Appeal No. UKEAT/0851/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 March 2004
Judgment delivered on 7 April 2004

Before
HIS HONOUR JUDGE J MCMULLEN QC
MRS L TINSLEY
MRS R A VICKERS

MS A J CHOHAN	APPELLANT

DERBY LAW CENTRE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DAMIAN BROWN
(Of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
Price House
37 Stoney Street
The Lace Market
Nottingham 
NG1 1NF

For the Respondent	MR CHARLES CROW
(Of Counsel)
Instructed by:
Messrs Flint Bishop & Barnett
Solicitors
Price House
37 Stoney Street
The Lace Market
Nottingham
NG1 1NF	

SUMMARY

Employment Tribunal claim brought out of time because of Solicitor’s negligent advice.  Application of British Coal Corporation -v- Keeble [1999] IRLR 337. 

HIS HONOUR JUDGE J McMULLEN QC

1.	This case concerns the exercise of discretion by an Employment Tribunal in the context of incorrect legal advice to an Applicant causing her to be late in presenting a claim.  The judgment represents the views of all three members.  We will refer to the parties as Applicant and Respondent.

Introduction
2.	It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Birmingham, Chairman Mr D Kearsley registered with Extended Reasons on 6 December 2002.  The Applicant and Respondent were represented respectively by Mr Damian Brown and Mr Charles Crow of Counsel, both there and here.  The Applicant claimed that she had been victimised contrary to Section 4(1)(a) of the Sex Discrimination Act 1975.  The Respondent denied the claim.  It also took a jurisdiction point contending that the Applicant’s claim was presented more than three months after the relevant event and that it was not just and equitable for the Tribunal to extend time.  That was therefore the issue on which the Tribunal held a Preliminary Hearing.  It upheld the Respondent’s contention.  The Applicant appeals against that decision.  Directions sending this matter to an EAT Preliminary Hearing were given by me at an Appellant-only hearing under Rule 3(10) of the EAT Rules.  At that Preliminary Hearing Mr Justice Rimer and Members directed that there should be a Full Hearing.

The Legislation
3.	By Section 4(1) of the Sex Discrimination Act 1975 it is unlawful to victimise a person who has made an allegation, amongst other things, that another person has committed an act which will be a breach of the statute.  A complaint under this provision must be presented to an Employment Tribunal within three months of the act complained of.  However, discretion is available by Section 76(5) which provides as follows:

“A court of tribunal may nevertheless consider any such complaint, … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

4.	The tribunal considered those relevant provisions and one authority: Hawkins v Ball & Barclays Bank [1996] IRLR 258 (and another not relevant to the appeal).  

The Facts
5.	The Respondent is a Law Centre in Derby.  The Appellant was employed as an advice worker in employment matters at a salary of almost £20,000 a year from 11 March 1996 until the relationship ended by her dismissal. She was engaged as a trainee solicitor under a training contract pursuant to the Guide to the professional conduct of solicitors and the Training Regulations 1990 and the associated Guide (authorisation and trainee solicitors).  By an Originating Application of 18 December 2000 the Applicant claimed sex discrimination and later related unfair dismissal.  These claims were listed for hearing before a Birmingham Employment Tribunal on 3 April 2002.  The claims were compromised following the intervention of ACAS by way of a COT3 form signed on 18 April 2002 following negotiations which began in March 2002.

6.	On 23 April 2002 the Law Society wrote to the Applicant indicating it had received correspondence from the Respondent about the termination of the training contract and on 30 April 2002 a copy of a letter written by the Respondent, dated 22 March 2002, was sent to the Applicant.  She claimed that by writing the letter to the Law Society the Respondent committed an act of victimisation taking effect on 22 March 2002.  The Respondent contended that it was under a professional duty to report the dismissal of the Applicant to the Law Society and acknowledged that no other action would be taken by the Law Society until the Employment Tribunal proceedings had been concluded.  It took the time point.  In addition, it contended that the compromise agreement had settled all claims.

7.	The Tribunal found that that the agreement was not competent to settle a victimisation claim.  There was no appeal by the Respondent against this.  A preliminary issue before the Employment Tribunal was to decide whether or not the claim was submitted on time.  It was presented on 9 July 2002,18 days out of time.  It was accepted that the relevant act from which the time began to run was 22 March 2002.  It is accepted by the Applicant that it was an error by her solicitor not to have recognised that time ran from that date. The solicitor advised, and she accepted the advice, that time ran from the disclosure of the contents of the letter to her on 2 May 2002. 

The submissions
8.	The Applicant sought the exercise of the Tribunal’s discretion in her favour to allow the claim to proceed.  She contended that she and her solicitor were awaiting notification of the outcome of the complaint by the Office for the Supervision of Solicitors relating to the termination of the Applicant’s training contract.  She contended that the Tribunal had erred in failing to take into account the incorrect advice of the solicitor.  The Employment Tribunal did not mention the former contention.  It concentrated on the latter.  It held that the delay in presenting the Originating Application was caused by the incorrect advice of the solicitor.  The solicitor was held to be a senior employment lawyer.  It also paid attention to the fact that the Applicant was herself legally trained.  It refused to allow the application to proceed.  The Applicant’s case is that the Tribunal erred in failing to pay attention to her belief that she should wait until the Law Society notified her of the outcome over the Respondent’s letter, and in relying on the Applicant’s own knowledge of employment law.

9.	Further, it is contended that the fault of her solicitor should not be laid out her door so as to prevent her from pursuing her claim.  The delay at least on the finding by the Employment Tribunal was entirely occasioned by these two last factors. No prejudice would be caused to the Respondent by allowing the appeal, over and above, of course, the fact that it would be caused to engage in proceedings.  The Applicant was only 18 days out of time.  

10.	On behalf of the Respondent it is contented that the Tribunal correctly applied the relevant law and the decision of the Tribunal being one of discretion was not susceptible to attack on the grounds of perversity unless it was plainly wrong in principle.

The legal principles
11.	The legal principles to be applied in this case appear to emerge from the following authorities.

12.	A Tribunal demonstrably taking the wrong approach or not taking account of a fact which it should have done errs in law - see Hutchison v Westward Television [1997] IRLR 69 EAT

13.	The availability of legal advice is a relevant question - see British Coal Corporation v Keeble [1999] IRLR 337 EAT at para 8 per Smith J.  

14.	The use of a check list under the Limitation Act is often useful: British Coal Corporation v Keeble EAT/413/94 unreported 6 July 1995 EAT Holland J at paragraph 10, upon which Mrs Justice Smith based her judgment above.

15.	Although it is not a requirement that a tribunal go through the check list, failure to consider a significant factor will amount to an error of law: London Borough of Southwark v Afolabi [2003] IRLR 220 CA paragraph 33 per Peter Gibson LJ.

16.	The failure by a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of windfall: Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419 p 38-40.

Conclusions
17.	In our judgment the Tribunal erred in leaving out of account the Applicant’s contention demonstrated in her witness statement that she was relying upon the notification by the Law Society of its decision.  It was an issue to be decided in the case which the Tribunal has not visited.  Generally speaking, waiting for an internal procedure to be exhausted is not sufficient grounds for postponing the date for the filing of a claim: Palmer v Southend Borough Council [1984] ICR 372 CA.  However, in the regulated regime of solicitors’ contracts, the situation may well be  different.  

18.	Secondly, the Tribunal plainly has visited the fault of the Applicant’s solicitor upon her.  Although in the EAT a fault by a Legal Adviser in failing to lodge an appeal in time is not generally grounds for the exercise of discretion to extend time - see Arab Emirates v Abdelghafar [1995] ICR 65, the position seems to be different at first instance where different considerations obviously apply.  In Hawkins (above) Keene J held that a Tribunal did not err in paying attention to this factor and did not make a perverse decision.   Insofar as that EAT was suggesting that language in the Limitation Act was inappropriate, it has to be said that the EAT was not shown the judgment of Holland J in the EAT in British Coal Corporation v Keeble, and it of course preceded its appearance second time round before Mrs Justice Smith.  

19.	It appears to us that the Tribunal ought to consider the check list under the Limitation Act, suitably modified as Mrs Justice Smith did in Keeble for the purposes of an Employment Tribunal claim, but will not fall into error unless it omits a significant factor.  Where the issue turns upon the steps taken by the Applicant to obtain and act upon legal advice, Steeds v Peverel indicates that wrong advice, or the existence of an implied case against negligent solicitors, ought not defeat an applicant’s contention that the claim ought to be heard.

20.	Thirdly, inextricably linked to the taking of advice is the concept that the party is not relying on his or her own actual or imputed knowledge. A trainee solicitor experienced in employment matters is entitled to entrust litigation to another experienced solicitor and to rely on her advice. The concession here that the cause of action arose on 22 March 2002 was not in our view easy to make. The concept of a crystallised right as understood in Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490, [1992] ICR 312, EAT is not always easy to pin down and a trainee solicitor should not be condemned in an exercise of discretion for getting it wrong (with her solicitor).

21.	For those two reasons, therefore, in our respectful judgment the Employment Tribunal erred in its application of the law to the exercise of its discretion when it refused to allow the case to be heard. 

Disposal
22.	Having canvassed the views of Counsel as to the method of disposal, we have decided that the case should be remitted to an Employment Tribunal for a hearing on the merits of the victimisation claim.  Because of the difficulties in listing, there is no imperative that this be heard by the same Employment Tribunal.  If we had decided the case solely on the basis of the Applicant’s contention that she was waiting to hear from the Law Society as to the outcome, we would have remitted it to the Tribunal for a rehearing of the time point.  But our primary finding is based upon a failure to apply the factors in Keeble, and a failure to deal with erroneous legal advice pursuant to Steeds. We can thus see how the Employment Tribunal would have exercised its discretion if it had applied the law correctly. No prejudice was advanced by the Respondent. We are able ourselves to say that it was just and equitable to allow the application to be made 18 days out of time.

23.	We would like to thank both Counsel for the help that they have given in this case.  The appeal is allowed.