Appeal No. UKEAT/0639/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 December 2006

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

CODEMASTERS SOFTWARE COMPANY LTD	APPELLANT

MR T WONG	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	On written submissions	
For the Respondent	On written submissions	

Summary
Practice and procedure – Unfair dismissal
The Employment Tribunal was entitled to find that the Claimant reasonably believed a statutory procedure was under way and his Employment Tribunal claim was thus in time.

HIS HONOUR JUDGE McMULLEN QC

1.	The time limit for presenting a claim of unfair dismissal of three months is extended where a Claimant reasonably believes that he or she is following a procedure in respect of the dismissal.  This judgment deals with the application of the statutory criteria for this.  I will refer to the parties as the Claimant and the Respondent.  

Introduction
2.	It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal Chairman, Ms A Coaster, on 29 November 2005 with written reasons registered on 20 December 2005.  The parties were represented by solicitors.  The Claimant claimed unfair dismissal arising out of his selection for redundancy.  The Respondent denied the claim on the merits contending that he had been fairly treated and also took a jurisdiction point which was that the claim had been presented late.  The essential issue as defined by the Tribunal Chairman was whether the tribunal had jurisdiction to hear the Claimant’s claim of unfair dismissal.

3.	She said she did have jurisdiction and in the ordinary course the case would have gone on to be heard, but the Respondent appealed.  Since then this case has had a complicated procedural history.  The appeal was sifted by HHJ Burke QC who formed the opinion that it had no reasonable prospect of success for he said this:-

“Although in paragraph 18 the Employment Tribunal appear to have answered an objective question on a subjective basis, in paragraph 19 the Employment Tribunal make findings as to the employee’s reasonable grounds for believing that the disciplinary or dismissal procedure was being followed; their findings were a permissible option and provide an answer to the employers’ case which is not reasonably arguably wrong.”

4.	In accordance with Rule 3 the Respondent expressed its dissatisfaction and counsel attended an oral hearing before Bean J on 25 July 2006.  The question as defined by Bean J in his judgment was whether an employee who invoked an internal appeal 87 days after dismissal reasonably believed he was following a statutory or other dismissal procedure.  He set out the position as follows:- 

“1.	This is an application under rule 3(10) on behalf of the Appellant employers. The employee was dismissed on 29 April 2005. On 27 July 2005, a Statement of Appeal was served by his solicitors on the employers. Their solicitors responded on 1 August 2005 saying that the internal appeal procedure of the company required the appeal to be lodged within five working days of the termination of employment, and saying that the Respondent was not prepared to consider the appeal lodged nearly three months later.
2.	A claim was lodged with the Employment Tribunal (Employment Tribunal) on 19 August 2005. That is out of time, unless Regulation 15 of the inelegantly titled Employment Act 2002 (Dispute Resolution) Regulations 2004 applies. That extends the usual three months for presenting an unfair dismissal claim for a further three months if one of the statutory procedures applies, and at the time the initial three months expired, the employee had reasonable grounds for believing that a dismissal procedure, whether statutory or otherwise, was being followed.
3.	The Employment Tribunal made findings in paragraph 18 of the Judgment that the Claimant held an honest belief on 28 July 2005 (that is, the last day of the initial three month period) that an appeal procedure was being followed, and in paragraph 19 they find that when the Claimant posted his Statement of Appeal to the Respondent on 26 July - received by them on 27 July - he believed that he was following an appeal procedure.
4.	Mr Tatton-Brown, for the employers, argues that the Tribunal in effect answered the H wrong question, and also it is not clear whether the procedure which is referred to in paragraphs 18 and 19 of the Judgments is a statutory procedure, or the employer’s own procedure.
5.	It seems to me that this is a case where, following Burns v Consignia .plc and Barke v Setec Business Technology Centre Ltd, the Tribunal should be asked to answer two questions to elucidate their determination before the Appeal Tribunal can decide how the appeal should be dealt with. I shall therefore make the following order:
(1)	That this appeal be stayed pending referral back to the Employment Tribunal to answer (if practicable, within 28 days of the date of the sealed order) the following questions, namely: whether the Claimant’s belief on 28 July 2005 that a dismissal procedure was being followed was reasonable, and if so (or if not) its reasons for so concluding; and whether the procedure which the Claimant was being followed was a statutory procedure under Schedule to the 2002 Act, or the Respondent’s internal procedure.”

5.	He then decided that the matter would come back to be resifted in the light of any further reasons given by the Tribunal (although Bean J uses the plural it is clear that this was a Chairman sitting alone case).  The Chairman responded on 22 August 2006 in the following terms:-

“(1)	Whether the claimant‘s belief on 28 July 2005 that a dismissal procedure was being followed was reasonable, and if so (or if not) its reasons for so concluding;
1.1	Despite the respondent’s grounds of resistance in the ET3 stating that the claimant was informed of his right to appeal following notification of his dismissal with effect from 29 April 2005, I was satisfied, on the evidence before me, that the respondent did not inform the claimant at any time of his right to appeal under their internal procedures. The claimant’s oral testimony on this point at the PHR was not challenged by the respondent and there was no documentary evidence of notification to the claimant of internal appeal procedures produced at the PHR.
1.2	In the absence of:
(i)	any contrary procedural instruction or guidance from the respondent on its internal appeal procedure; and
(ii)	any contrary stipulation or guidance in the wording of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004;
it is not unreasonable for the claimant to -believe that submitting written grounds of appeal to the respondent would not initiate the commencement of an appeal process.
Further, a party using the postal system for service of a document would have a reasonable expectation that first class post would be delivered on the next working day, or at the latest, on the believe that the appeal would not be received by the respondent within the normal time limit for commencing tribunal proceedings.
The claimant believed that he had initiated the appeal procedure (and therefore that a dismissal procedure was being followed) and the tribunal finds that he had reasonable grounds for so doing.

(2) Whether the procedure which the claimant believed was being followed was a statutory procedure under Schedule 3 to the 2002 Act or the respondent’s internal procedure:
2.1 The claimant was not notified of the respondent’s internal appeal procedures (see 1.1 above). The claimant sought advice on the time limit for issue of tribunal proceedings. The claimant and his legal adviser confirmed at the PHR their interpretation of Regulation 15(1) and (2), namely that it required the claimant to lodge his appeal before the normal expiry of time for lodging tribunal proceedings and in so doing the normal time would be extended by three months. I therefore conclude that the claimant was following the statutory procedure.”

With that in mind the case came back for resift pursuant to Bean’s J order and this time the papers were put before HHJ Pugsley.  He ordered that the rule 3(10) hearing adjourned by Bean J should be restored.  He ordered that this should be expedited and that both parties should have leave to submit written submissions for the purposes of the rule 3(10) hearing.  The parties have done and when the papers came before me it seemed to me that an unusually protracted and expensive procedure could be avoided if I case managed this hearing with the consent of the parties to do what is practical.  With consent therefore, and without, it has to be said, a formal opinion being given under rule 3(10), this rule 3(10) hearing has been converted into a bilateral full hearing on the papers with written submissions by both legally represented parties.  That would save a considerable amount of expense and I am grateful to the parties for their realistic way of looking at this case management.  

The legislation
6.	The relevant legislation is paragraph 15 of the 2004 Employment Act 2002 Regulations which provides:-

“15:
(1)	Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and -
(a)	either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply:
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.
(2)	The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise….was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.”

The facts
7.	The facts have been set out by Bean J.  So far as I can tell from the papers the issue between the parties substantively concerns the decision to make the Claimant redundant from his position as an artist at the Respondent’s business which is publishing and editing the software for computer games.  There is thus a real issue to be heard between the parties but appeal relates simply to what the Claimant believed and whether he had reasonable grounds for believing it.  The Chairman found that the Claimant’s belief was this:-

“17.	It appears to the tribunal that there are three pertinent questions to establish whether the tribunal has jurisdiction:
(a)	did the claimant have a reasonable belief that a dismissal appeal procedure was being followed?
(b)	was sending the statement of appeal sufficient to support that belief i.e. does sending the statement of appeal to the respondent, for the purposes of Regulation 15(2), fall within the meaning of the words “that a dismissal ... procedure, whether statutory or otherwise ....was being followed”? In this case we are referring specifically to the appeal stage of a dismissal procedure, the dismissal already having taken place.
(c)	if the answer to (a) and (b) is yes, is there a public policy consideration not to encourage claimants to delay lodging an appeal which would override a positive answer to (a) and (b), and justify barring the claimant from pursuing his claim in the tribunal.
18.	In answer to (a), the tribunal found the claimant to be a sincere witness and accepts that the claimant held an honest belief on 28 July 2005 that an appeal procedure was being followed.
19.	In answer to (b), the regulation makes no stipulation as to what would be sufficient to fall within the scope of the words “that a dismissal procedure was being followed”. The legislation makes no provision requiring the employee’s compliance with the time limits of the employer’s appeal procedures. There is nothing in the wording of Regulation 15 which suggests that the parties had to agree the appeal procedure to be followed; or the respondent had to ‘accept’ an employee’s appeal application before it could be described as “a dismissal (appeal) procedure being followed”; or that both parties had to hold a reasonable belief that a dismissal appeal procedure was being followed. It refers only to the employee’s reasonable belief. In the circumstances of this case, the tribunal finds that when the claimant posted his statement of appeal to the respondent, (i) he believed that he was following an appeal procedure and, (ii) in so commencing the appeal procedure this was sufficient to fall within the meaning and/or scope of the words “that a dismissal procedure was being followed”.”

It was because there was no specific reference in the conclusion to the reasonableness, as opposed to the honesty, of the Claimant’s, belief that Bean J decided that there should be a referral back to the Tribunal for it to consider giving further reasons.  

The submissions
8.	The Respondent makes essentially two submissions.  First, as a matter of construction the Chairman’s reasons first time around and then on referral back, still do not descend into the statutory question and answer it by reference to the reasonableness of the Claimant’s belief.  Secondly, if the Chairman did make that correct approach she nevertheless made a perverse judgment when she decided in the light of the substantial delays and the reference to unreasonable time delays in the regulations, that the case fell within the statutory jurisdiction.  

9.	On behalf of the Claimant it is contended that the essence of the Tribunal’s judgment is plain.  The Chairman addressed herself to the statutory questions and looking back at the whole of the judgment together now with the extra reasons the statutory question has been answered in the Claimant’s favour.

Conclusions
10.	In my judgment the opinion of HHJ Burke QC was correct and it is made absolutely clear by the further reasons.  I accept that there was doubt as to what was the formal answer of the Chairman to the question she put to herself, but now that she has provided these further reasons I am satisfied that the statutory test has been met.  She did address the statutory question by first setting out the regulation itself and then considering in the submissions section of her judgment whether or not there was reasonable belief.  

11.	Finally in the passage where I have cited from paragraph 17(a) the question she first asked herself was did the Claimant have a reasonable belief.  There is no challenge to the finding that the Claimant was a sincere witness, a fact sensitive finding from the only oral evidence which came from the Claimant.  There is no challenge to the fact that he acted reasonably in having the appeal against his dismissal sent through the post and indeed it arrived just within the three months primary deadline of the unfair dismissal limitation regime. 

12.	When those reasons are put together with the further reasons, the Chairman has answered the statutory question.  I think however she has made a mistake in the passage I have cited from paragraph 1.2 of her further reasons because the second “not” is unnecessary.  I take the sense of that from the fact that there is a number of negatives in the sentence which begins at paragraph 1.2 and the finding in respect of that paragraph and of the succeeding paragraph is in favour of the Claimant and of his reasonableness.  With that slight correction the Chairman has held that the Claimant had reasonable grounds for believing that he initiated the appeal procedure and as I have indicated that is a matter which was open to her upon hearing the evidence only of the Claimant.  The Chairman has also decided that the Claimant was following the statutory procedure.  

13.	It must be born in mind that the central tenet of the Claimant’s belief is based upon what his solicitor told him which is that if he lodged an internal appeal within the primary time limit for unfair dismissal his claim would be heard. That evidence is not the subject of appeal.  The finding that the Claimant believed he had been following the statutory procedure because of the advice on the statute given to him by his solicitor seems to me to be unimpeachable. It was not perverse.  

14.	I also consider the general requirement under the regulations that there should be no unreasonable delay in taking the steps. It is contended by the Respondent that a delay of almost three months before putting in an internal appeal would not be reasonable.  Broadly speaking I agree: see the judgment I gave on behalf of the EAT in King and Khan v The Home Office. UKEAT 0026/06/LA 17 November 2006.  But that seems to me to be a different question and so long as the finding is upheld that the Claimant was proceeding pursuant to his solicitor’s advice and that the advice was that the statute would be complied with by his presentation of an appeal within that time, there is no abuse of the unreasonable delay provision.  

15.	I would uphold the judgment of the Chairman in her further reasons and hold that she was correct in finding that the Tribunal had jurisdiction. I will now take a simple step to try to speed up this case, which has now been inchoate for more than a year, by ordering that witness statements be exchanged within 14 days of this order and further directions be given by the Employment Tribunal.  The appeal is dismissed.