Appeal No.  EAT/0270/03/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 July 2003

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR. T HAYWARD

MRS D DEFER-WYATT	APPELLANT

MR BRENIG WILLIAMS & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR. PIERS CHADWICK
Representative
KLC Advisory Services
86 Smithbrook Kilns
Horsham Road
Cranleigh,
Surrey GU6 8LJ	
For the Respondents	MS ANYA PROOPS
(of Counsel)
Instructed by:
Messrs Addleshaw Goddard 
Solicitors
150 Aldersgate Street
London EC1A 4EJ	

HIS HONOUR JUDGE PETER CLARK

1.	This is an appeal by Mrs Diana Defer-Wyatt, the Applicant before the London (South) Employment Tribunal against that Tribunal’s decision promulgated with extended reasons on 29 January 2003, dismissing her complaints of unfair constructive dismissal and breach of contract brought against her former employer, the Respondent ECIA, on the grounds that both were time-barred.  A further complaint of disability discrimination was withdrawn by the Appellant.

The Facts
2.	The Appellant was a long standing employee of the Respondent, her employment having commenced in 1978.  She held the post of Personal Assistant to the Chief Executive, Mr. Brenig Williams.

3.	In circumstances which do not directly concern us in this appeal, she wrote a letter of resignation to Mr. Hockey, the President of the Respondent dated 26 March 2002.  Having set out a number of complaints, which she contended amounted to repudiatory breaches of contract by the Respondent entitling her to treat herself as constructively dismissed she said:

“despite my 26 years commitment to the organisation I have no alternative but to resign, with immediate effect, due to fundamental breaches of my contract of employment”.

She posted that letter the same day, first class, and the envelope bears the postmark 26-03-02, 04:39 pm.

4.	The letter was received by Mr Hockey the following day.  That is the  Tribunal’s finding of fact, based on Mr Hockey’s evidence and an e-mail which he sent to Jane Bullen of the Respondent’s Solicitors then, Theodore Goddard, at 11:47 a.m. on 27 March, attaching the Appellant’s resignation letter.

5.	By a letter dated 28 March Mr Hockey replied to the Appellant acknowledging her letter but not stating the date on which it was received.  He reluctantly accepted her resignation.

6.	Mr Williams passed a copy of the Appellant’s resignation letter to Mr Paul Reynolds of the EEF Staff Pension Fund.  Mr Reynolds was required to sort out the Appellant’s P45 and pension entitlement.

Mr Williams written instruction to Mr Reynolds on 2 April began:

“Dear Paul
I shall be grateful if you would note that Mrs Wyatt has resigned with immediate effect from employment with the ECIA in a letter dated 26 March 2002.  (This was acknowledged by letter dated 28 March 2002).

Mrs Wyatt should therefore be removed from our payroll as of this date and from membership of the EEF/ECIA pension scheme.”

7.	On 3 April Mr Reynolds wrote to the Appellant.  His letter begins:
“Dear Diana,
I have  been advised by ECIA that you left them on 28 March 2002.  I set out below details of the  benefits available from the Fund at 28 March 2002”.  The Fund is the Staff Pension Fund.”  

He then sets out various options for pension payments starting on 29 March 2002, as well as a deferred pension option.

8.	On about 8 April the Appellant received her form P45 which showed her leaving date as 28 March 2002.  On 27 June 2002 she presented her originating application to the Tribunal.  She gave as her dates of employment 1.6.78 – 28.03.02.  

The Tribunal Decision
9.	The Respondent having taken the point that the relevant claims were out of time in their Notice of Appearance, the preliminary issue before the Employment Tribunal raised two potential questions applicable equally to the unfair dismissal and breach of contract claims.

(1)	What was the effective date of termination (EDT) under s97 of the ERA 1996
(2)	If the EDT fell outside the primary three month limitation period, had the Appellant satisfied the Tribunal that it was not reasonably practicable for the complaint to be presented before the end of that period of three months and if so, was it presented within a reasonable time thereafter ERA x111(2)(b) Employment Tribunal’s (Extension of Jurisdiction) Order 1994, Article 7(c).

First Issue
10.	Having found as a fact that the Appellant’s purported acceptance of the Respondent’s repudiatory breach of contract with immediate effect was communicated to the Respondent on receipt by Mr Hockey of her resignation letter on 27 March, the Tribunal found that that was the EDT directing themselves in accordance with the Judgment of Mr Justice Morison, President in Edwards v Surrey Police (1999) IRLR 456.  

11.	Although the actual EDT was an issue below Mr Chadwick on behalf of the Appellant does not challenge that finding on appeal.

Second Issue
12.	It follows from the Tribunal’s first finding that the originating application was presented one day out of time on 27 June 2002.  Had the Appellant shown that it was not reasonably practicable to present her complaint within time?  It was the Appellant’s case below, as appears from the dates of employment set out in her originating application, that she believed that the EDT was 28 March.  In her witness statement she stated the basis for that belief namely:

(1)	Mr Hockey’s letter of acknowledgement dated 28 March which made no mention that he had received her resignation letter the previous day 
(2)	Mr Reynolds’ letter of 3 April showing that her service extended until 28 March
(3)	Receipt of her form P45 dated 8 April giving her leaving date as 28 March.

13.	On that basis she and her adviser worked to the date 27 June as the last day for service of the Originating Application.  

14.	The Tribunal addressed the reasonable practicability issue at paragraphs 20-21 of their extended reasons in this way:

“20	In addressing the question of reasonable practicability the Tribunal has to look at the surrounding circumstances including in particular whether the Applicant has had reasonable legal advisers at the relevant times.  Ignorance or a mistaken belief in respect of essential manners sic (matters) cannot be regarded as grounds for holding that it was not reasonably practicable to present the claim in time.  In this case the Applicant accepts that she was aware of the time limit.  Her legal advisers knew or should have known that the ascertainment of the effective date of termination did not depend upon the date of the P45 or a letter from someone other than the employers writing in connection with pension benefits.

21	The Tribunal considered whether there has been any kind of misrepresentation about any relevant matter such as that considered in Palmer & Saunders v Southend on Sea Borough Council but again bearing in mind that the Applicant was in receipt of advice throughout and that the documents in question i.e. the letter of 3 April referred to a leaving date in the context of a pension benefit, the Tribunal does not accept that there was a misrepresentation entitling the Applicant to establish that it was not reasonably practicable to present her complaint within the period of three months.  Accordingly the Tribunal has no jurisdiction to entertain the Applicant’s claims.”

The Appeal
15.	Mr. Chadwick’s principle point in the appeal is this.  The Tribunal simply misdirected themselves in law when they said ignorance or a mistaken belief in respect of essential matters cannot be regarded as a ground for holding that it was not reasonably practicable to present the claim in time.  In fact, he submits the true position is quite the reverse.  He draws attention to the statement of the law contained in the judgment of Lord Justice Brandon in Wall’s Meat Co. Ltd. v Khan (1979) ICR 52, 60F -61A  

“The performance of an act in this case the presentation of a complaint is not reasonably practicable if there is some impediment which reasonably prevents or interferes with or inhibits such performance.  The impediment may be physical for instance the illness of the complainant or a postal strike or the impediment may be mental namely the state of mind of the complainant in the form of ignorance of or mistaken belief with regard to essential matters.  Such states of mind can however only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand or the mistaken belief on the other is itself reasonable either state of mind will further not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made or from the fault of his Solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”  

16.	We understand Lord Justice Brandon there to be saying:
(1)	Contrary to the self direction by this Tribunal, that a mistaken belief with regard to essential matters may be an impediment which reasonably prevents or interferes with or inhibits the performance of the relevant act, that is, presentation of a complaint to the Tribunal but
(2)	The mistaken belief must itself be reasonable.  Given the apparent misdirection by this Tribunal as to the first issue we turn to Miss Proops for argument in support of the Tribunal’s decision.  

17.	Whilst she accepts, as she must, the test propounded by Lord Justice Brandon in Wall’s Meat, a case cited to the Tribunal below, she submits that the Tribunal did not misdirect themselves at paragraph 20 of their reasons.  All that the Tribunal  was saying, correctly, was that mere ignorance or mistaken belief without more, could not found a reasonable practicability escape.

18.	We reject that submission, not simply because the Tribunal state in terms that a mistaken belief cannot be regarded as founding the escape provision but because -

(a)	they make no finding of fact as to whether or not the Applicant genuinely believed that her resignation letter arrived on 28 March, as she said in evidence, and 
(b)	they do not address the reasonableness of that  belief.  

19.	Instead they go on, at paragraph 20, to consider ignorance of the time limit, not relied upon by the Appellant herself or through her adviser and then to refer to the form P45 and the letter from Mr Reynolds dated 3 April.  But they consider those documents in the context of whether they inform the actual EDT which they do not (see London Borough of Newham v Ward [1985] IRLR 509) not whether they might have contributed to the Appellant reasonably but mistakenly believing that the EDT was 28 March.

20.	Finally, at paragraph 21, the Tribunal consider whether the date given in Mr Reynolds letter of 3 April (and, we would add, in the form P45) amounted to a misrepresentation.  We accept Miss Proops submission that the Tribunal was entitled to conclude that it was not.  The date there given was a true representation of the respondent’s belief as to the EDT, which appears to have coincided with that of the Appellant.  The explanation may well be that since the respondent did not accept that they were in repudiatory breach of contract , they  believe that the EDT was the date on which they accepted the Appellant’s repudiatory breach of contract in the form of her resignation without giving contractual notice.

Disposal
21.	It follows that we accept Mr Chadwick’s submission that there is on the face of the Tribunal’s reasons at paragraph 20 a patent misdirection in law.  The question then is what should we do with this case.

22.	Ms Proops submits that notwithstanding such misdirection if, as is now the case we find it to be so, the Tribunal’s decision is nevertheless plainly and unarguably correct.  Mr Chadwick, with equal conviction, argues that it is plainly and unarguably wrong.  We accept neither submission.  However both Advocates agree that if neither submission is accepted then in the interests of saving time and costs and given that all primary facts have been found by the Tribunal below we should exercise our powers under s35 of the Employment Tribunals Act 1996 and decide the reasonable practicability question ourselves.  We accede to that joint submission.

23.	We have ascertained that there was no challenge to the genuineness of the Appellant’s mistaken belief that the EDT was 28 March at the hearing below.  We proceed on that basis.  The real question is whether that belief was reasonably held.

24	As to that, Ms Proops strongest point is that the Appellant, advised throughout by Mr Chadwick, a professional adviser, ought to have enquired of the respondent as to when her letter of resignation was received.  She could not reasonably assume that it was received on 
28 March.  

25	We have carefully considered that argument, bearing in mind that the onus lies on the Appellant to establish the escape provision, but on balance we reject it.  Had Mr Hockey told the Appellant in his letter written on 28 March that he had received her resignation letter the previous day that would be the end of the reasonable practicability argument.  But he did not.  The letter is neutral on the point.  Without more we can see the force of Ms Proops contention.  However receipt of Mr Reynolds’ letter of 3 April followed by the form P45 entitled the Appellant reasonably to assume in our view that her letter had been received on 28 March without further enquiry of the respondent.  That assumption was itself mistaken but one reasonably held by the Appellant.  Unlike the Tribunal below, we do regard those documents as material, not to the actual EDT as a matter of law, but to the Appellant’s belief and that of her adviser that it was 28 March.  

26	Put another way, had the respondent then in receipt of legal advice clearly advised the Appellant that her letter had been received on 27 March then there would be no excuse or reason for her to lodge her originating application after 26 June.  But they did not.  In these circumstances, we conclude that it was not reasonably practicable to present her complaint in time and that it was presented within a reasonable time thereafter that is, one day later.  

27.	Accordingly, we shall allow the appeal, substitute a finding that the claims can proceed under s.111(2)(b) and Article 7A respectively to a hearing on the merits.