Marks & Spencer Plc v Williams-Ryan

J U D G M E N T

1. LORD PHILLIPS, MR: This is an appeal by Marks & Spencer Plc against a decision originally taken by an employment tribunal sitting in Central London dated 17th December 2003 to permit the respondent, Ms Williams-Ryan, to present a complaint of unfair dismissal nearly four months after the date of her dismissal on the ground that it was not reasonably practicable for her to present it within the statutory three-month time limit, and that she did present it within a reasonable time thereafter.

2. An appeal by Marks & Spencer to the Employment Appeal Tribunal ("the EAT") was dismissed on 13th September 2004.

3. Permission to appeal to the Court of Appeal was refused on paper by my Lord, Lord Justice Keene, on 3rd November 2004, but granted by Lloyd J after a renewed oral application on 10th December 2004.

The facts

4. The respondent was employed as a part-time sales assistant by the appellant in 1997. On 17th April 2003 she was summarily dismissed on the ground of gross misconduct following a disciplinary hearing in relation to an incident on the shop floor in which she had sworn at another member of staff.

5. The respondent contends that her dismissal was unfair, having regard to the circumstances of the incident, the conduct of the disciplinary hearing and her previously unblemished disciplinary record. It is her case that summary dismissal was a harsh and disproportionate response to the misconduct at issue.

6. On the first working day after her dismissal, 9th April 2003, the respondent telephoned the Citizens Advice Bureau ("the CAB") for advice. In a short five-minute conversation she was advised that she should exhaust the appellant's internal appeal procedure. She was not told that she had a right to complain to an employment tribunal, let alone that there was a time limit for presenting such a complaint.

7. The letter confirming her dismissal was sent on 24th April 2003. It explained that an appeal must be brought within five days of receipt of the letter and referred to the separate right the respondent might have to have her case considered by an employment tribunal, in respect of which she would need to seek external advice.

8. On 30th April 2003 the respondent presented her detailed grounds of appeal to the appellant. She concluded the letter by indicating that a copy would be sent to an employment tribunal and to the CAB.

9. The hearing took place on 16th June 2003. The guide to the appellant's internal appeal procedure indicated that "a written report detailing the outcome of the appeal hearing" would be sent to her home, "ideally within 14 days" of the appeal hearing.

10. On 20th June 2003 the respondent obtained a blank form and brochure in relation to presenting a claim to the employment tribunal from a former colleague, but she did not at this stage study these documents. This was because she was under considerable pressure in relation to a teacher training course that she was pursuing at Roehampton College, in circumstances where she had failed her coursework and postponed her teaching practice as a result of the disruption caused by her dismissal. She was allowed to try to make up for these deficiencies both in June and July, but was ultimately unsuccessful. During this period the three-month time limit expired on 16th July 2003.

11. The respondent was informed of the dismissal of her internal appeal by a letter dated 31st July 2003, which took several days to reach her. She indicated in her acknowledgement of the letter, on 6th August 2003, that she would now pursue a complaint to the employment tribunal. Her originating application was received by the employment tribunal on 15th August. By this stage she was aware that the time limit had expired, and in her covering letter she explained that she had first appealed through the appellant's internal appeal procedure and believed this had been deliberately slowed down to ensure that she missed the deadline. That is not an allegation which was pursued before the EAT or this court.

The decision of the employment tribunal

12. Section 111(2) of the Employment Rights Act 1996 provides that:

"... an employment tribunal shall not consider a complaint [of unfair dismissal] 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."

13. In October 2004 the Employment Act 2002 (Dispute Resolution) Regulations 2004 came into effect. They include a rather complicated provision by regulation 15, which has the effect that a time limit such as that with which this appeal is concerned is extended to have regard to time taken, or reasonably believed to be taken, by an internal appeal procedure. That of course was not in force at the material time, but it perhaps restricts to some extent the significance of this particular appeal.

14. In considering whether it was satisfied that it had not been reasonably practicable for the respondent to make a timely application, the employment tribunal applied two decisions of this court dealing with predecessors of section 111(2): Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53 and Palmer and another v Southend-on-Sea Borough Council [1984] ICR 372.

15. The reasons for the employment tribunal's decision appear in paragraphs 15 to 21 of the decision:

"15. The Court of Appeal's guidance in Palmer is to the effect that the question of whether it was reasonably practicable for a complaint to be presented in time is a matter of fact for the Tribunal, taking into account all the circumstances of the case. Those circumstances can be quite wide and include, for instance, whether an employee was physically prevented from complying with the limitation period; it may also be relevant to investigate whether, at the time of dismissal (and, if not, when thereafter) the employee knew that he had the right to complain of unfair dismissal. In another case, the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee, and it will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom. It may also be relevant for the Tribunal to consider the nature of any advice which is given to the employee and it may be relevant for the Tribunal to ask itself whether there was any substantial failure on the part of the employee or his adviser which led to the failure to comply with the time limit." [All of that is extracted from Palmer .]

Conclusion

16. The Applicant acted promptly in seeking advice when she was summarily dismissed by the Respondent. The nature of this advice was that she should attempt to resolve her dispute with her employer through the internal procedures. This she attempted to do. At all stages, she was optimistic that her appeal would succeed. Her first priority was in retaining her job, rather than seeking any other redress against the Respondent. It was not until 29 April that she was formally advised by the Respondent that she had a right to appeal. She did so promptly, but on 6 May the Respondent wrote to her, telling her that she had failed to complete a pro forma application to progress her appeal. She had not been initially advised of this and, in the Tribunal's view, the Respondent was not making it easy for her to submit an appeal within a reasonable time. Again, she acted promptly and returned the documentation on 8 May. It was some three weeks later before she was told the date of her appeal. This was not to be until 16 June. The Respondent's guide to the appeal procedure indicated that she was likely to receive a decision on her appeal within 14 days of the hearing.

17. We note that at all staged in the internal procedure, Miss Williams Ryan complied with the Respondent's time limits. However, the Respondent did not. In addition to making it difficult for her to launch her appeal, they did not notify her of the outcome of the decision within the indicated timeframe, nor did they follow their own procedures in advising her that there would be a delay. She only learned of this when she pursued the person hearing the appeal, to be told that that person was about to go on holiday. Again, she waited, being of the view that 'no news was good news' and that the prospects of her appeal being successful were enhanced by the delay. The Respondent rejected her appeal by letter of 31 July which she received a few days later. By this time, because of the Respondent's delay, the three month time limit for presenting a complaint had expired.

18. The Applicant acted responsibly in seeking legal advice promptly. She sought to resolve the problem through the Respondent's own internal procedures and followed them meticulously. The Respondent's guide to the appeal process sets out in some detail the various Tribunal jurisdictions, and the qualifying service an employee needs to have in order to appeal to a Tribunal. The Respondent relies on this advice, and the earlier indication in the dismissal letter, as being sufficient to put the Applicant on notice of her rights. We find that this information amounts to advice to employees. We are concerned that the advice given is insufficient and misleading. While containing considerable detail on the Tribunal's jurisdictions, there is nothing to suggest that the Tribunal operates within strict time limits. There is reference to the right 'independently of the internal appeal process' to resort to an Employment Tribunal. However, there is no explanation that this right should be exercised promptly and that there should not be any delay in awaiting the outcome of the internal procedure.

19. The Tribunal accepts Miss Williams Ryan's evidence that she believed that she had to await the outcome of the internal appeal before she could make a complaint to a Tribunal. She referred to the advice of the Citizens Advice Bureau and also to the Respondent's internal guide. In the circumstances, we are satisfied that it was not reasonably practicable for her to present her complaint within the necessary time limits. She was not aware that in order to protect her position, she needed to present a complaint before the three-month time limit expired.

20. Although she had the Tribunal's form and the booklet in her possession from late June onwards, we accept that there were other, far more pressing, considerations which prevented her from studying this information, relying as she did, on the fact that she could proceed to the Tribunal after notification of the internal procedure, when she received notification of the appeal on 6 August and submitted her complaint to the Tribunal within a reasonable period thereafter.

21. In the circumstances, the Tribunal believes that we do have the grounds on which to exercise our discretion to extend time and to allow her to proceed with her complaint of unfair dismissal."

The decision of the EAT

16. The EAT conducted a wider review of the authorities than the employment tribunal. They concluded that the most relevant guidance was to be found in the decision of this court in London International College Ltd v Sen [1993] IRLR 333, which they said was to "concentrate on the state of mind of the prospective complainant and the extent to which he or she understood his position." The EAT continued:

"In this case there was a clear finding from the Tribunal that as a result of the CAB advice the Respondent believed that she had to await the outcome of the internal appeal before she could make a complaint to the Tribunal."

17. Dealing with the relevance of the delay in carrying out the appellant's internal review procedure, the EAT added:

"We fully accept that the existence of an internal appeal procedure is not by itself a reason for failing to commence proceedings, but that in the context of this particular case the Tribunal found that she had received advice that she should await the outcome of that procedure before making a complaint to the Tribunal."

18. The EAT concluded that it could find no fault in the employment tribunal's approach.

The law

19. An appeal to this court, and indeed to the EAT, only lies on a point of law. It is not for this court to review the employment tribunal's findings of fact, unless it is alleged that there is no basis upon which they could be reached so that they were perverse. It is necessary to identify the relevant legal principles that apply to section 111(2) and then to consider whether those principles were correctly applied by the employment tribunal. I propose first to set out some principles which are not controversial.

20. The first principle is that section 111(2) should be given a liberal interpretation in favour of the employee. Lord Denning MR so held in Dedman v British Building & Engineering Appliances Ltd . In that case the relevant provision was more draconian than section 111(2), in that it required a complaint to the employment tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not "practicable". When the provision was changed to its present form, the EAT held that the same approach to construction should be adopted (see Palmer at page 381) and, so far as I am aware, that approach has never been questioned.

21. In accordance with that approach 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. So far as that question is concerned, there is a typically lucid passage in the judgment of Brandon LJ in Wall's Meat Co Ltd v Khan [1979] ICR 52 at page 61 which I would commend:

"With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.

For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.

While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries."

22. Ms Callaghan, who has conducted the appellant's case with admirable clarity, submitted that there are some further relevant legal principles which the employment tribunal and the EAT ignored, namely:

(i) Where an employee is aware of the existence of a right to complain to the employment tribunal, the employee is put on inquiry as to the details of that right, including the question of any time limit that applies.

(ii) The existence of an internal right of appeal is of no relevance to the question of whether it is reasonably practicable to make a timely complaint to the employment tribunal.

(iii) Fault on the part of an adviser such as the CAB falls to be treated as fault on the part of the employee.

23. It seems to me that the first two propositions are not truly principles of law at all. They are conclusions which will often be drawn when considering what in this case is the vital question of fact, namely whether the employee could reasonably be expected to be aware of the fact that there was a time limit for making a complaint to the employment tribunal. I shall deal further with these propositions when I come to consider Ms Callaghan's submissions on the facts.

24. The third proposition is unquestionably one of law. It is, expanding it a little, that 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. There is a certain amount of authority relevant to this proposition. In Dedman at page 61 Lord Denning said this:

"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] I.C.R. 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."

25. Scarman LJ at page 64 concluded his judgment as follows:

"When one turns from the general to the particular. Mr Dedman's case is hopeless. He knew he had rights and he was being advised by solicitors well before the expiry of the time limit. There was no reason why he could not present his complaint in time. It was practicable to do so; the fact, if it be so, that his solicitors overlooked the time limit did not make it impracticable, though it may give him a right to damages against them."

26. In Wall's Meat Co Ltd v Khan [1979] ICR 52 at page 56 Lord Denning returned to this theme:

"I would venture to take the simple test given by the majority in Dedman's case [1974] I.C.R. 53, 61. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights - or ignorance of the time limit - is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences."

27. At page 60 Brandon LJ said:

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such 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."

28. In Riley v Tesco Stores Ltd [1980] IRLR 103 the employee sought to excuse failure to make a complaint to the employment tribunal in time by alleging that she had given bad advice by a Citizens Advice Bureau. By the time the matter reached the Court of Appeal, the CAB had been joined and the employee's allegations against the CAB were disputed. There was much debate as to how, if at all, Lord Denning's comments in the Wall's Meat case applied to a CAB, which Stephenson LJ did not receive with enthusiasm. He expressed the view that it was immaterial whether an adviser was skilled or unskilled, engaged to give advice or casually consulted. But when his judgment is read in full and with care it becomes apparent that all of this was obiter, and that Stephenson LJ deprecated the application of Lord Denning's observations rather than the simple application of the words of the statute. Speaking of the burden of proof on the employee to show that it had not been reasonably practicable to make his complaint in time, he said:

"I would hesitate to say that in every case where an adviser is consulted a Tribunal is bound to hold that the burden of proof has not been discharged. Every case must depend upon its own facts."

29. Waller LJ did not go as far as Stephenson LJ did in describing the breadth of the advice which would preclude an employee from showing that it had not been reasonably practicable to make a timely complaint. He said:

"What is the position if, knowing of your right, you ask another to take the necessary action? In my opinion, you cannot then be in a better position than if you had retained the power to act yourself. If you have retained a skilled adviser and he does not take steps in time, you cannot hide behind his failure. There may be circumstances, of course, where there are special reasons why his failure can be explained as being reasonable. Like my Lord I am, however, doubtful whether this situation depends on the skill of the adviser. The defence of not being reasonably practicable might fail, whether or not the adviser was skilled, if in fact he was properly acting."

30. Finally, I should turn to the judgment of Sir Thomas Bingham MR in London International College Ltd v Sen . That case involved an employee who was dismissed on 9th July 1990. This meant that the last day for submitting his complaint to the employment tribunal was 8th October. He consulted a solicitor who advised him that the last day was 9th October. It appears that he had some doubts about this for he got in touch with the employment tribunal and one of the staff there confirmed that the last day was the 9th. He submitted his application on that day and the employers took the point that he was out of time. The employment tribunal held that in these circumstances he had established that it had not been reasonably practicable to submit his complaint in time and the EAT dismissed the employers' appeal. Sir Thomas Bingham, after referring to the relevant authority, observed:

"I do not for my part find it easy to apply these principles because, as I have indicated, I do not find it easy to understand them. I question, however, whether the earlier cases were really purporting to lay down a rule of law to govern what is essentially a question of fact, and I am not persuaded that the prospective complainant loses for all time his rights to rely on the escape clause in s.67(2) absolutely once he consults a solicitor potentially liable for wrong advice if, as in the present case, he distrusts that advice and immediately proceeds to obtain further advice from a body such as an Industrial Tribunal which may not be so liable. That, in effect, was the decision both of the Industrial Tribunal and of the Employment Appeal Tribunal and I do not, for my part, feel able to say that they were wrong in law to reach the conclusion that they did."

31. 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.

32. The observations of Stephenson LJ in Riley were, as I said, obiter. There is no binding authority which extends the principle in Dedman to a situation where advice is given by a CAB. I would hesitate to say that an employee can never pray in aid the fact that he was misled by advice from someone at a CAB. It seems to me that this may well depend on who it was who gave the advice and in what circumstances. Certainly, the mere fact of seeking advice from a CAB cannot, as a matter of law, rule out the possibility of demonstrating that it was not reasonably practicable to make a timely application to an employment tribunal. Indeed, Ms Callaghan did not so suggest.

33. The decision in this case of the EAT is capable of conveying the impression that the CAB expressly advised the respondent that she need not make a complaint to an employment tribunal until the internal appeal procedure was at an end. Two employment tribunals appear so to have interpreted the decision and declined to follow it on the ground that it is contrary to Dedman .

34. But that was not the position at all. The CAB did not advise the respondent that she need not file her application to the employment tribunal until the internal appeal proceedings were concluded, nor did the employment tribunal so find. If the EAT's decision suggests to the contrary, it oversimplified the position. The employment tribunal held that a number of factors contributed to the fact that the respondent did not discover about the time limit until it was too late to comply with it:

1) the fact that the CAB advised her to get on with the internal appeal and made no mention of her right to complain to the employment tribunal.

2) The fact that the appellant gave partial information about the right to complain to an employment tribunal, omitting the vital fact of the time limit.

3) The pressure that the respondent was under in attempting to complete her teaching training course.

The brief telephone conversation with someone at the CAB plays only a small part in the overall story, and the facts of this case do not raise the question of whether the principle in Dedman applies.

35. What did Ms Callaghan say about those facts?

(i) That the employment tribunal took irrelevant matters into consideration, namely the appellant's own delay in conducting the internal appeal.

(ii) That the respondent was put on inquiry when she learnt of the right to complain to the employment tribunal and cannot validly excuse her failure to investigate further.

(iii) The employment tribunal never considered the vital question of whether the respondent's ignorance of the time limit was reasonable.

(iv) Finally, and I think as a last resort, that the employment tribunal's decision on the facts was perverse.

36. As far as the first point is concerned, you do not have to read between the lines to see that the employment tribunal took a dim view of the appellant's procrastination in completing the internal appeal procedure, but for which the respondent would almost certainly have made her application to the employment tribunal in time. It may well be that because of this they approached the respondent's application with some sympathy, but their decision was based fairly and squarely on the respondent's belief that she had to finish her internal appeal before going to the employment tribunal. It was not based on the appellant's own delay.

37. As to the second point, I have already said that learning of the right to complain to an employment tribunal did not, as a matter of law, mean that the respondent could not show that ignorance of the time limit was reasonable. As Brandon LJ observed, that merely makes the exercise more difficult.

38. Did the employment tribunal consider whether the respondent's continuing ignorance of the time limit was reasonable? They did not do so expressly, but, as Ms Callaghan accepted, it is in appropriate circumstances legitimate to infer that this was considered.

39. In my judgment, that inference is plainly to be drawn from the express findings made in this case. In particular, the finding that the advice given by the appellant was insufficient and misleading, and the finding in relation to the pressure put on the respondent by attempting to complete her teaching training course.

40. As to the first, the later document sent to the respondent by the appellant setting out the internal appeal procedure had a heading at the end "Other key points". Those points set out the chronology that the process was likely to take, penultimately stating:

"Please remember that the Appeal Hearer's decision concludes the internal appeal process."

And then this:

"Independently of the internal appeal process, employees with one or more year's continuous service have the right to take a claim of unfair dismissal to an employment tribunal. If the claim is for discrimination (e.g. sex, race, disability, Trade Union activity or whistle blowing) there is no service criteria. You should seek independent legal advice in all of the above cases."

41. I have no doubt that this was intended to be helpful, but it does seem to me that it is at least capable of being misleading, suggesting to the reader that turning to an employment tribunal is something which can perhaps be left to be done if and when the internal appeal process reaches an unsuccessful conclusion.

42. Were these conclusions on the part of the employment tribunal perverse? I have concluded that they were not. I think the findings were generous to the respondent, but they were not outside the ambit of conclusions that the tribunal could properly reach on all the facts before them.

43. There is a constant theme running through the decisions of the Court of Appeal in these cases. I quote from the judgment of May LJ in Palmer :

"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie."

44. We have not been referred to any case in which this court has reversed the decision of an EAT on section 111(2) or its predecessors. I do not consider that this case should be the first. For the reasons that I have given, I would dismiss this appeal.

45. LORD JUSTICE LATHAM: I agree.

46. LORD JUSTICE KEENE: I also agree and wish to add only a few comments of my own.

47. I would emphasise the importance of recognising that this is not a case, despite what the EAT said, where the employee received advice from the Citizens Advice Bureau to await the outcome of the internal appeal procedures before making a complaint to an employment tribunal. The employment tribunal, in its extended reasons, records that in the short telephone conversation Ms Williams-Ryan had with someone at the CAB, there was, so far as she could remember, no discussion about taking a complaint to an employment tribunal. Nor does one know what questions the CAB staff member was asked during the course of that conversation. This, therefore, is not one of those cases where an employee has been wrongly advised by a skilled adviser, nor one where it seems likely that the employee had a remedy against that adviser.

48. What happened in this case is that the respondent subsequently received a letter dated 24th April 2003 from the appellant company about its internal appeal procedures, at the end of which letter there was reference to her possible right to go to an employment tribunal. There was no mention there, nor in any of the subsequent material sent to her by the appellant, of any time limit on a complaint to a tribunal. Indeed, in the guide to internal appeal procedure sent by the appellant to her, there was no mention of any time limit on an unfair dismissal claim and the sequence of the final paragraphs was, as the Master of the Rolls has pointed out, such that a layperson might deduce that such a claim to a tribunal followed on from exhausting the internal appeal procedures.

49. In the circumstances, the tribunal's finding that the advice given by the employer was insufficient and misleading was, in my judgment, one which was open to it. That was relevant to any consideration of the reasonableness of the respondent's belief that she should await the outcome of the internal appeal before she should make a complaint to a tribunal. Although the employment tribunal does not expressly state that that belief was a reasonable one, it seems to me, as it does to the Master of the Rolls, that that is implicit in the extended reasons, in particular in the last four paragraphs of those reasons.

50. On a different basis therefore from that adopted by the EAT, I conclude that the employment tribunal did not depart from the established principles applicable in this field of law. I too would dismiss this appeal.

ORDER: Appeal dismissed.

(Order not part of approved judgment)