Appeal No. UKEAT/0540/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 May 2010

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

NORTHAMPTONSHIRE COUNTY COUNCIL	APPELLANT

MR D ENTWHISTLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR CHRISTOPHER JACOBS
(of Counsel)
Instructed by:
Northamptonshire County Council Legal Services
PO Box 104
County Hall
George Row
Northampton
NN1 1AW	
For the Respondent	MR RICHARD O’DAIR
(of Counsel)
Instructed by:
Messrs DFA Law LLP
2 Waterside Way
Northampton
NN4 7XD	

SUMMARY

JURISDICTIONAL POINTS – Extension of time: reasonably practicable

Employer wrongly informed Claimant that he had three months in which to present an unfair dismissal when he only had six weeks – Claimant consulted solicitors, who negligently failed to notice the error – Claim presented two weeks out of time – Tribunal holds not reasonably practicable to present claim in time.

Held: allowing appeal, that it was reasonably practicable for Claimant to present claim in time because if his solicitor had given him advice of the kind he should reasonably have been given the employer’s mistake would have had no effect – Dedman [1974] ICR 53, Walls [1979] ICR 52 and Williams-Ryan [2008] ICR 193 followed – Sen [1993] IRLR 333 distinguished 
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	This appeal raises a question about the application in novel circumstances of the provision allowing a Tribunal to consider a claim of unfair dismissal presented outside the primary time limit.  Section 111 of the Employment Rights Act 1996 reads, so far as material, as follows:

“(1)	 A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.
(2) Subject to subsection 3, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal 
(a) before the end of the period of three months beginning with the effective date of termination, or 
(b) 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 that period of three months.”

I need not be concerned for the present purposes with sub-sections (3) or (4).  A provision in essentially similar terms has appeared in the predecessor legislation since 1971.

2.	The facts giving rise to the issue can be briefly stated as follows.  

(1)	The Claimant was employed by the Respondent, to which I will refer as “the Council”. He was dismissed for gross misconduct on 13 November 2008.  Prima facie, therefore, any claim for unfair dismissal had to be presented on or before 12 February 2009.  However, the Claimant appealed under the Council’s internal procedures, and the appeal was not concluded until 20 March 2009 when he was notified orally that his dismissal stood.  In those circumstances regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applied so as to extend his time for presenting a claim of unfair dismissal for a further three months, namely until 12 May 2009.

(2)	The Council wrote to the Claimant on 26 March 2009 confirming the dismissal of the appeal.  The final paragraph of the letter reads as follows:

“This is the final stage of the internal procedures under the Council’s Disciplinary Policy and you have no further right to appeal to the County Council.  If you believe that you do have grounds to appeal against this decision you do have the right to apply to an Employment Tribunal within three months of receipt of this decision.”

(3)	The second sentence of that paragraph was simply wrong.  In the typical case where an employer’s procedures do not provide for dismissal to be suspended pending the outcome of an appeal, time runs from the original decision.  The Claimant had, as I have said, some six weeks, not three months, in which to present his claim.  

(4)	The Claimant had been instructing a firm of solicitors, DFA Law, in Northampton.  The solicitor handling his case, Mr Lee, failed to spot the error in the Council’s letter.  He and the Claimant proceeded on the basis that they had until 27 June 2009 to present a claim of unfair dismissal.  Such a claim was in fact presented on 27 May 2009.  It was accordingly out of time by just over a fortnight.

3.	The Council in its response took the point that the claim was out of time, and the matter came before the Regional Employment Judge, Judge McMillan, at Northampton on 29 September 2009.  His judgment and written Reasons were sent to the parties on 1 October 2009.  After a careful review of the authorities he concluded that in all the circumstances it had not been reasonably practicable for the Claimant to bring the claim within the primary (extended) period of six months and that the claim had been brought within a reasonable period thereafter.  I should note at this stage that in the course of his Reasons the Judge recorded Mr Lee’s frank acceptance

“…that with the benefit of hindsight he could have been accused of being negligent in not checking [the Council’s statement about the time limit].”

It is clear, although this is nowhere stated in terms, that the Judge regarded that as a concession that Mr Lee had indeed been negligent in overlooking the error in the Council’s statement and that he adopted and endorsed that concession.

4.	This appeal is against that decision.  The Council is represented by Mr Jacobs of counsel, who also appeared below.  The Claimant is represented by Mr O’Dair of counsel.  Mr O’Dair did not appear before the Judge, where the Claimant was represented by Mr Lee himself.  

5.	There has been a great deal of authority about the effect of the “not reasonably practicable” test and, in particular, about its application in circumstances where a Claimant has consulted skilled advisers who have failed to give him proper advice about the applicable time limits.  The cases to which I have been referred are Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, Walls Meat Company Ltd v Khan [1979] ICR 52, Riley v Tesco Stores Ltd [1980] ICR 323, Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, London International College v Sen [1993] IRLR 333, Marks & Spencer PLC v Williams-Ryan [2008] ICR 193 and Ashcroft v Haberdasher’s Aske’s Boys School [2008] ICR 613.  I will not attempt a full analysis of what those cases decide; the points relevant to the argument in the present case can be summarised as follows. 
(1)	Section 111 (2) (b) should be given “a liberal construction in favour of the employee”.  This was first established in Dedman.  There have been some changes to the legislation since but this principle has remained: see, most recently, paragraph 20 in the judgment of Lord Phillips MR in Williams‑Ryan, at page 1300.

(2)	In accordance with that approach it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time limit if he was, reasonably, in ignorance of that time limit.  This was first clearly established in the decision of the Court of Appeal in the Walls case, but see most recently paragraph 21 of Lord Phillips’ judgment in Williams‑Ryan and, in particular, the passage from the judgment of Brandon LJ in Walls there quoted, at pages 1300 to 1301.

(3)	In Dedman the Court of Appeal appeared to hold categorically that an applicant could not claim to be in reasonable ignorance of the time limit if he had consulted a skilled adviser, even if that adviser had failed to advise him correctly.  Lord Denning MR said this at page 61 E-G:

“But what is the position if he goes to skilled advisers and they make a mistake?  The English court has taken the view that the man must abide by their mistake.  There was a case where a man was dismissed and went to his trade association for advice.  They acted on his behalf.  They calculated the four weeks wrongly and posted the complaint two or three days late.  It was held that it was ‘practicable’ for it to have been posted in time.  He was not entitled to the benefit of the escape clause: see Hammond v Haigh Castle & Co Ltd [1973] ICR 148.  I think that was right.  If a man engages skilled advisers to act for him, and they mistake the time limit and present it too late, he is out.  His remedy is against them.  Summing up, I would suggest that in every case the Tribunal should inquire into the circumstances and ask themselves whether the man or his advisers were at fault in allowing the four weeks to pass by without presenting the complaint.  If he was not at fault, nor his advisers, so that he had just cause or excuse for not presenting his complaint with the four weeks then it was not practicable for him to present it within that time.  A court has then a discretion to allow it to be presented out of time if it thinks it right to do so, but if he was at fault, or his advisers were at fault in allowing the four weeks to slip by, he must take the consequences.  By exercising reasonable diligence the complaint could and should have been presented in time.”

Lord Denning made a similar point in his judgment in the Walls case, at page 56 D-E.  In his judgment in the same case Brandon LJ, after referring to the fact that a complainant could in principle seek to rely on ignorance or mistake about the time limit, said this, at pages 60-61:

“Either state of mind will further not be reasonable if it arises from the fault of the complainant in not making such inquiries 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 [my emphasis].”

(4)	In Riley, Stephenson LJ cautioned against treating Dedman as laying down a rule of law, observing that “every case must depend on its own facts”: see page 329 C-D.  In Sen Sir Thomas Bingham MR went further and questioned the rationale of the rule itself: see paragraph 16, at pages 335-6.  

(5)	However, in Williams‑Ryan Lord Phillips reviewed the relevant authorities in some detail with a view to identifying whether it was a correct proposition of law that, as he put it at paragraph 24 (page 1301):

“…if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the Employment Tribunal in due time.  The fault on the part of the adviser is attributed to the employee.”  

He concluded squarely at paragraph 31 (page 1303):

“What proposition of law is established by these authorities?  The passage I quoted from Lord Denning’s judgment in Dedman was part of the ratio.  There the employee had retained a solicitor to act for him and failed to meet the time limit because of the solicitor’s negligence.  In such circumstances it is clear that the adviser’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal.”

The passage from Dedman there referred to is part of the passage which I have set out at (3) above.  I think it is clear that Lord Phillips was intending to confirm that what he elsewhere called “the principle in Dedman” is a proposition of law and, to that extent, to decline to endorse Stephenson LJ’s observations in Riley, which he referred to as having been obiter, or Sir Thomas Bingham’s doubts in Sen.

(6)	Subject to the Dedman point, the trend of the authorities is to emphasise that the question of reasonable practicability is one of fact for the Tribunal and falls to be decided by close attention to the particular circumstances of the particular case: see, for example, the judgment of May LJ in Palmer at page 385 B-F.  I should refer also to the comment by Stephenson LJ in Riley, at page 334 D that:

“When judges elaborate or qualify the plain words of a statute by gloss upon gloss, the meaning of the words may be changed, the intention of parliament not carried out but defeated and injustice done instead of justice.”

Lord Phillips acknowledged this at paragraph 43 of his judgment in Williams‑Ryan (see page 1305).

6.	Before the Employment Judge Mr Jacobs submitted that this case fell squarely within the principle in Dedman.  The Judge recorded his submissions at paragraph 13 of the Reasons as follows:

“This is a skilled adviser case and the law is clear.  If the skilled adviser gets it wrong that is the end of the matter and Mr Entwhistle must lose as against the County Council before this Tribunal.  Such right of action and such prospects of success as he may have had against the Council translate into a negligence action against Mr Lee.  Williams‑Ryan makes it clear that that remains the law.”

7.	The Judge, however, believed that that was to read Lord Phillips’ endorsement of the principle in Dedman too literally.  He held, at paragraph 22 of the Reasons:

“Therefore, I do not think that it can be right that the ratio of Williams‑Ryan is that as soon as any degree of negligence on the part of a skilled adviser which causes a claim to be presented out of time is identified, irrespective of the circumstances in which the adviser came to be negligent, the Claimant is barred from pursuing their claim in the Tribunal.  Clearly the principle that the consequences of the negligence of a skilled adviser is visited upon their client is undeniable and it seems clear that, at least in the absence of wholly exceptional circumstances, any fault by an adviser will defeat an attempt to argue that it was not reasonably practicable to present the claim in time.  But in my judgment the existence of wholly exceptional circumstances must permit, though not of course necessarily compel, the Tribunal to hold otherwise.  It will permit the Tribunal to hold otherwise not because it is just and equitable to do so but because those exceptional circumstances meant that it was not reasonably practicable to have started the proceedings in time.”

8.	On the basis of that self‑direction he went on to conclude that this was one of those exceptional cases where it was indeed not reasonably practicable for the Claimant to present his claim in time, notwithstanding his having consulted skilled advisers.  At paragraph 29 he said this:

“If this was a case, as Mr Lee erroneously thought it was, where the question was whether it is just and equitable to extend time, I would have had little hesitation in saying that time should be extended; and if Mr Entwhistle had been acting on his own without the benefit of skilled legal advice I would almost certainly have held that the Respondents’ mistake would have made it not reasonably practicable for Mr Entwhistle to present his claim on time.”

He then continued:

“30. Should the outcome be different because his otherwise skilled advisor, Mr Lee, has also fallen into the trap, not deliberately laid but nonetheless created by the Respondents’ letter?  This is an extremely difficult case and I would only and with the greatest possible diffidence and respect, decline to follow the Dedman line of authorities if I thought it was permissible for me to do so by a correct interpretation of the statutory provisions and in the light of the facts that I have found.  It seems to me that notwithstanding Mr Lee’s skills and notwithstanding his acceptance (albeit with the benefit of hindsight) that he was negligent in failing to realise that the Council had got it badly wrong, that this is a case where, because of the combination of the circumstances that I have found as facts, it was genuinely not reasonably practicable, giving those words their ordinary everyday meaning, for these proceedings to have been presented within the time limit as extended by reg 15(2).  I am also satisfied that fifteen days after the expiration of that time limit was a further reasonable period of time within which to present them.
31. In the wholly exceptional circumstances of this case which I must emphasise turns on its peculiar facts, I therefore dismiss the Respondent’s application for the claim to be struck out.  The claim was presented in time and the Tribunal does have jurisdiction to entertain it.”

The “combination of circumstances” referred to in paragraph 30 is not spelt out by the Judge, but as I understand it his reference was essentially only to the fact that the Council had, in his words, created the very “trap” into which the Claimant and his solicitors had fallen.  

9.	In my judgment the Judge was right not to read Lord Phillips’ endorsement of the Dedman principle in Williams‑Ryan as meaning that in no case where a claimant has consulted a skilled adviser and received wrong advice about the time limit can he claim that it was not reasonably practicable for him to present his claim in time.  It is perfectly possible to conceive of circumstances where the adviser’s failure to give the correct advice is itself reasonable.  Waller LJ made this very point in Riley: see at page 336 B.  The paradigm case, though not the only example, of such circumstances would be where both the claimant and the adviser had been misled by the employer as to some material factual matter (for example something bearing on the date of dismissal, which is not always straightforward).  I note indeed that May LJ referred to “misrepresentation about any relevant matter” as a potentially relevant factor in paragraph 35 of his judgment in Palmer.  He was not referring specifically to a case where the adviser as well as the employee was misled but I can see no difference in principle.  

10.	So far so good, but the problem in the present case is that the Claimant’s solicitor’s error was negligent.  The Council may have written a misleading letter, but Mr Lee should not have been misled by it.  No doubt in human terms it is easy to see how the mistake arose, and as cases of negligence go it may not be at the most culpable end of the scale; but the Judge clearly believed that Mr Lee should have checked the Council’s statement for himself and not simply taken it on trust.  That finding seems to me to have been right; Mr Lee was a solicitor, and indeed apparently one with experience in the employment field.  It is in any event not challenged in the Respondent’s Answer.

11.	In my judgment it must follow that it was reasonably practicable for the Claimant to have brought his claim in time.  The burden of the Dedman principle is that in a case where a claimant has consulted skilled advisers the question of reasonable practicability is to be judged by what he could have done if he had been given “such [advice] as they should reasonably in all the circumstances have given him”: see the judgment of Brandon LJ in the Walls case quoted at para. 5 (3) above.  It necessarily follows from the finding of negligence that Mr Lee did not give the Claimant the advice which he should reasonably, in all the circumstances, have given him.  

12.	Mr O’Dair submits that the right analysis in the present case is that there are in fact two causes of the Claimant missing the deadline - first, the mistake in the Council’s letter and secondly Mr Lee’s failure to spot that mistake.  He seeks to draw an analogy with the case of Sen, where the applicant had first consulted a solicitor but had then sought and received erroneous advice as to the time limit from the employment tribunal itself: in that case the Tribunal found that the erroneous advice given by the tribunal staff rendered it not reasonably practicable for him to have brought his claim in time, and this Tribunal and the Court of Appeal upheld that reasoning.  However, the circumstances there were different from those of the present case.  Here, the misleading advice from the Council came first.  It could and should have been corrected by the solicitors.  No doubt in one sense the Council’s error constituted one of the causes of the Claimant missing the time limit, but the test under section 111 is not one of causation as such, but of whether it was reasonably practicable for the Claimant, at the material time, to present his claim within the time limit.

13.	For similar reasons, it seems to me immaterial that the whole situation would not have arisen but for the Council’s initial mistake.  If I were concerned with the power to extend time where it is just and equitable to do so found in the anti-discrimination legislation, that would be an important and probably a decisive factor.  But the test in section 111, as explained in the authorities reviewed in Williams-Ryan, is different and more restrictive.  Even construing it as liberally as possible in favour of the employee, I cannot see how it can be said that it was not reasonably practicable for the Claimant to claim in time when, if his solicitors had given him the advice which they should have done, the Council’s initial error would have had no effect.

14.	For those reasons I must hold that the Judge erred in law.  In my judgment his finding that Mr Lee had been negligent necessarily required him to find that it had been reasonably practicable for the Claimant to present his claim in time.  Thus, I must allow the appeal and dismiss the claim.