entitlements.' Further, I consider it relevant that even if there is any strength in the argument that it was relevant that the Claimant was paid for 29 and 30 April that his payslip for May in fact deducts back to the Respondent two days' pay, a sum of £117.83. Therefore, by the end of May, there really cannot be any reasonable basis for believing that employment continued beyond 28 April, the very clear date stated in the letter of dismissal. All of the facts are consistent with the EDT being 28 April and there is nothing that rationally supports the belief that the EDT was 30 April. Even the Claimant's own ET1 as originally presented and prior to application to amend states that employment terminated on 28 April. I asked the Claimant's representative for an explanation as to why the ET1 stated this and there was nothing in his response that satisfied me that it was not proper to conclude that when the ET1 was presented that the Claimant in fact did believe that his employment had terminated on 28 April. That would tend to suggest that the application to amend to show the date of termination being 30 April is no more than an attempt by the Claimant to change the effective date of termination having realised that his claim was out of time."
Those too were conclusions of fact.[19]The Employment Judge then addressed Mr Bozeat's assertion that he had attempted to present the claim online on 27 July 2011. She said that she had had checks made to see if there was a record of any such attempt; those checks did not reveal any online contact from Mr Bozeat's address.[20]The Employment Judge then had to apply those factual conclusions to the jurisdictional issues. As to unfair dismissal, she held that the Claimant (through his father-in-law, she must have intended to say) was reasonably in a position to know that the EDT was 28 April 2011 and knew in clear terms that there was a three-month time limit; she was not satisfied, therefore, that it was not reasonably practicable to present the unfair dismissal and contract and Wages Act claims in time. As to the discrimination claim, she concluded that there was "no rational reason" for the Claimant not to have presented his claim in time for the reasons she had already indicated. She said at paragraph 19:
"19. I now turn to deal with the disability claim on which there is a slightly different approach. The Respondent reminds me in its submissions of the relevant law and reminds me of the case law which supports that extending time in a discrimination case should still remain the exception and not the rule. There needs to be something before me that satisfies me that it is just and equitable to extend time. I am not satisfied that any such circumstances exist. There simply is no rational reason for the Claimant not to have presented his claim in time for the reasons I have already indicated. I have considered that the Claimant himself is poorly but the Claimant's representative is clear that he is advancing the claim for the Claimant and I therefore consider the Claimant's representative's understanding of the situation to be the more important factor. Further, I have no evidence from the Claimant. There is an argument about the Claimant believing that his EDT was 30 April but not only did I think that that is not a reasonable belief, I think it is simply irrational. There is no force in it. The evidence does not support it and I do not exercise my discretion to extend time to allow the disability discrimination claim to proceed. Therefore, the disability discrimination claim is also dismissed."
The review[21]It is agreed between Ms Prince and Mr Palmer that I can and should look at the Employment Tribunal's review decision in considering this appeal. Mr Bozeat sought a review on numerous grounds, which it is not necessary to go through. The Employment Judge rejected the application on 21 October 2011. In her reasons for doing so, she repeated her conclusion that Mr Bozeat had known throughout that, if it was to be presented within the primary time limit, the claim had to be presented by 27 April 2011 and had sought to argue for an EDT of 30 April 2011 because he knew he had missed the deadline. She further said that she had explained to Mr Bozeat at the commencement of the hearing that, in determining an out of time point, the Tribunal might usually expect the Claimant to give evidence. However, Mr Bozeat had confirmed that the Claimant was too ill to attend and could not contribute. He therefore wished to proceed on the basis of his written and oral submissions.[22]At the end of her decision, she said:
"I am satisfied that the interests of justice have been served – Mr Bozeat was given proper opportunity to present any information or evidence that he wished to. Administrative error (page 13) I have considered this ground of review and refuse it. There is no reasonable prospect of my decision being revoked on this basis. I can discern no administrative error. The PHR was listed for 2 hours on 28 September to commence at 10.00am. I commenced the hearing at 10.55am as I wanted to read all the information before me – both parties had submitted documentation and there was correspondence on the file. I asked my clerk to inform the parties that I was reading their documentation. Further, I wished to interrogate our internal systems to be sure that there was no record of an ET1 being submitted on-line on 27 July. If there was such evidence, this was likely to be very relevant to the issue before me and I could see from the Claimant's documentation that the Claimant's father-in-law was asserting that he had attempted to present his son-in-law's ET1 on-line on 27 July. I listened to the representations from both parties until 1.00pm and during this time also considered the Claimant's application to amend his ET1 to show a date of dismissal of 30 April. I determined that application and then adjourned for lunch, indicating that I would give judgment on the preliminary issues after lunch. I commenced my judgment at 2.00pm and concluded my judgment at about 2.45 pm. I am therefore satisfied that proper time was given to determine the matters before me. Administrative error (page 16) I have considered this ground of review and refuse it. There is no reasonable prospect of my decision being revoked on this basis. I am satisfied that I made proper enquiry of the Claimant's representative regarding how he wished to progress matters on behalf of the Claimant. I am conscious of the tribunal's responsibility to itself adjust proceedings for disabled parties, but ultimately can only respond to what the parties request of me."
I have already said that it is not suggested that the Employment Judge invited Mr Bozeat himself to give evidence. I will have to return to this point later. The permitted grounds[23]It is now necessary to identify the grounds of appeal which were permitted at the rule 3(10) hearing to go forward to a full hearing of the appeal. In summary, they are that:(1) In relation to the just and equitable extension of time, the Employment Judge failed to take account of or give sufficient weight to the length of the delay, the relative prejudice caused by granting or refusing the extension of time sought, and the fact that an internal appeal was still proceeding at the relevant time.(2) In relation to both reasonable practicability and a just and equitable extension, the Tribunal erred in failing to hear any evidence.(3) In relation to the reasonably practicable issue, the Tribunal erred in failing to hear evidence from Mr Bozeat as to his understanding that the EDT was 30 April 2011 and as to his attempt on 27 July 2011 to submit the claim by computer. Failure to take factors into account[24]This ground goes only to the Employment Judge's decision that it was not just and equitable to extend time in the case of the discrimination claim.[25]The Claimant's case as to the length and impact of the delay is based on the well known passage in paragraph 8 of the judgment of the Employment Appeal Tribunal (Smith J presiding) in British Coal Corporation v Mrs J Keeble & Others [1997] IRLR 336 , which is as follows:
"8. [...] (the court should) consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and in particular inter alia, to (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had cooperated with any requests for information; (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; (e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."
[26]Ms Prince recognised that the Court of Appeal in London Borough of Southwark v Afolabi [2003] IRLR 220 said that it was not necessary for an Employment Tribunal to go through that list of factors in every case, provided that no significant factor was left out of account; but, she submitted, in this case the length and effect of the delay were relevant but were not mentioned by the Employment Judge; nor was the ongoing internal appeal. She relied upon the judgement of the EAT in Osborne v Royal Brompton & Harefield NHS Trust [2009] UKEAT/0549/08, Cox J judgment 31 March 2009, in which it was said, at paragraph 21, that the Tribunal's reasons, if they were to be adequate (i.e., what is commonly called " Meek -compliant" ( Meek v City of Birmingham District Council [1987] IRLR 250 )), should set out why the factors substantially relied upon by one side or the other were rejected or accepted. However, in this case, she submitted, the judgment did not address the length and effect of the delay at all. Ms Prince put forward similar reasoning in respect of the internal appeal.[27]Mr Palmer, on behalf of the Respondent, submitted that the Employment Judge had, when her judgment was read as a whole, correctly applied the law on the found facts upon which she based the exercise of her discretion, and gave sound and detailed reasons for her conclusions. He submitted that in effect the Claimant was seeking to attack findings of fact, without arguing perversity and when it could not be demonstrated that the Employment Judge had made any factual decision which no reasonable Employment Judge could make. He reminded us of the clear guidance given by the Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434 and, more recently, in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 that the Employment Tribunal, in exercising its discretion to extend time under the just and equitable provision, has a wide discretion which should not be interfered with unless the Tribunal was shown to have erred in principal or was otherwise plainly wrong, i.e. had reached a perverse conclusion.[28]I, of course, fully accept the principles set out in those two decisions of the Court of Appeal. I accept that the factors listed in the passage from British Coal Corporation v Keeble , which is familiar to all who enter upon this frequently visited territory and which has been approved by the Court of Appeal, do not have to be expressly considered in every case (see Afolabi above) and have to be applied on a fact-specific basis (see DCA v Jones [2008] IRLR 125, which was not one of the total of no less than 26 authorities put before me, but is referred to in Caston at paragraph 25).[29]In my judgment, however, it is beyond argument that in this case the facts that the ET1 was only one day late and that there was no evidence or suggestion that that delay had prejudiced the Respondent or reduced the cogency of the case which they might wish to put forward were considerations or factors relevant to the exercise of the just and equitable discretion. Yet, they find they no place in the Employment Judge's reasoning. If, as may have been open to her, she gave those factors less weight than the factors to which she does refer in her judgment where she addressed the just and equitable issue, she did not give reasons for doing so. If she did not consider those factors at all, in the specific circumstances of this case it is my judgment that she should have done so. By either route, I have come to the conclusion that there was in this respect an error of law.[30]I do not take the same view about the absence of any reference in paragraphs 15 to 19 to the Employment Judge's judgment of any reference to the internal appeal. The Employment Judge referred expressly to this point at paragraph 13. She concluded first that Mr Bozeat did not believe in any extension of time arising from that and, if he did, it did not have any impact on his knowledge as to when the ET1 had to be presented. As I have said, these were findings of fact which, in the light in particular of the email of 20 July 2011 and subject to the second ground of appeal as to the absence of any oral evidence, the Employment Judge was entitled to reach. Absence of oral evidence[31]I have set out above what happened at the hearing in respect of evidence. Ms Prince's criticisms of the Employment Judge reaching her decision without any oral evidence go both to her conclusion on the just and equitable extension and to the conclusion as to reasonable practicability.[32]She began her argument by reference to Bache v Essex County Council [2000] IRLR 251, in which Mummery LJ, at paragraph 35, said:
"35. I would dismiss the appeal for the same reasons as Peter Gibson LJ. I would add the following general comments in view of the particular difficulties sometimes encountered by tribunals in hearing cases conducted by lay representatives as well as by parties acting in person. (1) At the hearing the tribunal must follow a procedure which is fair to both sides. It must normally allow each party to call relevant evidence, to ask relevant questions of the other side's witnesses and to make relevant submissions on the evidence and the law. (2) The tribunal is responsible for the fair conduct of the hearing. It is in control. Neither the parties nor their representatives are in control of the hearing. (3) Procedural fairness applies to the conduct of all those involved in the hearing. Just as the tribunal is under a duty to behave fairly, so are the parties and their representatives. The tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side's evidence and in making submissions. The rulings of the tribunal on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with a ruling. If the party and his representative disagree with a ruling, an appeal lies against it if the tribunal has made an error of law. (4) A tribunal makes an error of law in its procedural rulings if it either has no power to make the ruling or if, in the exercise if its discretion, it makes a ruling which is plainly wrong in the sense that no tribunal properly instructed could have made that ruling. […]"
[33]However, while that guidance is both important and valuable, it must be recognised that the Court of Appeal in that case were considering a procedural error in the context of a substantive unfair dismissal hearing. It is far from necessary, where a preliminary interlocutory issue has to be determined by a Tribunal, that that Tribunal must always hear oral evidence. More direct guidance for the purposes of the present appeal is to be found in appellate decisions in cases in which the Tribunal had to resolve out of time points.[34]Ms Prince relied next on Arthur v London Eastern Railway (t/a One Stansted Express [2006] EWCA Civ 1358 , which moves closer to that subject matter. The Claimant claimed to have been the victim of detriment as a result of making protected disclosures. He claimed that there had been a series of acts against him from 2001, leading up to the presentation of the ET1 in July 2004. At a PHR, the Employment Tribunal held that some (although not all) of the incidents complained of took place prior to three months before that presentation and were out of time. There was insufficient linkage between the events complained of to constitute a series of similar acts or failures, of which those complaints which were in time were part. An appeal to the Employment Appeal Tribunal failed, but the Court of Appeal allowed the Claimant's appeal. At paragraphs 33 to 35, Mummery LJ said:
"33. The question is whether the tribunal erred in law in determining the important time limit point in the way that it did, solely on the basis of legal argument and without hearing any evidence or making any findings of fact. In my judgment, it did. The difficulty with the decisions of the tribunals below is that, in my view, it is not a particularly enlightening exercise to ask whether, as a matter of construction, "the motive" for the acts is a relevant link between acts to make them part of a series or to make them part of a series or to make them similar acts. Nor does it advance matters much to ask in the abstract what makes acts part of a series or what makes one act similar to another act. 34. In my judgment, it is preferable to find the facts before attempting to apply the law. I do not think that this is a strike out situation in which assumptions have to be made as to the truth of the facts in order to decide whether there is a cause of action. It is assumed at this stage that the acts (and failures) alleged occurred and that the complainant may be able to establish a cause of action in respect of the acts within the 3 month period. The question is whether he can bring in pre-14 April 2004 acts as part of the claim. 35. In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. [...]"
However, that, too, was not an appeal directly on an extension of time point. It was accepted that there were no grounds for an extension of time; the series of acts issue was determinative.[35]In her skeleton argument, Ms Prince took us next to Iya-Nya v British Airways plc UKEAT/0302/07 (Wilkie J presiding, judgment 17 January 2008), in which the Employment Tribunal struck out the claimant's claims to have suffered detriment for making protected disclosures. The Employment Tribunal had to decide whether the claimant, when she made the disclosures, reasonably believed that the matters which she drew to the respondent's attention constituted a risk to health and safety and whether she was acting in good faith. The Tribunal heard only very limited evidence and did not allow evidence which the respondent wished to call because, on their case, it was relevant to the protected disclosure issues. At paragraph 9, the EAT said:
"9. In addition, one of the main planks of the Respondent's case was that these complaints brought under the health and safety provisions of the legislation were not brought in good faith but were opportunistically brought by reason of the fact that there was an otherwise comprehensive compromise agreement which precluded that the Claimant bring any other type of claim, other than the ones which she brought. In our judgment, the Employment Tribunal disabled itself from forming a proper view as to the bona fides or otherwise of the claims brought by not requiring Ms Iya-Nya to give evidence on oath and to be subject to cross-examination in order that the Tribunal might form a view as to her bona fides or otherwise."
[36]With these dicta, we can move much closer to the present subject matter. In Outokumpu Stainless Limited v Law UKEAT/0199/07 (Beatson J, judgement 4 October 2007), the Tribunal found that the claims were out of time but that it was just and equitable to extend time. The EAT allowed the respondent's appeal on their first ground that the Tribunal had failed correctly to analyse when the time limit expired. The respondent's second ground was that the Tribunal had reached their conclusion without hearing any evidence. As to that, the EAT said at paragraphs 17 and 18:
"17. Although it is not necessary to do so, I shall deal with the second ground of appeal briefly. The fact that the Tribunal heard no evidence from the Claimant as to the reason for his delay is troubling. The Tribunal rejected the Claimant's solicitor's default as a basis for exercising its discretion: see paragraph 12 of the reasons. In Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 Mr Justice Elias stated that it is highly material that the failures are those of a solicitor rather than the client, and that the errors of a solicitor should not be visited on the client's head. In the light of Virdi's case what the Tribunal did in this case may have been a misdirection. Be that as it may, however, in the absence of evidence from the Claimant, the only matter which could have weighed with the Tribunal in favour of extending time was the fact that the Claimant would otherwise lose a potentially valuable claim. 18. Bearing in mind the width of the discretion to extend time, and the circumstances in which it is proper for this Tribunal to set aside the decision of a Tribunal extending time, the decision to do so without the Claimant's evidence in all the circumstances of this case raises a question. Where a Claimant does not put evidence before a Tribunal in support of his application, explaining his delay and saying why an extension should be granted, how can the Tribunal be convinced that it is just and equitable to extend time? In Bexley Community Centre v Robertson [2003] IRLR 434 at paragraph 25 Lord Justice Auld stated the Tribunal had to be convinced of this. His Lordship stated that the exercise of the discretion to extend time is the exception rather than the rule, because a Tribunal cannot hear a complainant unless the applicant convinces it that it is just and equitable to extend time."
[37]Lastly in this sequence, assistance is to be derived from the EAT's decision in Accurist Watches Limited v Wadher UKEAT/0102/09 (Underhill J, Judgment 23 February 2009), another respondent's appeal against the conclusion of the Employment Tribunal that it was just and equitable to extend time. The circumstances were not wholly dissimilar to those of the present case in that the claimant was off work with depression and stress. As a result, his son-in-law conducted his dispute with the respondent and the litigation which arose from it. The ET1 was presented five weeks late; the issue was whether it was just and equitable to extend time. The Employment Judge indicated to counsel for the claimant in argument that he needed oral evidence, but counsel did not call the claimant's son-in-law; the claimant was not present. There were no witness statements. The respondent's appeal failed. At paragraphs 15 to 18, the EAT said:
"15. I start with the first submission. Mr Wynne submits, and I accept, that it is always necessary, in the exercise of the discretion to extend time on the basis that it is just and equitable to do so, for a tribunal to identify the cause of the claimant's failure to bring the claim with the primary time limit. Mr Wynne, however, goes further and submits that in every case the tribunal's finding on that question must be based on the witness evidence – that is, typically, evidence set out in a witness statement, supported by a declaration of truth, and in respect of which (absent special circumstances) the respondent has had the opportunity to cross-examine. He concedes that the evidence might sometimes be of a hearsay character but it must nevertheless be given in that form. He relies on rule 3.9(2) of the Civil Procedure Rules, which, in the context of applications for relief from sanctions, provides that any application for relief must be supported by evidence, which in the CPR means evidence in witness statement form. He says that that rule ought to apply by analogy in cases such as the present. 16. I do not accept that submission. I agree with Mr Wynne that in any case where findings of fact need to be made for the purpose of a discretionary decision – including but not limited to decisions about the reasons for delay in the context of a time point – it will always be good practice for the parties to adduce evidence in the form of a witness statement (with the possibility of cross-examination where appropriate) setting out any facts on which they wish to rely. Parties who fail to take that course will run the risk that they are simply unable to prove matters on the basis of which the tribunal could be invited to exercise the discretion in question. It is clear that the Judge was aware that that was the usual and desirable course; he specifically drew Mr Gorden's attentions to the risks of proceeding without witness evidence. But I can see no basis in the Employment Tribunal Rules for making it an absolute requirement that evidence be adduced in that form. The practice of the employment tribunals generally has been to eschew evidential formalities, and although the provisions have changed over the years there remains a reflection of that in rule 14.2 of the current Rules (albeit that that is concerned with a more particular point). In my view a tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question – that is, in a case like the present, as to the explanation for the delay. Such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents. 17. I was referred in this connection to the decision of this Tribunal (Beatson J sitting alone) in Outokumpo Stainless Ltd v Law (UKEAT/0119/07). That was a case in which a claimant was seeking an extension of time but the employment tribunal had heard no evidence from him as to the reason for his delay. Beatson J described that omission as 'troubling' (see para. 17) and went on to say this at para. 18: 'Where a claimant does not put evidence before a tribunal in support of his application explaining his delay and saying why an extension should be granted now, how can the tribunal be convinced that it is just and equitable to extend time?' I entirely agree with and endorse that observation insofar as it makes clear that there must be evidence before the tribunal. But Beatson J was not concerned with the question of the form that that evidence must take, and I do not read his observations as in any way insisting on the evidence taking the form of a witness statement. 18. I would not want, by my rejection of Mr Wynne's submission on this point, to be taken as encouraging parties on interlocutory applications of this kind to take a relaxed approach to how the necessary evidence is put before the tribunal or to rely on wholly indirect or informal evidence of the kind to which I have referred. On the contrary, I repeat that the submission of a witness statement will always be good practice; and it may often, depending on the nature of the matters to be relied on, be essential. Tribunals may rightly be unwilling to draw inferences as to the cause of, or justification for, any delay in circumstances where direct evidence could and should have been supplied."
[38]In the light of these authorities, Ms Prince submitted that it was not sufficient for the Employment Judge to proceed without evidence on the basis that the Claimant was unavailable to give evidence and Mr Bozeat had not proposed that he should give evidence. The Tribunal's duty to explain to a litigant in person the alternatives, which confronted him in presenting his case, as exemplified by the Court of Appeal in Radakovits v Abbey National plc [2010] IRLR 307 and Mehta v Child Support Agency EAT/0127/10 (Underhill J presiding, judgment 5 November 2010), which in the former case expressly included the provision of an explanation that a party may be prejudiced if he fails to give evidence, should have led the Tribunal to point out to Mr Bozeat that the Claimant's case might suffer if he did not give evidence. Mr Bozeat's evidence could have encompassed, Ms Prince submitted, three areas: his belief that the EDT was 30 April 2011; the failed attempt to present the ET1 by computer on 27 April 2011; and the effect on his mind of the ongoing appeal.[39]Mr Palmer submitted that the Employment Judge had before her a wealth of evidence, including extensive documentation, running to about 120 pages, and a very detailed written submission put together by Mr Bozeat which set out his case in its entirety. It was followed by a further written submission in response to the Respondent's response to the claim and for the purposes of the PHR. The judge and Mr Bozeat had discussed how to proceed; Mr Bozeat had not offered to give oral evidence; the judge was not under any obligation to help Mr Bozeat. The absence of a suggestion by the judge that Mr Bozeat should give evidence did not amount to an error of law.[40]He further submitted that there was in any event no relevant evidence which Mr Bozeat could have given. No evidence as to his belief that the EDT was 30 April 2011 could have sufficed to achieve any other result than that reached by the Employment Judge. The ET1 specified 28 April 2011 as the EDT; that was accepted in the ET3. No application was made to amend until the last moment and the Employment Judge had as fact concluded that Mr Bozeat knew 28 April 2011 to be the vital date. No oral evidence would have helped in these circumstances, nor would any such evidence have taken the Claimant's case further in respect of the effect of the appeal or the failed attempt at presentation of the claim by computer. As to the former, the email of 20 July 2011, together with the other material in the bundle, could not be explained away by oral evidence. As to the latter, the Employment Judge did not disbelieve Mr Bozeat.[41]Mr Palmer referred to De Souza v Manpower UK Limited EAT/0234/12 (HHJ Peter Clark presiding, judgment 12/12/12) in which, the ET1 being a day late, the claimant did not successfully rely on the reasonable practicability escape clause and it was held not to be just and equitable to extend time. He drew our attention to paragraph 11 of the EAT's judgment in that case where the EAT decided not to interfere with the Employment Tribunal's conclusion that "fault for the delay lay entirely with the Claimant" as, Mr Palmer submitted, the Employment Judge had effectively concluded in the present case.[42]The authorities do not establish that it is essential in every case in which the Claimant seeks an extension of time (under the reasonable practicability escape clause or on a just and equitable basis) that there should be oral evidence from the Claimant or, indeed, from the Respondent or, if someone else was responsible on the Claimant's behalf for pursuing his claim, from that person if an extension of time is to be granted. Despite the extract from Outokumpu which I have set out above, there may be cases in which the primary facts are not in dispute or in which (particularly in the case of the reasonable practicability escape clause) the facts which are not in dispute lead to an inescapable conclusion in which oral evidence would serve no purpose. It is important that the reasonable practicability provisions allow only a narrow path to escape from the effects of the operation of the primary time limit. The Employment Tribunal's decision lies in a much more restricted field than that of the considerably wider discretion to extend time on the just and equitable basis. There are likely to be many cases in which, while the Tribunal is unlikely to regard it as right to exclude oral evidence if a party wishes to give it, the Tribunal will not fall into error if it does not take steps to ensure that evidence is given or makes a decision without such evidence.[43]Such cases may also arise when the just and equitable discretion is being considered, but they are likely to be much rarer. In any case in which the Claimant puts forward a potentially relevant factual assertion in support of his case that time should be extended on a just and equitable basis and that factual assertion is challenge as untrue or incorrect, the Employment Tribunal should not ordinarily reject that assertion unless the claimant or his relevant witness (in a case such as this, Mr Bozeat, and in a case such as Accurist Watches Limited , the claimant's son) has been given an opportunity to give oral evidence and, if he is unrepresented, informed of the possibility that his case may suffer if such evidence is not given.[44]How do these principles, which appear to me to be uncontentious, apply in the present case? So far as the just and equitable discretion is concerned, in my judgment the Employment Judge erred in failing, consistently with the principles in Radakovits and Mehta as she should have done, to point out to Mr Bozeat that the Claimant's case might be prejudiced if he did not give evidence. It was clear that the Claimant himself was in no fit state to give evidence. In any event, the Claimant had, on the material before the Tribunal, played no part in the preparation of his case or the presentation of it. That had all been carried out by Mr Bozeat. The discussion about the Claimant's evidence was beside the point. If evidence was to be given, it needed to come from Mr Bozeat. The Employment Judge's inquiries of Mr Bozeat as to whether the Claimant could give evidence reveal a proper concern about the potential importance of evidence where there were disputed issues of fact. Those issues, if they were to be addressed by oral evidence, had to be addressed by Mr Bozeat and not the Claimant. To proceed without indicating to Mr Bozeat that it was his evidence which might be important and not that of the Claimant, and without suggesting that the Claimant's case might suffer if Mr Bozeat did not give evidence, constituted, in my judgment, an error of law.[45]While the evidence as to the absence of any effect on Mr Bozeat's understanding of the EDT or of the Claimant's appeal was very strong and oral evidence might very well not have made any difference, I am unable to rule out the possibility that evidence might have made a difference to the factual conclusions which the Employment Judge reached. However, she appears to have rejected his case as to the attempt to present the ET1 by computer on 27 April 2011. These factual issues were potentially relevant to the grant or refusal of an extension of time on a just and equitable basis. In the absence of any opportunity expressly given to Mr Bozeat by the judge to give evidence himself, there was, I conclude, an error of law.[46]However, oral evidence on those areas of fact would not, in my judgment, even arguably have affected the resolution of the application of the reasonable practicability escape clause. The principles which apply to the Tribunal's consideration of the escape clause are well established. The test is: was it reasonably feasible to present the complaint within the relevant primary time limit? (See Palmer v Southend-on-Sea Borough Council [1984] IRLR 119.)[47]On the facts of this case, there was only one permissible answer to that question. Mr Bozeat's documents made clear his knowledge that there was a three-month time limit in respect of the Claimant's appeal. Whether or not he believed that the EDT was 30 April as opposed to 28 April 2011 and whether or not he attempted to present the claim by computer on 27 April 2011, any argument that it was not reasonably feasible for him to have presented the claim earlier than 27 April was bound to fail. It is open to a Tribunal to conclude that where there is no ignorance as to the time limit, it is reasonably feasible for a claimant, or somebody acting on his behalf, to present an ET1 to the Employment Tribunal, without waiting until the last possible moment or until a stage which is very close to the last possible moment. Nothing in the case of John Lewis Partnership v Charman UKEAT/0079/11 to which Ms Prince referred in reply affects that proposition.[48]For these reasons, I have come to the conclusion that there was no error of law in relation to the reasonable practicability issue. Or, if there was such an error of law arising from the absence of evidence from Mr Bozeat, as Mummery LJ pointed out in Bache , it is clear that the result reached by the Employment Tribunal was unarguably right. The appeal should not succeed and in my judgment, so far as this part of the appeal is concerned, it does not succeed. The third ground[49]The third ground of appeal has, in essence, been addressed by what I have said in relation to the second ground. In my judgment, evidence from Mr Bozeat would not have led to any different conclusion on the reasonable practicability issue. Whether the EDT was 28 or 30 April 2011 and whether or not the attempt to present the claim on 27 April 2011 was made, it was inescapable that it was reasonably feasible for the claim to have been presented in time. Nothing rendered it impracticable for Mr Bozeat, if he was acting reasonably, to present the claim before the last day or last few days before the time limit expired or prevented him from presenting it earlier. Conclusion[50]For the reasons I have set out, the appeal against the dismissal of the discrimination claim by the Employment Judge is allowed. The appeal against the dismissal by the Employment Judge of the other claims is dismissed. The question of whether it was just and equitable to extend the time for the discrimination claim must be remitted for reconsideration by the Employment Tribunal. The parties agreed that, if there were to be such a remission, it should be to a different Employment Judge, and I so order.