Beasley v National Grid

By section 111(2) of the Employment Rights Act 1996 says that an Employment Tribunal:

The applicant, Mr Beasley, presented his complaint 88 seconds late. The tribunal held that it had no jurisdiction to hear it because the complaint was out of time and its decision was upheld by the Employment Appeal Tribunal. Permission to appeal to this court was refused on the papers by Pill LJ, but on a renewed application Wall LJ ordered that it be adjourned on notice to the respondent with the appeal to follow if permission to appeal was granted. We have heard argument without distinguishing between the application for permission and the substantive appeal.

In his reserved judgment Wall LJ identified his concerns about the tribunal’s decision -- notably that it had not taken all the facts giving rise to the delay fully into account, had not given proper consideration to the question of reasonable practicability and had not adequately reasoned its decision.

Mr Beasley was employed by the respondent, National Grid, from September 1974 until he was dismissed for misconduct with effect from 7 February 2006. That meant that any complaint of unfair dismissal had to be presented to the tribunal before midnight on 6 May 2006 to comply with the provisions of section 111(2)(a). At the time of his dismissal Mr Beasley was an operational manager working in one of the respondent’s control rooms. Mr Beasley appealed against his dismissal, but this internal appeal was dismissed on 29 March 2006. He was told by the respondent that his next step was to appeal to an independent person under the terms of a collective staff agreement. However, after taking advice from ACAS, he informed the respondent in a letter dated 11 April that he would not exercise this right and that “my route is via the Employment Tribunal as far as I am aware.” At the same time, however, he raised a number of grievances relating directly and indirectly to his dismissal under the modified grievance procedure prescribed by Schedule 2 Part 2 of the Employment Act 2002. By 6 May all that had happened to this was that the respondent had agreed to investigate.

What I have set out so far is a matter of record. Mr Beasley’s evidence was that after his dismissal he took legal advice. On 6 April his solicitor advised him in writing of the three-month time limit for making a claim for unfair dismissal; but he says the following day his solicitor told him on the telephone that the time would be extended by a further three months if he put in a grievance. This, Mr Beasley believed, was confirmed by the booklet “Making a claim to an employment tribunal” and the document referred to in that booklet, “Resolving Disputes at Work: A Guide for Employees”, of which he had obtained copies. But, he said, by 5 May he had become uneasy about the matter and telephoned ACAS for advice. They told him that the deadline would only be extended by 28 days because of the grievance, but because they sounded unsure about the matter Mr Beasley rang the Employment Tribunal helpline and was then told (correctly) that any grievances he had raised were irrelevant to the three-month deadline which still applied to his claim for unfair dismissal. He then contacted his solicitor on 5 May at 17.48, saying:

So we are now at Friday evening with the deadline due to expire immediately before midnight the following day. Mr Beasley did nothing that evening. In his statement to the tribunal he described what happened the following day as follows:

By then it was a second too late, but it was not in fact received -- in other words ‘presented’ in the language of the statute -- by the ET until 00.01:28 on Sunday 7^th so it was, as I have said, 88 seconds out of time. In its answer to the claim the respondent took the time point and asked for a prehearing review to determine whether the tribunal had jurisdiction to hear the complaint. This hearing took place before a tribunal chairman, Mrs Hill, sitting alone. Both parties were represented by counsel. Mr Beasley gave evidence and was cross-examined, and counsel on his behalf made both oral and written submissions to the tribunal. The tribunal’s decision dismissing the complaint was sent to the parties on 5 September 2006. The tribunal was asked to review the decision by Mr Beasley’s solicitors because it had misunderstood the time at which the claim form had been received, and on 13 September 2006 the parties were informed:

Written reasons for the decision were sent to the parties on 25 October 2006. The essence of the reasoning is contained in paragraphs 11-14 of the tribunal’s reasoning where it said:

Since the hearing before the tribunal Mr Beasley has acted in person. The EAT directed that his appeal should proceed to a full hearing to determine whether or not the tribunal’s decision was invalidated or should be reconsidered because of failure to take into account matters relevant to deciding whether it was reasonably practicable for Mr Beasley to present his claim in time.

The appeal was heard by Silber J sitting alone. He first considered whether the tribunal had considered the question of reasonable practicability at all, since there is no express reference to this test or to the statute in the tribunal’s written reasons. Silber J decided that it must have considered this question for reasons which he set out in paragraph 12 of his judgment, which I find entirely convincing and, as I understand it, Mr Beasley does not challenge this conclusion. Mr Beasley’s complaint was and is that in considering whether it was reasonably practicable the tribunal failed to have regard to material considerations or, if it did, it failed to explain how they had impacted on the decision and so its reasoning was defective.

Silber J identified the material considerations as being a) the state of the claimant’s knowledge, relating to the need to bring his claim within three months; b) the steps taken by the claimant to ensure that he did bring his claim within that period; and c) any impediments which prevented the claimant from bringing his claim within this period. He then concluded that the tribunal had considered each of these matters and that its conclusion was one which was open to it on the facts and so was not open to challenge for error of law.

Now the provisions of section 111(2) are clear. Complaint must be presented within three months unless the complainant can show that it was not reasonably practical to do so. If he cannot, the tribunal has no jurisdiction to hear his complaint. Either it is out of time or it is not. There is no grey area for complaints which are only a bit out of time. So the fact that this complaint was only 88 seconds out of time does not alter the requirements of the statute, although the reasons for this delay were relevant to the question of reasonable practicability and the length of the delay would have been relevant to the question of the further period which the tribunal considered reasonable if it had decided that it was not reasonably practicable for Mr Beasley to comply with the three-month time limit.

This court has considered the provisions of section 111(2) in a number of cases from which it is clear that what is reasonably practicable is pre-eminently a question of fact for the tribunal in each case, and it is seldom that an appeal from such a decision will lie. In Crofton v Yeboah [2002] IRLR 634, at paragraph 93 Mummery LJ said:

With these principles in mind, I turn to Mr Beasley’s submissions. From the outset he has made it clear that he is not saying that the tribunal’s decision was perverse. As I have said, he complains that it did not take material considerations into account and, alternatively, if the tribunal did take those matters into account its reasoning is defective because it does not show that it did so.

We have been referred to the authorities about the adequacy of reasons. Mr Beasley’s complaint is that these reasons are not meek compliant because he does not know why he lost. The judgment does not spell out the reasons for the conclusion, as the regulations governing such decisions require. He instances the fact that he does not know what the tribunal thought about his points relating to the statutory discipline and grievance procedures, which led him to believe -- mistakenly, as I think he now accepts -- that he did have an extra three months in which to make his complaint. He says that if those reasons had been spelt out to him he might have had to accept the decision, but as the reasoning is defective he should not have to do so, and we should remit the matter to the tribunal for them to produce a proper decision.

I propose to test these arguments by looking at the submissions made by counsel in his skeleton argument to the tribunal and at the reasons themselves, to see whether they were dealt with at all or whether they were adequately dealt with.

At paragraphs 10 and 11 of his skeleton argument counsel said:

Now it seems to me that in paragraph 11 of its reasons, the tribunal did deal with these arguments about confusion. I accept (as the EAT accepted) that the reasoning could have been fuller, but in paragraph 11 the tribunal is obviously addressing this argument about confusion and saying that it was not a trump card; that it could not be used to explain the whole of the delay.

Counsel’s submission continued:

In the following subparagraph the events of Saturday 6 May were rehearsed, and then counsel said:

Now that aspect of the matter was undoubtedly dealt with by the tribunal in paragraphs 12 and 13 of its reasons and I do not understand Mr Beasley to argue to the contrary. He argues that the tribunal attached too much weight to these events and did not consider them in the context of the earlier period of confusion, but the weight to be attached to a factor of this kind is a matter for the tribunal. I can see nothing which amounts to an error of law in the way it approached this question. It was clearly open to the tribunal to conclude that it was reasonably practicable for Mr Beasley to have got in his complaint on time between the Friday evening (by which time he could have been in no doubt what he had to do) and midnight the following day.

On this point I would endorse what the EAT said in Fishley v Working Mens College 28 October 2004, Bean J presiding. That was a case in which the complaint was 11 minutes late because the appellant’s printer had broken down. At paragraph 13 Bean J said:

So for those reasons I reject the suggestion that the tribunal failed to take material considerations into account in making its decisions. It took into account each of the considerations which his counsel had relied on and I would answer the rhetorical question which Mr Beasley posed at the end of his speaking note for today’s hearing by saying that the reasons did contain sufficient material to enable him to know why he lost. After all a decision as to jurisdiction is a relatively straightforward matter. One can expect reasons which are generally much more brief than those to be given at the end of a full hearing. I do not think this tribunal’s reasons are open to the criticism which Mr Beasley has made of them. They served the essential purpose, which was to tell him why he had lost.

All in all, despite Wall LJ’s concerns, I think the tribunal did give proper consideration to the question of reasonable practicability. It reached a decision which was open to it on the facts and one which is not infected by error of law for lack of reasoning.

For those reasons I think this is a case in which we should refuse permission to appeal because Mr Beasley’s proposed appeal has no real prospect of success. I recognise, as Pill LJ observed, that this was a harsh decision. With legislation less strictly worded this is a case which might easily have passed over a time bar on some equitable basis: the respondent was not prejudiced by the delay and 88 seconds is, in any event, neither here nor there. But the plain fact is that section 111(2) does impose a harsh regime. So do most time bars, which exist for the very good policy reason, that parties should know where they stand within a limited time of any dispute arising.

I agree.

I agree.