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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McBean v. Whimster (t/a Whimster Solicitors) [2000] UKEAT 1478_99_2403 (24 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1478_99_2403.html Cite as: [2000] UKEAT 1478_99_2403

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APPEARANCES

 

For the Appellant	Mr Brown Representative Lewisham Law Centre Ltd 28 Deptford High Street London SE8 4AF
For the Respondent	Miss Cafferkey (of Counsel) Messrs Williams Solicitors 5 Delacourt Road Blackheath London SE3 8XA


 


JUDGE COLLINS:

1. This case is listed as the preliminary hearing of an appeal from the decision of an employment tribunal sitting at Ashford whose extended reasons were promulgated on 25 November 1999. The respondents are in fact represented today by Miss Cafferkey and with her agreement, we have treated this hearing as the hearing of the appeal. The decision of the tribunal was that the appellant's applications based on sexual discrimination and racial discrimination were out of time and it was not just and equitable to allow them to proceed.
2. The facts were that the appellant was a paralegal employed in one of the respondent solicitor's offices. In the later part of 1998 it appeared that work at the Plumstead branch where the appellant worked was on the downturn and staff had been informed informally in December 1998 that the office would be closing early in the New Year. On 18 February Mr Whimster wrote to Miss McBean in these terms:-

"I am writing to confirm the closure of the above office officially. As you know closure was discussed before Christmas and it was set for end February 1999. The office is therefore officially closed from 1 March 1999. I have asked the accountant to prepare the P45 and it will be forwarded to you as soon as it is available."

3. Now the question for the tribunal was whether the appellant's employment terminated on Monday 1 March 1999, in which case her originating application would have been just in time because it was received at the tribunal on 28 May, or whether the employment terminated on Friday 26 February, in which case it was three days out of time. It is important to note that no point is taken in the respondent's Notice of Appearance that the applications were out of time. The point was not taken until counsel rose to his feet before the tribunal on 3 November and although the tribunal deplored the fact that the point was raised late, since it went to jurisdiction they rightly thought that they ought to determine it. The decision of the tribunal was that the appellant's employment terminated on 26 February and therefore the applications were strictly out of time. We determine that there is no reasonably arguable point of law arising out of that issue; whether the employment ended on the Friday or the Sunday is immaterial, because it is only if the employment ended on the Monday that her applications would have been in time.
4. The letter itself is ambiguous. Although it states the date from which the Plumstead offices were closed, it does not state in terms that that is the also the date when the appellant's employment is to terminate. As a matter of fact and law, the one need not follow from the other. As I have already indicated the respondent did have another office. Bearing in mind the ambiguity, the tribunal decided after looking at all the facts of the case and considering what the appellant herself must have understood from the circumstances and as a result of her legal knowledge and background, that she must have understood from the receipt of the letter that the last day of her employment was to be Friday 26 . They were entitled to come to this conclusion.
5. The tribunal then went on to consider whether or not it was just and equitable in all the circumstances to allow the applications to proceed in paragraph 29 of their reasons: -

"The Tribunal concluded that given Ms McBean's legal training and work experience, given her knowledge of time limits and the particular time limit relating to her claims before the Tribunal, given that she had access to professional advice both informally and formally at the Law Centre and given that she had not been misled by the Respondent in terms of information supplied to her, then there was no grounds for extending the time limit on a just and equitable basis."

In our judgment the tribunal misdirected itself in concluding that the appellant had not been misled. As we have already stated, the letter of 18 February was ambiguous. It was impossible for the appellant to know what legal decision would be made about the date of termination of her employment until the tribunal actually gave judgment on the point. The respondent had not taken the point in his Notice of Appearance. It seems to us in those circumstances that the decision that even though she was only three days late in making her applications it was not just and equitable to allow them to proceed was a harsh one which no reasonable tribunal could have made. Without, of course, giving any indication whatsoever of the appellant's prospects of success as we have not looked at the merits of any application she might make, we conclude that the appeal must succeed. We determine that it is just and equitable to allow the applications to proceed. The matter will be remitted to the tribunal for hearing on the merits.