Lowri Beck Services Ltd v Brophy

LORD JUSTICE UNDERHILL: This is an appeal against the decision of the Employment Appeal Tribunal (HHJ Eady QC sitting alone) dismissing an appeal against a decision of the Employment Tribunal (Employment Judge Goraj sitting alone) on a preliminary issue as to limitation.

The Claimant was employed by the Appellant company, which provides meter reading services, as a meter operative. He is severely dyslexic, and in matters of an official nature he relies very heavily on the help of his brother, Mr Michael Brophy.

In May 2017 formal disciplinary proceedings were commenced against the Claimant arising out of an incident in which he was said to have left a meter in a dangerous condition. The disciplinary hearing took place before a Mr King on 21 June 2017.

EJ Goraj found that at the disciplinary hearing Mr King told the Claimant that he would not make an immediate decision but would let him know the outcome in writing. Mr King's evidence was that it was in fact his practice to let an employee know the outcome by telephone in advance of the formal letter, but the Judge found that he did not communicate that to the Claimant. He did however telephone him on 29 June and tell him, as the Judge found, that he was being dismissed for gross misconduct, with immediate effect; that he would be receiving a letter; and that he could appeal within five days of receiving the letter. She also found that the Claimant was very distressed to be told that he was being dismissed for gross misconduct.

The Claimant did not receive the promised letter until a week later, being 6 July, though the date on the letter itself is 4 July. The letter was headed "Re: outcome of disciplinary hearing -- gross misconduct". It began:

The Claimant told his brother (to whom I will sometimes refer for convenience as Michael Brophy) about the letter. He also explained at that point (though he had not mentioned it earlier) that there had been a conversation on 29 June, but he did not when telling his brother about that conversation say that he had been told by Mr King that he was being dismissed with immediate effect. Michael Brophy then drafted a somewhat confused letter to the Appellant, adumbrating an intended claim, which was sent in the Claimant's name.

A few weeks later Michael Brophy contacted a barrister friend for some informal advice. In his email seeking the advice he referred to the date of dismissal having been in "early July", and the barrister told him that that meant that there was "an early October date" for submitting an ET1. It is clear from a subsequent letter which he wrote on the Claimant's behalf that Michael Brophy was at that point proceeding on the basis that the unfair dismissal proceedings did need to be commenced in early October.

The Claimant in fact presented his claim on 5 December 2017. Although other complaints were made, the only claims with which we are now concerned are for unfair dismissal and disability discrimination and a claim for wrongful dismissal under the tribunal's breach of contract jurisdiction.

I should at this point set out the relevant provisions as to limitation. These fall into two categories, which I take in turn.

The first comprises the unfair dismissal and wrongful dismissal claims. Section 101(1) of the Employment Rights Act 1996 gives employees the right to pursue a claim of unfair dismissal in the Employment Tribunal. Subsection (2) reads:

The primary time limit is thus three months from the effective date of termination, but a longer period can apply: I use the shorthand that the period can be “extended”, though that is not the actual statutory language. The conditions for an extension are twofold:

There has been a good deal of case law about the correct approach to the test of reasonable practicability. The essential points for our purposes can be summarised as follows:

The other relevant limitation provision is that applying to claims under Part 5 of the Equality Act 2010, including a claim of disability discrimination such as we are concerned with in this case. By section 123(1) of the Act, such claims

There is also case law about the correct approach to the exercise of the discretion under section 123(1)(b) and its predecessor provisions. We were referred to the decision of this court in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 327, in which Sedley LJ said at paragraph 31:

In addition to those provisions, a claimant may be entitled to a further period of extension by virtue of the early conciliation provisions introduced by the Enterprise and Regulatory Reform Act 2013. The provisions in question are rather complex, but all that I need say for present purposes is that a claimant cannot issue employment tribunal proceedings without a certificate issued by ACAS – the so-called “EC certificate” – stating that they have complied with the requirement to contact ACAS in order to give it the opportunity to facilitate conciliation. The certificate will state the date on which that contact occurred. If the primary time limit would have expired during that period, time will be extended by one month from the date of the certificate. In the present case ACAS issued an EC certificate on 13 November giving the date that it was contacted by the Claimant as 30 September.

All the complaints with which we are concerned were brought outside the applicable primary time limit. There was initially a dispute as to whether the Claimant's dismissal occurred on 29 June, when he was telephoned by Mr King, or only when he received the letter of 4 July, i.e. on 6 July. The Employment Judge decided that the dismissal took place on 29 June, and that is now common ground before us. On that basis the primary time limit expired on 29 September. It follows that no ACAS extension could operate, because the primary time limit expired the day before the contact date as specified in the EC certificate, and the extension only operates on a period which is still live.

A preliminary hearing was directed in order to decide the limitation issue in respect of all or any of the claims. The hearing took place before Employment Judge Goraj in the Exeter Employment Tribunal on 25 and 26 June 2018. The Claimant was represented by Mr Anthony Korn of counsel and the Appellant by Mr Michael Budworth of

The Judge gave her reasons on the section 111/article 7 aspect of the issue at paragraph 49 of her Reasons in eleven numbered sub-paragraphs, which read as follows:

Setting out a long list of factors in that way is not perhaps the ideal way of explaining the reasons for a decision to extend time. Nevertheless, it is clear that the gist of the Judge's reasoning was that it was reasonable for the Claimant to delegate matters to his brother, having regard to his dyslexia; that he had failed effectively to communicate to his brother the fact that he had been told in the conversation on 29 June that he was being dismissed with immediate effect; that that failure was reasonable because of his difficulties in processing information when under stress, and also because he was told, both at the original disciplinary hearing and in the conversation on 29 June, that he would be receiving a formal letter; and that in the absence of that information it was reasonable for his brother to treat the dismissal as being effected by the letter notwithstanding the reference in it to dismissal being effective as from 29 June.

As regards the question whether it was just and equitable to extend time as regards the disability discrimination claim, the Judge said:

Without intending any disrespect to Judge Eady, I will not at this point summarise her reasoning, since the focus in a case like this must be on the reasoning of the Employment Tribunal. Mr Budworth, who made his submissions clearly and succinctly, advanced three grounds of appeal, which I take in turn.

The first challenges the Judge's finding on the reasonable practicability question. As developed in his oral submissions, Mr Budworth’s essential point was that it was not reasonable for the Claimant – or, more realistically, his brother – to read the letter of 4 July as the letter which effected the dismissal and therefore to proceed on the basis that his effective date of termination was 6 July. The terms of the letter were on any reasonable view at least ambiguous. He emphasised in particular the clear statement in the letter that dismissal took effect from 29 June and the reference to a conversation on that date. He submitted that that should at the very least have put Michael Brophy on enquiry that the dismissal might have occurred earlier, and he could and should accordingly have sought advice in order to resolve that question. There was every opportunity to do so, since he in due course, as we have seen, took advice on the substance of the claim from a barrister friend. Mr Budworth reminded us that a mistake about when the time limit applies is unreasonable if the claimant or his adviser has not made such enquiries as they should reasonably have made. He characterised

I am afraid I cannot accept that the Judge made any error of law here. The Claimant's mistake was not a mistake of law of the kind with which this court was concerned in Biggs, and the question whether it was a reasonable mistake was one for the factual assessment of the Employment Tribunal applying the liberal approach endorsed in the authorities. I agree with Judge Eady in the EAT that the Judge's assessment was one which was entirely open to her in the particular circumstances of this case. It was reasonable for the Claimant and his brother to take the view that his formal dismissal only took effect when he received a letter communicating it. That would be a natural understanding for lay people, reinforced by the fact that the Claimant had previously been told that he would be receiving such a letter. Of course the reference in the letter to dismissal taking effect from 29 June did muddy the waters, but it did not do so to a point where the Judge was bound to find that it was unreasonable of the Claimant and his brother not to have sought further advice.

I turn to the second ground, which is (to paraphrase) that if, which was the basis of the Judge's finding on the first ground, the Claimant was mistaken as to the date of termination, it could not be reasonable for her to extend time by more than the period necessary to accord with his mistaken view – that is, to three months after 6 July. That criticism did not feature in the Appellant's grounds of appeal to the EAT, and it was not raised by Mr Budworth in his oral submissions there. It was in fact raised by Judge Eady herself, who summarised the point in her judgment, where she said:

Although this criticism of the Judge's reasoning is now raised in the grounds of appeal to this court, I do not believe that we can or should entertain it any more than the EAT could. It is a new point and one which in principle could not be dealt with without the appropriate findings of fact.

Although that is the strict formal position, I believe that I ought to add, notwithstanding the absence of any such findings by the Judge, that the overwhelming likelihood must be that the reason why Michael Brophy did not present the claim on or before 6 October was that he thought that he had submitted the form to ACAS timeously and was entitled to the early conciliation extension. Of course, if the effective date of termination had been 6 July, that belief would have been correct. It follows that the reasonableness of the delay between 6 October and 5 December would for all practical purposes depend on the reasonableness of his initial mistake about the date of dismissal. (I would add, though this is, I accept, purely speculative, that that is why it did not occur to Mr Budworth to argue it as a separate point in the Employment Tribunal.) That being so, our decision on the first ground is for all practical purposes determinative of this ground too, even if it was available to be taken. I thus

I should also record that I am in some doubt whether raising the point for the first time at the merits hearing would be open to the Appellant even if it were otherwise potentially good. Judge Eady evidently thought that it would have to be considered if raised because it was "a jurisdictional question". I am far from sure that that is the correct approach in a case of this kind, but I need not pursue the point further in view of the fact that I think the point is bad anyway for the reason given.

Finally, ground 3 challenged the Judge's decision on the “just and equitable” extension under section 123(1). Mr Budworth's submission was that at paragraph 52 of her reasons she had wrongly treated the absence of prejudice as the only and determinative question, whereas it was in fact only one element in the necessary overall assessment of justice and equity.

However, Mr Budworth accepted when it was put to him that it is clear from both the preceding and the following paragraph of her Reasons that the Judge had in fact taken into account also her previous findings on the section 111/article 7 extension, which were in short that the Claimant had missed the primary time limit because of a reasonable mistake and had brought the claim within a reasonable time thereafter. He acknowledged that if we were to uphold that finding, as I have made it clear I would, then paragraph 52 was unobjectionable: the Judge only dealt expressly with prejudice because that was the only remaining factor. He was plainly right to make that concession, the effect of which is that the outcome of ground 3 depends on the outcome of ground 1.

I would for those reasons dismiss this appeal. I would only add that this case is a good example of why it is unsatisfactory that the second appeals test, which applies to almost all other categories of appeal to this court and under which a second appeal will only be given permission if it raises an important point of principle or practice or there is some other compelling reason, does not apply to appeals from the Employment Appeal Tribunal.

LORD JUSTICE DAVID RICHARDS: I agree, and I would particularly endorse my Lord's comments on the lack of a second appeals test in relation to appeals from the Employment Appeal Tribunal.