Beasley v National Grid

By section 111(2) of the Employment Rights Act 1996 says 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.”

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:

“I need to speak to you urgently. I left a message on your voicemail and with a secretary asking you to phone me this evening. If you are still at work will you please ring me. I thought that as I was raising grievances the timescale went out to six months. The employment tribunals helpline tell me that for the original dismissal the three months timescale still stands.”

The solicitor replied about an hour later by email at 18.41, saying:

“Just to confirm our telephone conversation (2 minutes ago). Yes, lodge your ET1 today. You should be able to download a claim form off the DTI website under [then the web address was given]. The online claim form is self explanatory and should be acknowledged straightaway. You should keep any receipt/confirmation as evidence. Do keep a copy of the online form for yourself in any event.”

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:

“I spent all Saturday attempting to fill in the ET form which I found very difficult to use. I believe there is a conflict with the latest version of Adobe Acrobat which caused me to lose data on several occasions.

When, after much perseverance, I managed to complete the form the next hurdle was to send it. When the ‘button’ on the form is pressed to an email a template is generated which requires the user to fill in the ET email address. I looked up the address which appeared to be qsi.gov.uk due to the underscoring blanking the bottom of the g. I attempted to send a message at 23.44. I received a rejection at 23.45. I checked the address again and sent a test message at 23.57 which was not rejected. I then sent the form to the correct address at 24.00.”

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:

“The Chairman has refused your request for a review and states the following:

The reason for the rejection of the claim is that it was sent and received out of time. It was reasonably practicable to have sent the claim in time. The difference between 1.5 minutes and 1.5 hours makes no difference as the claim could never have been received in time, given it was only successfully sent by the claimant on 7 May 2006.”

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:

“11.

Having considered the conflicting arguments I was not satisfied that the claimant could argue that he was misled by conflicting advice he had received regarding time limits. Although in the case of Marks and Spencer v Williams-Ryan [2005] IRLR 562 the issue of poor advice had resulted in the claim being accepted, in this instance the claimant had all the documentation which indicated a three month time limit applied and was given specific advice the day before the time limit expired that he should get his claim in immediately.

12.

It was his failure to transcribe the email address correctly that meant that it was sent into the ether as it were. This is no different from a person who misdials a telephone number for the purposes of a fax. It is only when the claim is received by the Employment Tribunal that it is deemed to be presented.

13.

I noted that he could have sent the claim on 6 May albeit three minutes before the time limit but chose to send a test message instead. By his own evidence the actual time he sent it was 7 May albeit only just and it was actually received on 7 May at 01.28.

14.

On that basis if the effective date of termination is 7 February the claim was out of time and there is no jurisdiction to consider it.”

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:

“[An appeal] ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached.”

I also bear in mind that at the appellate stage the court should take care to avoid concluding that an experienced tribunal -- such as this was -- by not expressly mentioning some point, has actually overlooked it.

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:

“10.

The tribunal is invited to find that it was not reasonably practicable for [Mr Beasley] to present his complaint in time, and that a delay of one and half minutes is a reasonable period by which time should be extended.

“11.

In considering this matter the tribunal should have regard to the following submissions…

“(2)

[Mr Beasley’s] evidence makes plain that, although he knew of the right to complain of unfair dismissal, he entirely understandably fell foul of the ‘minefield of technicalities’… that now surrounds the statutory requirements. [Thus he] had acted entirely in accordance with the spirit of the statutory scheme -- an internal grievance procedure was ongoing, and [Mr Beasley] had diligently attempted to comply with the scheme’s requirements.

(3)

The reason why [Mr Beasley] did not present his claim earlier in the three month period was because of (i) the ongoing disciplinary and grievance procedures, and (ii) the advice he received from his then solicitors, ACAS and the Employment Tribunal service.”

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:

“(4)

In any event, the tribunal should focus on the circumstances relating to that final period, rather than the three months as a whole.”

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

“(6)

Thus but for the unforeseen event of the claim being sent to an incorrect address, [Mr Beasley] would have complied with the statutory requirements. In all the circumstances it was reasonably practicable for the complaint to be presented in time.”

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:

“We must say it is the common experience of anyone who has tried to operate a computer, a printer, or a fax machine, that they are temperamental creatures and one cannot rely on success first time within a few minutes. We think that if the presentation of an Originating Application is left to the very last moment, then a temporary impediment, such as the breakdown of a piece of office equipment or something of that kind is one of the risks of life which has to be taken.”

The EAT upheld the tribunal’s decision that the complaint had been made out of time.

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.