Appeal No. EAT/170/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 September 1994

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR J G GALBRAITH CB

	MRS E HART

CORNERSTONE ESTATE AGENCY LTD	APPELLANTS

MISS J PRATT	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr M Fodder
	(of Counsel)
	Browne Jackson
	44 Castle Gate
	Nottingham
	NG1 7NJ	

For the Respondent	Mrs T Gill
(Representative)

	JUDGE HICKS:  Miss Pratt was employed by the Appellants, Cornerstone Estate Agency Ltd, until she was dismissed in March or April 1993.  There was an issue between the parties whether the effective date of termination for the purposes of the time limit for presentation of an application to the Industrial Tribunal was 9 March, as the Appellants contended, or 6 April, the date asserted by Miss Pratt, or some intermediate date such as 18 March, when the Appellants wrote a letter to Miss Pratt which played a prominent part in the arguments before both the Industrial Tribunal and this tribunal.  Miss Pratt presented an application to the Industrial Tribunal on 6 July 1993, which was one day out of time on her case and four weeks on the Appellants'.  It was in form an application on the ground of unfair dismissal only, but in the light of the full details which she gave of her complaint it was treated by the Industrial Tribunal as being also on the ground of sex discrimination, and that is not challenged.

2.  In those circumstances there was a preliminary hearing before the Industrial Tribunal on 12 November 1993 of the issue whether the tribunal had jurisdiction to entertain each of the two complaints.  The tribunal found that the effective date of termination was 6 April 1993 but that for the purposes of the complaint of unfair dismissal it was, whatever the effective date of termination, not reasonably practicable for Miss Pratt to present her application within the prescribed period and that she did present it within such further period as the tribunal considered reasonable.  For the purposes of the complaint of sex discrimination they found that it was just and equitable for that complaint to be considered, although out of time.  They therefore held that there was jurisdiction to entertain both complaints.  The Appellants appeal to this tribunal against that decision.

3.  In the arguments before the Industrial Tribunal, in their Reasons and in the arguments before us a substantial amount of time and attention was devoted to the question what was the effective date of termination.  Whatever the situation below, however, a striking feature of the positions adopted by the parties before us was that, in reply to repeated enquiries from this tribunal, both Mr Fodder for the Appellants and Ms Gill for the Respondent explicitly accepted, and indeed contended, that the considerations to be taken into account on what might compendiously be called the 'extension' issues were not affected by the outcome of the 'date of termination' issue.  On that basis the 'extension' issues are clearly determinative of the whole appeal, and we accordingly turn to them first.

4.  Consideration of the question whether it was reasonably practicable for Miss Pratt to present her unfair dismissal complaint in time centred on her state of health, and we set out the relevant findings and conclusions of the Industrial Tribunal, as expressed in their Reasons:

"2.(a)  Miss Pratt was absent from work from 23 November 1992, because of illness.  At the beginning of March 1993, she signified her intention to return to work, ....

3.  It was clear from the evidence of the Applicant that she understood that there was a three months time limit for lodging an application to the Tribunal.  She believed that the three months ran from 6 April, ....  Furthermore, she thought that the last date of that period was 6 July rather than 5 July.  She had known that there was a 14 day period for lodging her internal appeal, and she had fulfilled that requirement, although leaving it until the last day of the 14 days. Her explanation for the delay in lodging her application, once she knew that her appeal had been dismissed, was that the sickness which caused her prolonged absence was depression.  She continued to suffer from that depression after her dismissal.  She relied upon a letter from her doctor which referred to her condition as "depressive illness" and that the effects of it were that she was unable to sleep at night, unable to think clearly or concentrate, and unable to do her work.  She was treated with drugs and referred for psychotherapy.  According to that letter, on 5 February 1993 a report had been written to her employer's medical adviser and it had been stated that the General Practitioner did not see a return to work "in the immediate future".  This seemed to fit with the evidence of the Applicant to the Tribunal that she had to steel herself to go back to work, not because she was fit, but because she considered that her job was under threat and she felt that she should go back in order to safeguard it.  Quite simply, her explanation for the delay was that the depressive illness had a debilitating effect upon her and she could not decide whether she would be able to cope with the bringing of proceedings and the consequences of doing so.  It was noted by Counsel for the Respondents that the report from the General Practitioner, Dr Clements, did not refer to any medical condition continuing after 8 March 1993.  She invited the Tribunal to conclude that there was no evidence of such illness after that date.  However, in the view of the Tribunal, the evidence of the Applicant was sufficient to establish that fact, given the corroboration of the medical report, and to accept the proposition put forward by Counsel for the Respondents, we would have to infer that the dismissal caused a miraculous recovery from depression, and that is not an inference which we would consider it sensible to draw.

6.  .... we accept the argument of the Applicant that it was not reasonably practicable for her to lodge the application before she did, because of the debilitating effect of her depressive illness.  We consider that illness was just as real an impediment as though she had been physically crippled.  She was disabled from making rational judgments and decisions, until the point where she believed, in her own mind, that she had to make a decision and she then overcame her difficulty. ...."

5.  Mr Fodder submits that the tribunal's findings as to the persistence and effect of Miss Pratt's illness cannot be supported, since the medical evidence took matters only to 8 March, but in our view those were issues of fact for the tribunal and raise no point of law.

6.  Mr Fodder further submits, however, that even given those findings it was Miss Pratt's mistake as to the relevant date, not her illness, which caused her application to be late, and he referred us to authorities for his propositions that ignorance of (Wall's Meat Co Ltd v Khan [1978] IRLR 499, at para.33) or mistake as to (Times Newspapers Ltd v O'Regan [1977] IRLR 101) the time limit or date do not excuse the applicant, unless the ignorance or mistake was reasonable (Riley v Tesco Stores Ltd [1980] IRLR 103, at para.10(3)).  The 'leaving it to the last minute' syndrome, he said, would not have been causal without the  mistake.

7.  Ms Gill referred us to a passage in the judgment of the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, at paragraph 35, including the following:

"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie.  ....  It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit, .... ."
She also reminded us of the familiar admonitions to this tribunal by Lord Donaldson in Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309, at paragraphs 15 to 19.

8.  On this issue we unfortunately find ourselves divided.  One of us considers that there is force in the Appellants' arguments.  He agrees with Mr Fodder that it was Miss Pratt's mistake which was responsible for her application's being one day out of time.  She was not mistaken about official procedures, as was the respondent in Wall's Meat Co Ltd v Khan; she simply made what is presumably a common miscalculation.  Since mistakes of this kind are not accepted as valid reasons for late applications he believes that in addition to referring to the debilitating effects of the depressive illness it was incumbent on the tribunal to have enquired specifically into the circumstances of the mistake, and why it was not corrected through enquiry or advisory literature provided, before they reached their decision that it was not reasonably practicable for Miss Pratt to meet the deadline.  It is the absence of recognition by the tribunal of the need to satisfy themselves on such questions which in his view results in there not being the evidence to support the decision or to satisfy the criterion "not reasonably practicable".  He would therefore allow the appeal in respect of unfair dismissal.

9.  The majority, however, consider that the decision of the Industrial Tribunal should be upheld on this point, for the reasons set out below.  

10.  In the first place, we consider that whether it was reasonably practicable for Miss Pratt, in the circumstances found by the Industrial Tribunal, to present her application in time, remained a question of fact for them within the principle stated in the citation from Palmer's case above.  That those circumstances included both her illness and her mistaken belief about the last date and necessitated consideration of the relationship between those two matters does not take the question out of the realm of fact into that of law.  Mr Fodder's submissions sought to persuade us to a different conclusion from that of the tribunal rather than identified any misdirection of law in their Reasons.

11.  In case we are wrong to dismiss the issue so simply, however, we turn to the competing analyses urged upon us of the situation described in the tribunal's findings.  These were advanced, for the most part, in terms of causation, Mr Fodder laying stress on the mistake and Ms Gill on the illness.  We are not entirely clear whether either of them went so far as to maintain that his or her favoured candidate was the sole cause, but if so we reject that as unsustainable; clearly each element played a part.  Most of the argument tacitly accepted that fact and manoeuvred for position over the much fought-over and notoriously treacherous battlefield of the test to be applied in choosing between concurrent causes.  Mr Fodder's submission, already noted, that the illness would not have been causal without the mistake attempts to take advantage of a 'but for'  test with the onus in his favour, but he did not give any reason why, if that is the test, it should operate in his direction rather than in reverse.  Ms Gill was inclined at first, as we understood her, to adopt the formulation 'what was the substantial cause' from Palmer's case, but acknowledged the attraction of turning Mr Fodder on his head.  

12.  If we had to decide matters on that basis we should find it a difficult task, but in our view the necessity does not arise.  The starting point, as always, must be the statute.  Section 67(2) of the Employment Protection (Consolidation) Act 1978 provides, in effect, that a complaint shall not be considered unless presented within the prescribed time 'or 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 the period of three months'.  It is therefore the situation 'before the end of the period' which is in question, and in our view the tribunal did not err in law in directing its attention to the effect of Miss Pratt's illness on her ability to present her application  throughout the time covered by that expression.  If she was in the illness-induced state of indecision and irrationality found by the tribunal then it is a fact that she was in it, whatever may have been the effect of mistakes about dates on the duration of that state.  The tribunal may even have been too favourable to the Appellants if by stating that 'she then overcame her difficulty' they imply that at that point she was fully recovered - it is not at all obvious that panicky last-minute action by depressives is any more fully rational than the preceding period of  immobility - but we are not called upon to pass on that, since their findings as they stand are sufficient for their conclusions.          

13.  We therefore conclude, by a majority, that the Industrial Tribunal did not err in law in reaching its decision on the issue of reasonable practicability, and this is the end of the part of our Judgment which sets out our separate views on that point.

14.  There was no separate challenge to or argument about the tribunal's finding that the application was presented within such further period as the tribunal considered reasonable, so we need say nothing about that.

15.  We can be almost equally brief about the tribunal's decision that it was just and equitable that the sex discrimination complaint should proceed, although presented out of time.  The statute here bestows a wide discretion on the tribunal, and we are unanimously of the view that their decision is unimpeachable.

16.  It will be apparent from the reasons which we have given for our decisions on the 'extension' issues that they do not call in question the agreement recorded in paragraph 3 above that they are not dependent upon, or affected by, the outcome of the 'date of termination' issue.  They are therefore, as adumbrated in that paragraph, determinative of the whole appeal.  We need not therefore express any view about the Industrial Tribunal's decision on the question what was the effective date of termination.  In the event, for the reasons given above, the appeal is dismissed.