HIS HONOUR JUDGE HAND QC
Introduction
1.
This is an appeal from the Judgment of Employment Judge Cook,
sitting on a pre-hearing review at Manchester on 8 February 2011, the
written Judgment having been sent to the parties on
18 February 2011. By it the Employment Judge decided that although
the claim had not been presented within the time limited for doing so, it had
not been reasonably practicable to present it within time and, moreover, thereafter
the claims had been presented within a reasonable time.
2.
The claim is one of a number of claims that arose as a result of alleged
blacklisting of trade union members, by construction industry employers, and
the allegations have their origin in the results of an investigation carried
out by the Information Commissioner’s Office into a Mr Ian Kerr, who
was trading as the Consultation Association who held information on workers in
the construction industry. The information relating to the Respondent in this
case appears at page 73 of the bundle.
3.
The Respondent’s allegations in the ET1 that he submitted arise out of a
series of applications for work made by him over a long period of time. Since
his claim was not submitted until May 2009 and the allegations cover a
period from 2000 to 2006, issues as to the reasonable practicability and
reasonableness of submitting the ET1 claim within the period that it was
submitted arose, in other words the issues relate to s.139 of the Trade Union and Labour Relations Consolidation Act 1992 (as amended).
4.
What appears to have happened is that a database, which Mr Kerr
kept, was seized by the Information Commissioner. Mr Kerr was the third respondent
to these proceedings, although Mr Allen withdrew the claim against him
after Mr Kerr’s solicitor had finished his submissions at the hearing.
Having seized the database the Information Commissioner’s Officer issued a
press release. This was in March 2009. The Employment Judge quoted the
terms of the press release at paragraph 18 of the Judgment at page 64 of the
bundle. As a result of the press release the Respondent, Mr Allen,
telephoned the Information Commissioner’s Officer and gave some of his personal
details.
5.
By a letter dated 17 March 2009, the Information
Commissioner’s Office wrote to say that he must give more details before the
material could be disclosed to him. According to the Judgment he sent this
information “within a day or two”. He rang his trade union but, as the
Employment Judge concluded, he got no help from that quarter. He then
identified a local solicitor who he thought might be qualified to help. The
solicitor indicated that he wished to see documentary material from the
Information Commissioner’s Office before giving any opinion.
6.
The Respondent, Mr Allen, who did not attend the hearing before me,
had obtained work in Scotland and he went off to Scotland for four weeks’ work
on the Isle of Bute. After two weeks he came home and found a letter from the
Information Commissioner, dated 31 March. This appears to have been
delivered in his absence, according to paragraph 21 of the Judgment which
reads:
“21. During his first visit home he found a letter awaiting him
from the ICO that had been posted on 31 March 2009 which enclosed
details which he passed on to [the solicitor]. The letter, which is undated,
is at pages 90-94 of R1.”
7.
His evidence as to what happened then was not consistent, as the
Employment Judge noted at paragraph 32 of her Judgment. In paragraph 22, he is
noted as having said that he sent the information to the solicitor “towards the
end of April”, but then he had said it was “around” 26 April, which may or
may nor be more or less the same thing and, finally, he said it had been
received by his solicitor around 12 April (see paragraph 23 of the
Judgment).
8.
His solicitor replied in early May to say that he was unsure as to how
to proceed and, at the same time, appears to have stated that he was about to
go on holiday for six weeks. The Respondent, Mr Allen, gave evidence that
he believed that he had three months from the date when he received the
information to present a claim (see paragraph 24 of the Judgment). The
Employment Judge noted that this was erroneous, but added:
“24. However, it may be relevant to the Claimant’s beliefs.”
9.
The Employment Judge reached the conclusion that the Respondent thought
he had a claim even before seeing the information from the Information
Commissioner, but that it had not been reasonably practicable for him to
present a complaint until he actually did see the information. This is all
dealt with at paragraph 25 of the Judgment. The Employment Judge accepted that
the Respondent had had discussions with some agencies at the time that he
failed to him not getting the available jobs, but she expressed herself in
these negative terms at paragraph 25:
“25. I am not satisfied that there was sufficient information in
the claimant’s possession to bring a complaint under section 137.”
10.
She then went on to deal with what was, in effect, a discrete issue
about the first of the complaints that the Appellant was making, namely in
relation to a refusal to re-engage him at the Pfizer site in the
year 2000. It was the subject of questioning by Mr Dobie, the solicitor
who appeared on behalf of Balfour Beatty at the Employment Tribunal and who
also instructs Ms Stout of counsel who appears on their behalf on this
appeal, that the Claimant:
“26. […]understood that his failure to obtain work with Balfour
Kilpatrick was because of his trade union membership.”
11.
Paragraph 26 goes on:
“26. His response to this was that he thought that he did not
get a job he was concerned that he should have got because he took Balfour
Kilpatrick to an Employment Tribunal (Balfour Kilpatrick Limited v Acheson &
Ors [2003] IRLR 683 (page 95 at R1) [the
reported Judgment of a division of this Tribunal presided over by
Elias J.]”
12.
The Employment Judge then said this at paragraph 27:
“27. I accept Mr Allan’s evidence on this point and
conclude that he did not have enough information to know that he was being
denied jobs on grounds related to union membership.”
13.
So that was an issue as to reasonable practicability, as well as in
relation to reasonableness. The other applications for jobs in the period
between 2000 and 2006 all relate to the issue of reasonableness. The question
was whether presenting the claim by sending it on 26 May 2009 and it
arriving on 28 May 2009 could be considered presentation within such
a further period as was reasonable.
14.
The Employment Judge approached this from the starting point of the time
when the Appellant realised that he had been refused employment on grounds
relating to his union membership (see paragraph 30). This was only confirmed
to the Claimant on receipt of the letter from the ICO which was sent to him on
31 March 2010 (that is the date quoted in the Judgment but it is
plainly an error; it should read 2009), and was subsequently seen by him when
he returned from Bute a fortnight later in mid-April.
15.
It seems to me to follow that the Employment Judge thought the clock
started running in mid-April. What happened then, as found by the Employment
Judge at paragraph 31, was that the Respondent had handed the documents to his
solicitor, who was unsure how to proceed but indicated that blacklisting was
not illegal, although there might be a claim under the DPA, and for trade union
discrimination (again, see paragraph 31). The solicitor also said that he
would be away for six weeks. Mr Allen’s evidence appears to have been
that he received what is described as “this letter” in mid-May. What he did
next was to seek out another solicitor and he instructed a second firm. They
have presented the complaint on 28 May 2009.
16.
It seems to me that the Employment Judge was therefore looking at the
period of about seven weeks between mid-April and 28 May. She said this
at paragraph 32:
“32. Mr Allan was not entirely consistent in his evidence
on a time line when he was cross-examined. I do not pay any particular
attention to this, and note that in any event there was an underlying
consistency in what he said. This was that initially he made early contact
with the ICO and sent them the evidence of identity they required and was
subsequently working away in Scotland for four weeks when this was received.
He then took that evidence to solicitors he had contacted previously and left
it with them until he was contacted by [and
the solicitor’s name]. In answer to questions from Mr Dobie he
said that on or around 10 or 12 May he passed the file onward to
Quinn Barrow who wrote to him on 22 May enclosing a draft ET1 and
this was subsequently submitted.”
17.
The approach taken by Mr Dobie, who was representing the Appellant,
was initially recorded as being:
“33. […] not concerned by any initial “four week delay” and
accepted that it was appropriate for the claimant to prioritise his job in Bute.”
18.
The Employment Judge then says that Mr Dobie:
“33. […] subsequently appeared to change his position as his
submissions developed.”
19.
She reached this conclusion at paragraph 34:
“34. For the avoidance of doubt, I accept that it was
appropriate for the claimant to take no action while he was away working in
Bute for the first two weeks of [and it reads]
March [but it plainly should read “April”],
and subsequently he passed the paperwork to solicitors that he had contacted
via the internet before receipt of the evidence from the ICO.”
20.
The Employment Judge then notes that it had not been challenged that he
had sought advice first of all from his trade union and subsequently from his
first solicitors, but the Employment Judge was aware that the criticism being
made by the Respondents was that:
“35. […] there was no explanation of the time taken by [the
firm] in failing to progress his claim.”
21.
The Employment Judge did not accept that. She records this:
“35. Mr Allan said in evidence-in-chief that Mr Jewell was
“looking at it” and that he subsequently told the claimant that he was not
certain what to do with the information as it was not (then) “illegal” to
blacklist anyone. He was not questioned over whether he was given any advice
on Tribunal time limits by the respondent’s representatives and said that he
was relying on his own knowledge gained in his earlier Tribunal complaint (Acheson
& Ors) that he had three months less one day to present a complaint.
He thought that he had until 30 June to do so.”
22.
She then, at paragraph 36, says that she finds that explanation:
“36. […] convincing particularly in view of the state of the ET1
presented on his behalf by Quinn Barrow Solicitors. It is apparent that they
too were unsure of the claims that could be presented in the Employment
Tribunal and against whom they could be presented. This is evident both from
the fact that they believed that there was a freestanding right to a
Human Rights Act and a Data Protection Act claim, and that
subsequently, two of the initial respondents have been dismissed on withdrawal,
and the third Balfour Beatty Engineering Services Limited has been substituted
for an earlier, apparently non-legal personality.”
23.
This seems to represent a recognition by the Employment Judge that this
might not be a straightforward matter. She summarised her view at paragraph 37
(at page 67 of the bundle) in these terms:
“37. In the circumstances, and having considered the authorities
to which I was referred by Mr Dobie in particular, I am satisfied that the
claimant did act within a further reasonable period in presenting the claim.
He took legal advice throughout the relevant period and acted upon it. When it
appeared that there was going to be undue delay from the first firm of
solicitors, he changed solicitors and proceedings (which were subsequently
varied) were presented within a relatively short period thereafter.”
24.
After sifting of the case by Langstaff J, the grounds of appeal in
this case that were allowed to proceed to this hearing were grounds 1, 2, 3 and
6. The learned judge gave permission to the Appellant to renew grounds 4 and 5
at this hearing. Ms Stout of counsel has, in fact, sought permission to
renew ground 4 only.
25.
Ground 1 is that the Employment Judge failed to resolve material
disputes of fact. This has resulted in the Employment Tribunal having had no
explanation of a period of one month between the date when the material from
the Information Commissioner’s Office was received and the time when the
Respondent, Mr Allen, dispensed with the services of the first solicitor
and engaged the services of the second solicitor.
26.
Ms Stout’s submission on Ground 1 is that when one looks at
paragraph 22, there are two dates given and, at paragraph 23, a further date is
given. What is essential, submits Ms Stout, is for a decision to be made
as to whether it is 12 April or 26 April, so that one knows when the
period is that should be being considered. Moreover, there is no finding as to
the date when the material was handed to the first solicitor. It is dealt with
in vague terms in paragraph 23 and, although paragraphs 30 and 31 may be
thought to bear on it, there is still no real date as to when this period of
the first solicitor looking at the matter might have started. There is a date
as to when the material was passed on to the second solicitors. That is said
to be in paragaph 32, around 10 or 12 May.
27.
In support of her submissions in relation to the first ground of appeal,
I was referred by Ms Stout to the Judgment of this Tribunal, Silber J
sitting alone in the case of Northumberland County Council v Thompson UKEAT/0209/07 MAA. This was a
case where there was a period of illness for three months but a delay altogether
of twelve months and Silber J in examining these issues said this, at
paragraph 16 of the Judgment.
“It is settled law that the Employment Tribunal must make a
fact-sensitive decision relating to the particular employee and that there is
no rule that a particular period is invariably or usually reasonable and
another period is invariably or usually unreasonable … [he then quotes a passage from the case of Marley v Anderson [1994] IRLR 152] … Thus the task of the
Employment Tribunal is to carry out a thorough examination of the facts
focusing on the evidence before them in order to determine whether an employee
for whom it was not reasonably practicable to issue his claim in the prescribed
three month period had thereafter issued his claim ‘within such period as the
Tribunal considers reasonable’.”
28.
She also drew my attention to another unreported Judgment of this
Tribunal, that of Lady Smith, the Scottish President, sitting alone in January
2007 in Royal Bank of Scotland v Theobald UKEAT/0444/06/RN. There
Lady Smith took the view that there were no relevant findings made about
aspects of the case. Firstly at paragraph 6 she noted that there were no
findings as to why the Citizens’ Advice Bureau had given advice that the
internal appeal procedure should be completed. At paragraph 7 she noted there
were no findings as to why the Claimant had not used a form downloaded from the
internet and submitted his claim at the time that he had looked at the form on
the internet. These were important considerations in that particular case and,
at paragraph 42 of the Judgment, Lady Smith says this:
“42. It seems to me that it is incumbent on him [that is the
employee] to give a full and frank explanation of how and why the delay
occurred, particularly the delay once what was erroneously thought to have been
an obstacle, in this case, the appeal process, had been removed.”
29.
And at paragraph 43 she goes on:
“43. The Tribunal in this case appear to have been faced with an
absence of explanation as to why it took until 23 February to get the
claim presented. That, in my view, made it impossible for it to conclude that
it was presented within a reasonable time thereafter.
30.
She also made some comment about what she described as the “fairly tight
statutory time limit” and she said of the Claimant, again in paragraph 43,
that:
“43. He was asking that an extension be allowed which was, being
almost two weeks, really quite significant when viewed against the fact that
the statutory time limit is only three months. The least that can be expected
in such circumstances is that a candid account of events be given but that did
not, on the Tribunal’s findings, happen here.”
31.
I will pause to observe that it seems to me that the length of time of
any further period falls to be judged by reasonableness, not by the
relationship that it bears to what might be described as the primary limitation
period of three months. She came to the conclusion that the appeal should be
allowed and she decided the matter herself, saying this (at paragraph 45):
“45. As regards disposal, the Tribunal having made, it seems,
all the factual findings that there are to make on the matter, I consider that
I am in as good a position as [the] Tribunal to determine the issues that
arise.”
32.
Ms Stout emphasised that passage to me because it was her
submission that if I accepted that there were errors in the Judgment of the
Employment Judge, I should decide this matter myself on the same approach
adopted by Lady Smith. That was because she submitted that if one was in
fact looking at a period between 12 April and 10 or 12 May, there was
simply no evidence that the solicitors had done anything other than, as she put
it “sat on the file”, and the only conclusion that I could come to, therefore,
was that there was no explanation for the delay.
33.
The second ground, different from, but related to, the first ground, was
that it was an error of law to fail to attribute to the Respondent,
Mr Allen, what was plainly a fault on the part of his first solicitors.
This argument involves what Ms Stout describes as being a proposition of
law which, in some of the authorities, is called, in a shorthand, the “Dedman
Principal”. Her submission is that, in relation to reason practicability, the Dedman
Principal indicates the employee is fixed with the conduct of his advisers and
there is no reason in logic why, if that is what I called in the course of
exchanges between myself and Ms Stout “an overarching legal principle”,
that it should not apply to the issue of reasonableness.
34.
The Judgment of the current President, Underhill P, in Northumberland County Council v Entwhistle
UKEAT/054/09/ZT, contains a helpful summary of the law relating to consultation
with skilled advisers. It is contained in paragraph 5 which is, itself,
divided into six propositions. I shall come back to them in due course, but at
this stage simply refer to the summary which appears in paragraph 11 of the
Judgment of Underhill P:
“11. The burden of the Dedman Principal 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’
[and he refers to Brandon LJ’s Judgment in the case of Walls Meat Company Ltd v Khan
[1979] ICR 52].”
35.
Ms Stout submitted that three cases supported the proposition that
the Dedman Principal should apply with equal force to reasonableness of the
further period as it applies to reasonable practicability. The first was the
Judgment of Silber J in Northumberland County Council v Thompson (see above). There, at paragraphs 12
to 14, the proposition is made plain. At paragraph 12, Silber J accepts that
there is a difference between what is reasonably practicable and the concept of
within such period as the Tribunal considers reasonable, and he refers to the
well-known passage in the Judgment of May LJ Palmer & Saunders v Southend on Sea
Borough Council [1984] ICR 372. The passage appears at 374 to 375
and comprises a single sentence:
“12. We think that one can say that to construe the words
“reasonably practicable” as the equivalent of “reasonable” is to take a view
too favourable to the employee.”
36.
Having recognised that there is a distinction, at paragraph 13 Silber J
goes on to say this:
“13. Nevertheless, although these two tests are different, they
both embrace, although in different ways, the concept of reasonableness and
both tests appear in the same sentence of the same subsection although the ‘reasonably
practicable’ test has the additional requirement of practicability. In my
opinion, matters of crucial importance in determining the reasonableness aspect
(rather than the ‘practicable’ aspect) of the test of ‘reasonably practicable’
are likely to be of at least substantial importance in ascertaining if a
Claimant has after the end of the three month period launched proceedings ‘within
such period as the Tribunal considers reasonable’. Indeed I am not aware of
any reason why this should not be so.”
37.
And he goes on to say, in paragraph 14:
“14. Thus, an Employment Tribunal considering and
applying these eight words should follow the approach on ‘reasonable
practicability’ on dealing with the reasonableness aspect (rather than the ‘practicable’
aspect) of that definition. This exercise entails an investigation of: what
the employee knew and what knowledge the employee should have had if he or she
had acted reasonably in all the circumstances while ignoring the practicability
aspect of that definition. In Marks & Spencer Plc v Williams-Ryan
[2005] IRLR 562, which was referred to by the Employment Tribunal in the
present case), Lord PhillipsMR in a Judgment with which Latham and
Keene LJJ agreed, explained at paragraph 21 (with my underlining added) that:
‘…it has repeatedly been held that, when deciding whether
it was reasonably practicable for an employee to make a complaint to an
Employment Tribunal, regard should be had to what, if anything, the employee
knew about the right to complain to the Employment Tribunal and of the time
limit for making such a complaint. Ignorance of either does not necessarily
render it not reasonably practicable to bring a complaint in time. It is
necessary to consider not merely what the employee knew, but what knowledge the
employee should have had had he or she acted reasonably in all the
circumstances.’”
38.
The second authority upon which Ms Stout relies is again an
authority in this Tribunal comprising a Judgment of His Honour Judge McMullen QC
sitting alone, in the case of Lezo v OCS Group (UK) Ltd
UKEAT/0104/10/SM. HHJ McMullen deals with this at paragraphs 13 to 16 of
his Judgment. At paragraph 13 he deals with reasonable practicability. He
refers to Dedman and he identifies the questions as being whether the Claimant
or his advisors were at fault in allowing the time period to pass without
presenting the claim. That means linking together the adviser and the
Claimant. He then says this:
“13. Generally speaking, but not in every case (see Marks & Spencer Plc v Williams-Ryan)
the acts and knowledge of the adviser will affect the decision in relation to
the Claimant’s out of time claim.”
39.
Then he goes on at paragraph 14:
“14. No authority was put before the judge as to the meaning of
the second part: how is the Tribunal to determine what is reasonable?”
40.
He notes that in Northumberland County Council v Thompson,
Silber J approached both parts of the subsection on the basis that both use
the term “reasonableness” and the approach to the second part would be the same
as the first, save that the ingredient of practicability is absent, and HHJ
McMullen quotes paragraphs 14 (see above), 15 and part of paragraph 16 from
that Judgment. He then continues at paragraph 15 of his own Judgment:
“15. In the passage I have cited there is no reference to
advisers and in the Northumberland case there was an adviser.
Mr Glassman submits that at all times for the purposes of the second
limitation period, it is the conduct and knowledge of the Claimant which
controls the exercise of the discretion. Mr Flood contends that in the
light of the undisturbed findings about reasonably practicable, not just the
Claimant, but also his advisers are incorporated for purposes of primary and
secondary limitation periods. I agree with that submission.”
41.
He goes on at paragraph 16:
“16. Mr Flood submits that Silber J’s case is not
specifically focused and helpful on the point, but in my Judgment Silber J
was not setting aside the stream of authorities stemming from Dedman
which deal with the relationship between the fault of an adviser and the
Claimant’s own position. Although Silber J focuses entirely upon what the
Claimant’s knowledge was I hold that the approach to advisers in the first part
of s.111(2) applies in the second. So, I reject the submission that one only
has to look at the Claimant. The Claimant here is blameless but his advisers
plainly did not act in the way they should.”
42.
So, submits Ms Stout, that too is support for the proposition that
the Dedman Principal applies equally to the question of the reasonableness of
delay in respect of the further period as it does in respect of reasonable
practicability.
43.
The third case, Ms Stout submits, is one that supports the applicability
of the Dedman Principal to reasonableness, although it might at first blush be
understood as disagreeing with it. This is another judgment of
Underhill P sitting alone, this time in the case of Cullinane v Balfour Beatty Engineering Services UKEAT/0537/10/DA. In her skeleton argument,
Ms Stout referred to this as “a slightly different approach”. The case
bears more than a passing resemblance to the instant case. It too concerns the
seizure of Mr Kerr’s material by the Information Commissioner’s Office.
44.
There, the information was sent to the Appellant on
25 March 2009. He got in touch with his trade union but could not
get an appointment with the relevant full-time official until
29 April 2009. A claim was presented on his behalf by his trade
union on 30 April 2009, but not against Balfour Beatty, against
another employee. So far as the Balfour Beatty claim was concerned, they had
refused him employment in 2006 and the Claimant went to see another officer of
the union on 1 May 2009, having been referred by the officer that he had
seen on 29 April 2009.
45.
That section of the union, the Amicus section, instructed Thomson’s, the
well-known trade union solicitors, and on 14 May, Thomson’s, acting on
behalf of the Appellant, presented a claim against Balfour Beatty and a
recruitment agency. Both Respondents took the point that the claim had been
presented out of time and the Employment Tribunal, sitting in Manchester,
accepted that submission and dismissed the claim.
46.
As in the instant case (except in the Pfizer case), there was no issue
as to reasonable practicability and, as in the instant case, the further period
started when the information from the Information Commissioner’s Office became
available, which, on the facts of the Cullinane
case, was on 25 March 2009. So the further period in the Cullinane case was something like six
and a half weeks. The Employment Judge took the view that although any delay
before the Appellant had consulted the Trade Union was reasonable, after that
the Trade Union had behaved in such a dilatory fashion as to be characterised
as acting unreasonably and, therefore, the Employment Judge must characterise
the delay as unreasonable delay on the part of the Appellant.
47.
The President, on appeal, concluded that the Employment Judge had erred
in interpreting the material before him, and that he had been wrong to think
that it was unreasonable for the union to forward the Balfour Beatty claim to
head office and then to solicitors. The President took the view that once he
had reached a conclusion that one part of the unreasonable delay, as found by
the Employment Judge, was unsound then the case should be remitted to the
Employment Tribunal.
48.
Therefore what follows in the Judgment, on the issue as to whether the judge
was right or wrong to carry the Dedman Principal, which is that, in reasonable
practicability context, an employee is “affixed” with the conduct of his
adviser, across to the reasonableness of the further period of delay, might
strictly speaking be regarded as obiter dictum. The learned judge
nevertheless decided to consider the matter. He did so, as is obvious from
paragraph 15 of the Judgment, in order to assist the Employment Tribunal on
remission. He refers, at paragraph 15, to the most recent case, Northamptonshire County Council v Entwhistle
UKEAT/0540/09/ZT, and he says this:
“15. She [that is Ms Hart, who appeared on behalf of the
Appellant] pointed out that that principle is a consequence of the ultimate
test being one of practicability (not even, be it noted when the test was first
formulated, reasonable practicability), and that the consideration of
what further period was ‘reasonable’ did not require so strict an approach.
She made it clear that she was not saying the fact that a Claimant had been let
down by his advisers was decisive of the question of reasonableness at the
second stage, but she submitted it must be a relevant consideration.”
49.
Underhill P went on, in paragraph 16, to say this:
“16. I accept the validity of the formal distinction advanced by
Ms Hart, but I do not believe that it makes any real difference in
practice as regards the question of the relevance of the culpability of the
Claimant’s legal advisers. The question at ‘stage 2’ is what period - that is,
between the expiry of the primary time limit and the eventual presentation of the
claim - is reasonable. That is not the same as asking whether the Claimant
acted reasonably; still less is it equivalent to the question whether it would
be just and equitable to extend time. It requires an objective consideration
of the factors causing the delay and what period should reasonably be allowed
in those circumstances for proceedings to be instituted - having regard,
certainly, to the strong public interest in the claims in this field being
brought promptly, and against a background where the primary time limit is
three months. If a period is, on that basis, objectively unreasonable, I do
not see how the fact that the delay was caused by the Claimant’s advisers
rather than by himself can make any difference to that conclusion.”
50.
And he continues at paragraph 17:
“17. This approach seems to me right in principle, but it also
has the merit that it does not open up an uncomfortable gap between the
approach to be taken at the two stages that have to be considered under limb (b).
That question is not decisive of the present appeal. I deal with it, as I say,
because it was argued before me and will arise when the issue is remitted.”
So if confirmation is needed that this is, strictly speaking obiter
dictum it is to be found there in paragraph 17.
51.
Ground 3 combines misdirection and perversity. In that sense it is
really an adjunct to ground 1. The misdirection must be the misdirection in
ground 1. The complaint is that the Employment Judge misdirected herself in
concluding that the first solicitor’s delay meant that the period of further
delay had been reasonable. This is, in effect, what she is saying at paragraph
37 of the Judgment.
52.
There is a failure to consider whether the first solicitors were
negligent when they say that they were “looking at it” and “not certain what to
do with the information, as it was not illegal to blacklist anyone”. If that
is not a misdirection, then it is perversity because the evidence is all there
to reach a conclusion. The solicitors were negligent at that point. That does
not seem to have been even grappled with at paragraph 37 of the Judgment. It
also seems to me that ground 3 may not simply be relate to ground 1 but it also
relates to and overlaps with ground 2.
53.
Ground 4 raises a point in relation to the second solicitors. Although
it is implicit in the perversity argument, at least in relation to the first
solicitors, that there must be a contrast with the speed with which the second
solicitors dealt with the matter and the first solicitors delayed,
nevertheless, the second solicitors took ten days in dealing with this matter
and no explanation was sought or dilated upon by the Employment Tribunal in
relation to what they were doing. It was not enough for the Tribunal Judge to
have expressed herself in the terms which she did at paragraph 36. That is not
an explanation of the ten days further delay.
54.
As I already pointed out earlier in this Judgment, this is a matter that
is not before me unless I give permission for the ground to be renewed. I do grant
permission. It seems to me that the ground is intimately connected with the
other grounds and if there is anything in ground 1 or, for that matter, ground
2, then ground 4 also ought to be examined on this appeal.
55.
Ground 6 is a discrete ground relating to reasonable practicability in
respect of the Pfizer site in 2000. The point made in respect of it is a
simple one. It is that the Employment Tribunal has accepted an explanation on
behalf of the Respondent at paragraph 26 of the Judgment that is simply
untenable. The Employment Judge should have recognised that it was untenable.
Clear submissions had been made to her and the origin of its untenability is to
be found in the reported case of Acheson which the Tribunal
itself quotes at paragraph 26 of the Judgment.
56.
Mr Allen’s explanation as to why, at the time in 2000, his failure
to be re-engaged was not thought by him to be related to his trade union
membership, was he believed he had not got the job because he had taken Balfour
Kilpatrick to an Employment Tribunal. But if one looks at the report of the
Judgment of the division of this Tribunal, presided over by Elias J, in
the case of Balfour Kilpatrick Limited v Acheson & Ors [2003] IRLR 683, and if one looks at paragraph 18 of
the Judgment one can see quite clearly that employees were dismissed and sent
two documents at the same time, one was a letter of dismissal and one was a
form of application for re-employment.
57.
In fact, Mr Allen had been engaging
in an unofficial strike. His dismissal could not have been within the
jurisdiction of the Employment Tribunal unless others had been re-engaged and
it follows from that simple chronology that any consideration as to why he was
not re-engaged must relate to the period before he issued proceedings in the
Employment Tribunal. Accordingly the explanation at paragraph 26 of the
Judgment in the instant case could not be correct. The Employment Judge should
have recognised that.
58.
She went on to say at paragraph 27:
“27. I accept Mr Allan’s evidence on this point and
conclude that he did not have enough information to know that he was being
denied jobs on grounds related to union membership.”
59.
That, submits Ms Stout, is necessarily linked to paragraph 26, and
cannot be taken to be a freestanding finding that the Respondent’s state of
mind at the time was one of ignorance that he was being denied jobs on the
ground of trade union membership. Indeed, in her submissions Ms Stout
referred to page 73 and to the material disclosed from the database by the Information
Commissioner. She submitted that he was a trade union activist, a ringleader
and somebody who must have realised that he was not re-engaged on account of
his membership or activities.
Discussion and conclusion
60.
This is a case that concerns a well-established statutory formula. This
iteration of it appears in s.139 of the Trade Union and Labour Relations (Consolidation) Act 1992.
It reads, with a heading “Time Limit for Proceedings”:
“(1) An Employment Tribunal shall not consider a complaint under
s.137 unless it is presented to the Tribunal:
(a) before the end of the period of
three months beginning with the date of the conduct to which the complaint
relates; or
(b) where the Tribunal is satisfied
that it was not reasonably practicable for the complaint to be presented before
the end of that period, within such further period as the Tribunal considers
reasonable.”
61.
It is of course the same statutory rubric as is to be found in s.111(2)
in relation to unfair dismissal. There is, I accept, no basis for interpreting
the language of s.139 in any different way to the way that it has been
interpreted in its various forms since the Industrial Relations Act 1972.
62.
Of course, I accept that there have been over the years some differences
in the statutory language, but the iteration of it in s.111(2) and, for that
matter, in s.139(1), must have been in place for nearly 20 years that would
take us back to the Trade Union and Labour Relations (Consolidation) Act 1992 and
I would, without having researched the matter, venture to say for some period
before then, in terms of the unfair dismissal time limit provision.
63.
I also accept, as Lady Smith said in the Royal Bank of Scotland v Theobald (UKEAT/0444/06) Judgment to which I have already
referred, that there is a relatively short time limit and that one can infer
from that a need for any relaxation offered by the secondary provision that
allows some claims to be adjudicated upon by Employment Tribunals, even if they
are not presented within what might be described as the primary limitation
period, to be looked at in a rigorous way. Indeed, the current President said
much the same thing in the Cullinane case.
64.
I will deal first of all with the second
submission made by Ms Stout. I accept that the Dedman Principal is a
proposition of law. It seems to me that it rests on the identification of
their having been a failure on the part of skilled advisers to achieve a
reasonable standard of care, or in other words, it rests on establishing
negligence on the part of the skilled legal adviser.
65.
In his Judgment in the Lezo
case, HHJ McMullen took the view that the Court of Appeal’s judgment in Marks & Spencer Plc v Williams-Ryan identified that it would not be in every case that
the act and knowledge of the adviser would affect a decision as to reasonable
practicability. I agree with that proposition. The President,
Underhill J, in the Northamptonshire County Council
case, at paragraph 5 identified six principles. The first is really an
approach, not a principle. It is that what is the equivalent of s.139(1)(b),
s.111(2)(b) of the Employment Rights Act, should be given “a
liberal construction in favour of the employee”.
66.
The second principle is that ignorance of the time limit, if reasonable,
may and likely will affect the issue of whether it was reasonably practicable
to bring the complaint within the time limit. The third is the Dedman
Principal; this is, perhaps, best expressed by extracting a single sentence
from part of the Judgment of Lord Denning MR (see Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, page 61E to G:
“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.”
67.
One can also support that as does the President by referring to the
Judgment of Brandon LJ in Walls Meat Company Ltd v Khan
[1979] ICR 52, where he says in the well known passage at pages 60 to 61:
“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.”
68.
Whilst acknowledging in the fourth of his sub-paragraphs that there had
not always been universal agreement with the Dedman Principal, Underhill P
in his fifth sub-paragraph accepted that Lord Phillips in the Williams-Ryan case had said the fault on the part of the adviser is attributed to the
employee and Underhill P said of that passage:
“I think it is clear that Lord Phillips was intending to
confirm that what he elsewhere called the Principal in Dedman, is a proposition
of law and, to that extent, to decline to endorse Stephenson LJ’s
observations in Riley v Tesco Stores Ltd [1980] IRLR
103, which he referred to as having been obiter or
Sir Thomas Bingham’s doubts in Sairn.”
69.
The final matter that Underhill P placed emphasis on was that the
trend of the authorities is to emphasise that the question of reasonable
practicability is one of fact for the Tribunal. He
said this in paragraph 9 of the Judgment in the Northamptonshire
case:
“9. In my judgement the judge was right not to read
Lord Phillips’ endorsement of the Dedman Principal 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 he was not reason
practicable for him to present his claim in time.”
70.
And he goes on to deal with circumstances where that might apply,
identifying as the paradigm case, one where both claimant and adviser had been
misled by a material factual matter; I myself would give as an example, a
dishonest factual statement by the employer.
71.
But Underhill P draws a distinction at paragraph 10 between those
cases where the legal advisers’ wrong advice might not be negligent, and those
cases where it is negligent and he came to the conclusion that it was reasonably
practicable for the claimant to have brought his claim in time in the Northamptonshire
case at paragraph 11, adding:
“11. The burden of the Dedman Principal 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.”
72.
It follows in my judgment from what Underhill P collected from the
authorities, with which analysis I agree, that it may not be such an
overarching principal that the Claimant must accept as his responsibility an
error on the part of skilled advisers. If there is no negligence, then it will
not be reasonably practicable for the employee to put in his claim in time.
73.
This case of course, submits Ms Stout, relates to clear negligence
on the part of the first solicitors. But it seems to me worth pointing out
that, as part of the investigation into what is reasonably practicable, it
would be necessary to investigate what kind of error it was that the solicitors
had made.
74.
The question then is whether this error, on the part of the legal
advisers, applies in the same way in relation to reasonableness? Putting it in
the way in which the President put it at paragraph 15 of his judgment in the Cullinane
case, whether the fact that for the purpose of the test of reasonable
practicability an employee is affixed with the conduct of his advisers falls to
be applied to the issue of reasonableness?
75.
As I pointed out earlier, Underhill P accepted that there is a
distinction to be made between the two parts of s.139(1)(b). I agree. It
seems to me that one is looking at somewhat different matters when one is
asking whether it was reasonably practicable for the complaint to be presented
before the end of that period, as opposed to whether the Tribunal considers the
further period that elapsed between the end of the primary limitation period in
s.39(1)(a) and the date when the claim was presented, was a reasonable period.
76.
Reasonable practicability relates to the steps taken by the employee,
reasonableness in relation to the second part of subsection (1)(b) relates to
the period itself. If it comes to a choice between what is said by
Underhill P obiter dictum in the case of Cullinane v Balfour Beatty Engineering Services, and what is said by Silber J in Northumberland County Council v Thompson
and HHJ McMullen QC in the Lezo v OCS Group (UK) Ltd
case, I would prefer to follow the approach of Underhill P that there is a
distinction as between the first part and the second part of s.139(1)(b).
77.
The question is whether it makes any significant difference in any
particular factual situation. I entirely agree with what Underhill P went
on to say at paragraphs 16 and 17 of the Judgment in the Cullinane
case. Whether or not the conduct of the solicitor will render the further
period reasonable or unreasonable is certainly something that should be taken
into account and, it seems to me, whether or not the solicitor has made an
error that can be characterised as negligence is also a most relevant
consideration.
78.
But I do not accept Ms Stout’s submission that one should
necessarily translate the Dedman Principal, even in cases of negligence, to the
issue as to whether it was reasonable to delay for a further period so that it
would be fatal to reasonableness in relation to the further period, just as it
would be fatal to reasonable practicability.
79.
In the end, however, it may not matter in the instant case whether I am
right or wrong to follow one or other path, because it seems to me abundantly
clear that the Employment Judge did err in paragraph 37 because she did not
consider the nature of the conduct of the solicitors. She, in effect, created
a division between solicitor and client in paragraph 37, that separated the
Respondent from the actions of his solicitors.
80.
In my judgment, whether Ms Stout is right or, as I would prefer to
think, there is some room for thinking that not in every case will the conduct
of the solicitors be such as to render a further period unreasonable, even if
the solicitor has been negligent, although I accept that may be a very rare
case indeed, here, the Employment Judge has failed to take account of that very
relevant consideration. For that reason alone, I would allow this appeal.
81.
But I also accept Ms Stout’s first submission, that the Employment
Judge failed to make decisions upon factual inconsistencies. I do not think
that she had the luxury that she allowed herself at paragraph 32 of her
Judgment, of believing that she need not “pay any particular attention to this”
because there was “an underlying consistency in what he said”.
82.
In my judgment, in these cases, the whole of the further period must be
scrutinised with care and in detail and I think that what is, if I may say so
with respect to the Employment Judge, a fudging of the issue as to when things
happened does not allow for a scrutiny of the whole period in detail.
Accordingly, the Appellant succeeds also on the first point. I regard the
third point as, in essence, pendent on either the first or the second point.
If I had to decide it, I would not accept that it was perverse of the learned
judge. It was, in fact, the misdirection identified either in ground 1 or
ground 2, that led her to reaching the conclusion that the period was
reasonable.
83.
I have much more difficulty with ground 4. It seems to me at least
possible that the Employment Judge has looked at the position of the second
solicitors and concluded that if they were consulted on 10 or 12 May (see
paragraph 32), had an ET1 form in draft by 22 May, which was then approved
and submitted on 26 May, that was acting with reasonable expedition in the
circumstances. I am very acutely aware that essentially these are questions of
fact to be decided by the Employment Judge.
84.
Nevertheless, I think it is unfortunate that the Employment Judge, if
she did conclude that the second solicitors acted with reasonable expedition
and could not be criticised, and therefore there was nothing to go into the
reasonableness balance, if I may call it that, from the point of view of their
conduct, did not spell that out and give some reasons as to why she did not
think that they needed to act more quickly.
85.
It may be that paragraph 36 bears on this, but if it does it raises as
many questions as it answers. Is she saying there that this was a difficult
matter for them because it involved a search for whether there had been a
breach of any legal rights or obligations? It seems unlikely because she starts
the paragraph by reference to this material persuading her that Mr Allen’s
explanation about the time limit that he thought he was under was a convincing
one.
86.
I have come to the conclusion in relation to ground 4 that the appeal
should also be allowed, albeit with some hesistation. So far as ground 6 is
concerned, there is very considerable force in the point made that if
paragraphs 26 and 27 are connected, as I have indicated I think that they are,
and paragraph 26 contains an explanation that must be erroneous, as I have
accepted it does, then the paragraph 27 conclusion may be unsound. But the
paragraph 27 conclusion is a possible non-sequitur from the paragraph 26
material. It is a conclusion that he did not know that he was being denied
jobs on grounds related to union membership. Whether that is meant to
encompass his explanation that he thought he did not get the job because he had
taken Balfour Kilpatrick to the Employment Tribunal, is something that I am
unsure about.
87.
I am not persuaded that this is a matter where the evidence is very
clear. As I have already mentioned, Ms Stout referred me to the terms of
the entry in the database kept by Mr Kerr and disclosed by the Office of
the Information Commissioner. She submitted that Mr Allen, the
Respondent, must have known all that. She indicated that, in the course of
cross-examination, some of these matters had been put to him, but I was not at
all clear exactly what it was that had been put to him, and it seems to me to
be inferring a very great deal indeed to suggest that he accepted everything
that was entered in the database, presumably, by Mr Kerr.
88.
With even greater reluctance or hesitation than was the case in relation
to ground 4, I will allow the appeal, on the basis that it seems to me that
there is a difficulty, as between paragraph 26 and 27. Had paragraph 27 simply
stood on its own, I would have regarded this as a matter of fact to be decided
by the Employment Tribunal on the evidence that it had heard, but I am
discomforted by the fact that there appears to be some connection, even though
it is a possible non-sequitur, and in the circumstances it seems to me
that the matter should go back.
89.
It has been strongly urged that I should dispose of this in the way that
Lady Smith disposed of the appeal in Royal Bank of Scotland v Theobald by remitting the matter to the Employment
Tribunal. There may be some force in the suggestion that it is very difficult
to see how a solicitor holding themselves out as an employment expert would not
appreciate that time was of the essence and that something ought to be got to
the Tribunal without delay, but it seems to me that matter has really not been
explored for the very reason why I allow this appeal, namely that paragraph 37
proceeds on the erroneous premise that the acts of the solicitors are, in some
way, dislocated or disconnected from the Respondent himself.
90.
Lady Smith took the view that there was no need for any further
evidence in the Theobald case. In my judgment there is a need
for this matter to be remitted and to start all over again. There seems to me
to be a need for evidence as to the nature of the solicitor’s error. There
seems to me to be a need for evidence to be explored so far as the Pfizer’s
re-employment issue in 2001 is concerned. The position is nothing like the
same in my mind as it was in the Theobald case.
91.
Accordingly, I will remit this to an Employment Tribunal. It seems to
me that it would be heard more quickly if the matter was remitted to any
Employment Judge; that is a consideration that weighs heavily with me. I also
think that there may be a need to hear much of the evidence; indeed, I think
there is a need to hear all the evidence again, and therefore it might be
better to have a fresh mind brought to bear. Accordingly I will allow the
appeal and remit this for a complete re-hearing before a differently
constituted Employment Tribunal.
