London Borough of Wandsworth v Covent Garden Market Authority

The London Borough of Wandsworth (‘Wandsworth’) appeals from the decision of Employment Judge Taylor on 15^th November 2010 granting the Covent Garden Market Authority’s (‘CGMA’) application for an extension of time in which to appeal against the issuing of 10 Improvement Notices served on them by Wandsworth pursuant to the Health and Safety at Work etc Act 1974 (‘HSWA’) Section 21. The Appeal to this Court on a point of law is brought pursuant to the Tribunals and Inquiries Act 1992 Section 11(1) and Schedule I to that Act. Mr Atkins on behalf of Wandsworth contended that the decision of Employment Judge Taylor was reached in error of law and was perverse.

The Appeal by CGMA to the Employment Tribunal was brought under HSWA Section 24(1). Pursuant to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (‘the ET Regulations’) Schedule 4 paragraph 4(1), subject to paragraph (2), the Notice of Appeal must be sent to the Employment Tribunal office within 21 days from the date of service on the appellant of the notice appealed against. Schedule 4 paragraph 4(2) provides:

“(2)

A tribunal may extend the time mentioned above where it is satisfied, on an application made in writing to the Secretary either before or after the expiration of that time, that it is or was not reasonably practicable for an appeal to be brought within that time.”

Wandsworth served the Improvement Notices on CGMA on 14^th September 2010. The time for sending the Notices of Appeal to the Employment Tribunal expired on 5^th October 2010. The Notices of Appeal were sent on 14^th October 2010. They were therefore sent 9 days out of time.

Employment Judge Taylor gave reasons for her decision that it was not reasonably practicable for CGMA to issue the appeal notices in time and for exercising her discretion to extend time orally at the conclusion of the hearing on 15^th November 2010. Counsel present at the hearing, Mike Atkins for Wandsworth who also appeared in the hearing before me, and Adam Ohringer, who appeared for CGMA before the Employment Judge but not on appeal, agreed a note of the judgment. The Employment Judge expressed her reasons succinctly and I set them out in full. Employment Judge Taylor held:

“Reasonably practicable means reasonably capable of being done. It is clear that CGMA were capable of submitting the appeal within the time limit provided by rule 4. The difficulty I have is whether the Claimant’s concern that they were ignorant of relevant facts and their decision to give precedence to matters that might arise in the criminal proceedings is sufficient to render it not reasonably practicable to submit the appeals in time.

I take a common-sense view. The fact that the improvement notices could be used in evidence in criminal proceedings was a reason for CGMA to proceed with some caution. I find that the fact that there was a pending PACE interview means that it was not reasonably practicable for CGMA to issue [the appeal notices] in time. I take into account that CGMA did not delay unduly after the conclusion of the interview and the fact that the appeals were presented within a short period after the interview. I therefore grant the Claimant’s extension of time. The case will proceed to a hearing and be determined on its merits.”

Counsel for CGMA, Oliver Campbell, has with the addition of a reference to a letter dated 13^th September 2010 from the Council to CGMA helpfully agreed the relevant background facts set out in the skeleton argument prepared by Mike Atkins. Rather than paraphrase the text, the summary background facts are taken from his skeleton argument:

“The parties

5.

The Respondent is the body created by statute to operate the New Covent Garden Market. That Market it situated in South Lambeth and is open overnight from the early hours of the morning until mid-morning. The Appellant has responsibility for Environmental Services, Health and Safety and Licencing in the part of London in which the Market is located.

The improvement notices and the PACE interview

6.

During 2009 and 2010 there were 4 accidents at the Market in which pedestrians were injured by forklift trucks. The first accident was on 03.08.09. There were further accidents on 17.03.10, 11.06.10 and 06.08.10. The Appellant had serious concerns about the management of traffic at the Market, including in particular the failure adequately to separate pedestrian and vehicle traffic.

7.

The Appellant commenced an investigation into the accident that occurred [on] 03.08.09. On 03.08.10 the Appellant invited the Respondent to attend a Police and Criminal Evidence Act 1984 (PACE) interview. The Appellant proposed that the interview should take place on 29.09.10. On 08.09.10 the Respondent’s solicitors asked for the interview to be put back to a date after 04.10.10 because the partner dealing with the case was abroad. The Appellant did not object, and on 17.09.10 the Respondent agreed to attend interview on 11.10.10.

8.

On 14.09.10, the Appellant served the Respondent with 10 improvement notices relating to traffic management at the site generally. The Respondent accepts that the time limit for appealing against the improvement notices expired on 05.10.10.

9.

The Respondent did not send notices of appeal against the improvement notices before the expiry of the time limit. The Respondent did not apply for an extension of time for sending the notices of appeal before the time limit expired.”

Mr Campbell drew attention to the fact that the earliest of the three interview dates offered by Wandsworth in response to CGMA’s solicitor’s request for a later date than that originally proposed by the Council was 11^th October 2010. The letter of 13^th September 2010 offering the alternative dates made no mention of the Council’s intention to serve the Improvement Notices on the following day.

Since a perversity challenge to the decision of the Employment Judge depends upon whether a reasonable Employment Judge properly directing herself on the law could reach the conclusion she did on the evidence before her I will set out the material evidence relied upon by the parties in addition to that set out above.

A witness statement of Joanne Breare, Facilities Manager of CGMA, was relied upon by CGMA before the Employment Judge as were the Improvement Notices, correspondence relating to them and to a PACE interview of CGMA to be held by Wandsworth. Mr Campbell informed me that the reasons advanced to the Employment Judge as to why it was not reasonably practicable to issue the appeals from the Improvement Notices by 5^th October 2010 were set out in the witness statement of Ms Breare and in a letter dated 14^th October 2010 from CGMA’s solicitors to Wandsworth.

By letter dated 3^rd August 2010 the Principal Environmental Services Officer of Wandsworth, Zoë Cooke invited the Chief Executive of CGMA to attend a PACE interview on 29^th September 2010 regarding the workplace incident on that day. She wrote:

“Re: Police and Criminal Evidence Interview

Workplace incident 3^rd August 2009

Outside S. Thorogood and Sons (Covent Garden) Ltd, Units D50-52, Covent Garden Market, Nine Elms Lane, London

Health and Safety at Work etc. Act 1974

I hereby invite you to attend an interview under caution in relation to offences under [HSWA] at the premises known as New Covent Garden Market, relating to a workplace incident involving a forklift truck driver working for S. Thorogood & Sons (Covent Garden) Ltd and a member of the public.

…

The interview will provide me with an opportunity to ask you questions about the conduct of your business, and the matters surrounding the alleged offences, in particular the management of workplace transport at the premises.

I will need to interview a representative who is able to speak on behalf of The Covent Garden Market Authority. Please can you confirm in writing a representative from your company who you are satisfied can properly address issues concerning health and safety, risk assessments and safe methods of working and who will be attending the interview.

This interview will be under the provisions of the Police and Criminal Evidence Act 1984 and will be recorded. You are advised to obtain legal advice and are entitled to have legal representation at any interview.”

By 8^th September 2010 CGMA had instructed solicitors who wrote on that day to Wandsworth that they have been advising CGMA on the ‘PACE Interview – Workplace Incident 03.08.09’. The writer informed Wandsworth that the partner dealing with the matter and who had been advising CGMA would be away on 29^th September 2010, the date proposed for the interview, and asked that it be re-scheduled at the earliest opportunity after 4^th October 2010. By letter dated 13^th September 2010 Wandsworth gave three possible dates for the re-scheduled interview, the earliest of which was 11^th October 2010. By letter dated 14^th September 2010 10 Improvement Notices were served on CGMA.

The letter of 14^th September 2010 from the Principal Environmental Services Officer of Wandsworth which enclosed the 10 Improvement Notices referred to a current investigation of a number of work place incidents which had occurred in areas under the control of CGMA and which resulted in some serious injuries to market workers and members of the public. Zoë Cooke categorised the Improvement Notices as follows:

By letter dated 17^th September 2010 solicitors for CGMA confirmed their choice of 11^th October 2010 as the date for the re-scheduled interview.

On 27^th September 2010 Ms Breare informed Wandsworth that she was ‘currently working through the Improvement Notices’.

In paragraph 7 of her statement of 4^th November 2010 made for the application for an extension of time for service of the Notices of Appeal from the Improvement Notices Ms Breare wrote:

“I feel it worth mentioning that the PACE interview related to a workplace incident from the previous August 2009….”

Time for service of the Notices of Appeal from the Improvement Notices expired on 5^th October 2010. Notices of Appeal settled by CGMA’s solicitors were lodged with the Employment Tribunal on 15^th October 2010. The grounds of appeal were in common form and stated:

“The Inspector failed to discuss the Improvement Notice or to seek to resolve points of difference before serving the Notice (contrary to Health and Safety Executive own guidelines).

Further we refute any contravention of statutory provisions and assert that the Inspector’s reasons for contending contraventions are without foundation.”

The Notices of Appeal were enclosed under cover of a letter dated 14^th October 2010 to the Employment Tribunal applying for an extension of time to appeal.

By their letter of 14^th October 2010 solicitors for CGMA contended that it was not reasonably practicable for the appeal to be brought in time for the reasons there set out. It was said that the Improvement Notices were directly relevant to and arose from the incident about which a representative of CGMA was interviewed on 11^th October 2010. The letter continued:

“CGMA took the view that not only should the PACE interview take precedence (given a possible criminal prosecution) over the past couple of weeks in terms of preparation, but it was also felt that it was vital to wait until the 11^th and the conclusion of the interview to see what, if any, further assertions, evidence or material was presented by Ms Cooke, on behalf of the Environmental Services department on that date.

Revelation of further contentions or documents provided by the Environmental Services department at interview would have been directly material to the approach CGMA took in relation to the Notices, given they arise out of the same facts, and given the Notices could potentially be used as evidence in any future criminal prosecution of CGMA under the Health and Safety legislation. CGMA therefore needed to be in possession of the [sic] full facts as could be possible in relation to the criminal matter, before considering its appeal options in relation to The Notices.

It is for these reasons that CGMA respectfully requests the Tribunal accept service of the enclosed notice of appeals outside of the statutory time-limit.”

In her statement for the hearing before the Employment Judge, Ms Breare gave as the reasons why CGMA did not lodge their notices of appeal in time those which were set out in their solicitor’s letter of 14^th October 2010.

Mr Atkins submitted that the decision of the Employment Judge that it was not reasonably practicable for CGMA to lodge their appeals in time was perverse. He recognised that an appellant seeking to establish perversity faces a high hurdle. He also acknowledged that whether or not it was reasonably practicable to serve a notice of appeal in time is a question of fact for the Employment Tribunal.

Mr Atkins made submissions on:

Although decided in the context of employment law rather than Health and Safety legislation, Mr Atkins, as did Mr Campbell, relied upon the judgment of the Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] 1 WLR 1129 as providing guidance on the meaning of ‘reasonably practicable’. The phrase is not limited to that which is reasonably capable physically of being done. However it would be wrong to construe the phrase as meaning ‘reasonable’. Applying the dicta of May LJ in Palmer at page 1141D to F, Mr Atkins contended that perhaps the best approach is to ask whether it was ‘reasonably feasible’ to send the notices of appeal in on time.

Mr Atkins relied upon several authorities in which time limits for presenting claims to Employment Tribunals have been strictly enforced. In Beasley v National Grid Electricity Transmissions UKEAT/0626/06/DM 6^th August 2007, the claim was lodged 88 seconds late. The Employment Tribunal held that it had no jurisdiction to consider Mr Beasley’s complaint of unfair dismissal. Silber J dismissing the appeal held at paragraph 29 that the law, which permits relaxation of the limitation period only when it is not reasonably practicable to present a claim in time, works harshly against those who are a few minutes late and extremely favourably in favour of respondent employers who are excused from defending their actions by delay which has caused them no prejudice. The Court of Appeal refused Mr Beasley’s application for permission to appeal ([2008] EWCA Civ 742).

On the basis of these authorities Mr Atkins submitted that prejudice or absence of it is not relevant to the decision whether it was reasonably practicable to lodge the notices of appeal in time. Nor are the merits of the appeal relevant.

Mr Atkins submitted that on the facts before the Employment Judge it was clear that it was CGMA’s choice not to lodge their notices of appeal until 14^th October 2010. They knew of their right to appeal, they had expert legal advice and, as the Employment Judge found, they were capable of submitting the appeals within the time limit.

It was submitted that the decision that it was not reasonably practicable to serve notices of appeal in time because there was a pending PACE interview was perverse. Mr Atkins contended that lodging a Notice of Appeal could not prejudice CGMA in any criminal proceedings. Rather it was consistent with an assertion that they were not in breach of the HSWA. Further, the PACE interview was for CGMA to be questioned about a particular incident on 3^rd August 2009 although they would be asked about matters surrounding the alleged offence. Of the 10 Improvement Notices, 8 had nothing to do with the scene of the accident about which CGMA was to be interviewed. 4 Improvement Notices were issued for failing to allow pedestrians and vehicles to circulate safely in certain cut throughs and 4 for failing to provide sufficient lighting in those cut throughs.

Mr Atkins submitted that it was not correct to suggest that CGMA could reasonably have expected to obtain information at the meeting on 11^th October 2010 which it was necessary for them to obtain before launching appeals against the Improvement Notices. Nor was it reasonable to consider that it was necessary to await the outcome of that meeting to decide whether appeals should be pursued. The Council had never suggested that the interview was to be about Improvement Notices.

It was contended that Schultz v Esso Petroleum Co Ltd [1999] 3 All ER 338 relied upon by Mr Campbell was not relevant to the issues in this appeal. In Schultz the Court of Appeal held that the Employment Tribunal had erred in failing to take into account in judging the reasonable practicability of lodging a claim in time the fact that the claimant was hoping to avoid litigation by pursuing alternative remedies. Mr Atkins contended that in this case there was no question of a possibility or likelihood of achieving an outcome which would have obviated the need to appeal to an Employment Tribunal. CGMA were not issuing proceedings, they were appealing against Improvement Notices.

The meeting of 11^th October 2010 was for CGMA to be interviewed about an alleged criminal offence. It was not to be a general discussion about the Improvement Notices. If CGMA wished to consider whether appeals were necessary after the interview had been held they could have lodged the appeals in time and, if necessary, applied to adjourn them pending any such decision. Mr Atkins pointed out that the Notices of Appeal served after the interview on 11^th October 2010 were couched in general terms. It was not suggested by CGMA that there was anything in the Notices of Appeal which could not have been said before 11^th October 2010.

CGMA had been receiving legal advice for some time before the expiry of the time limit for lodging the Notices of Appeal. If it was not reasonably practicable to serve Notices of Appeal before the interview on 11^th October 2010, application for an extension of time for serving the Notices could have been made before the expiry of the time for doing so.

Mr Campbell for CGMA contended that the judgment of the Employment Judge should be upheld for four reasons. It was reasonable for CGMA to delay before serving Notices of Appeal until after the PACE interview on 11^th October 2010. The interview could have given CGMA a better understanding of Wandsworth’s position. Secondly the interview would have given CGMA an opportunity to explain their position. Thirdly it was reasonable to give the PACE interview priority over the appeals. Fourthly the interview and discussion which would no doubt take place may have obviated the necessity to appeal. Mr Campbell submitted that Mr Atkins went too far in saying that prejudice is irrelevant in deciding whether it is reasonably practicable to lodge an appeal against an Improvement Notice in time. The Employment Judge could have regard to the overriding objective of the ET Regulations and take lack of prejudice to Wandsworth into account.

Mr Campbell contended that an appellate court should not interfere with the decision of the Employment Judge which was one of fact. She took a common sense decision. The Employment Judge did not err in referring to CGMA’s concern that they were ignorant of relevant facts before the meeting of 11^th October 2010. Mr Campbell submitted that it was necessary for CGMA to have information from the interview before appealing. Applying Schultz exchange of information at the interview may have obviated the need for an appeal. Having regard to the overriding objective, the absence of prejudice caused to Wandsworth by late service of the Notices of Appeal could be taken into account.

It is well established that an appellant seeking to challenge a decision of an Employment Tribunal on grounds of perversity faces a high hurdle. They have to show that no reasonable Employment Judge or Employment Tribunal properly directing themselves on the law and taking into account the relevant facts could have come to the decision under challenge.

Although in a different context and contained in the Employment Tribunal Regulations rather than in the relevant statute, in my judgment there is no reason to apply a different interpretation of ‘reasonably practicable’ in the ET Regulations Schedule 4(1) from that in the unfair dismissal legislation considered by the Court of Appeal in Palmer v Southend-on-Sea Borough Council. The context in which reasonable practicability is to be considered is similar: it is the criterion which must be satisfied if the time limit for a claim or an appeal to an Employment Tribunal may be relaxed. The judicial body which is charged with applying the test of whether presentation of the claim form or notice of appeal within time was not reasonably practicable is the same in both cases.

It is clear from the judgment of the court in Palmer given by May LJ that whether presentation of a claim is ‘reasonably practicable’ is pre-eminently an issue of fact for the Employment Tribunal. May LJ held at page 1141 E-F:

“In the context in which the words are used in the Employment Protection (Consolidation) Act 1978, however ineptly as we think, they mean something between these two. Perhaps to read the word ‘practicable’ as the equivalent of ‘feasible’ as Sir John Brightman did in Singh’s case [1973] ICR 437 and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ – is the best approach to the application of the relevant subsection.”

Lord Phillips then MR endorsed this established approach in Marks & Spencer Plc v Williams-Ryan [2005] ICR 1293 at page 1305 paragraph 43. The words ‘reasonably practicable’ in the unfair dismissal legislation do not mean ‘reasonably capable physically of being done’ or ‘reasonable’ to be done. The Employment Tribunal would no doubt investigate what was the substantial cause of the failure to meet the time limit. Amongst the factors which, depending on the circumstances, an Employment Tribunal may take into account were whether the employee was being advised at any material time and, if so, by whom.

The Employment Judge held that it was clear that CGMA were capable of submitting the appeals within the time limit provided by Rule 4. The reason why she found that it was not reasonably practicable for CGMA to issue the Appeal Notices in time was that there was a pending PACE interview. The Employment Judge did not explain why she reached this decision save to say that

“the fact that the improvement notices could be used in evidence in criminal proceedings was a reason for CGMA to proceed with some caution.”

Wisely this reason was not relied upon by Mr Campbell in resisting the appeal. With respect it is hard to see why appealing against the Improvement Notices could adversely affect CGMA in resisting criminal proceedings. Rather, issuing such notices of appeal could be seen as acting consistently with contesting criminal proceedings. In my judgment no Employment Judge properly directing herself could properly have concluded on those grounds that it was not reasonably practicable to present the Notices of Appeal in time. Although CGMA did not serve a Respondent’s Notice, CGMA seek to uphold the decision of the Employment Judge on the grounds advanced by Mr Campbell which are set out above.

CGMA had legal advice, it was not ignorant of the time limit within which to appeal the Improvement Notices and they did not lack the resources to do so. Proceeding on the basis of accepting the reasons for delay advanced before the Employment Judge: those set out in CGMA’s solicitor’s letter of 14^th October 2010 and in the statement of Joanne Breare, the delay resulted from their choice to give precedence to the PACE interview and to see if relevant material would be learned from it. If, as is apparent, Mr Campbell’s submission that there was considerable overlap between the subject matter of the PACE interview and the Improvement Notices is correct, work done on preparing for the interview could have been used in drafting the Notices of Appeal. There was no evidence before the Employment Judge that work done on the PACE interview inhibited work on the Notices of Appeal. The grounds of appeal were brief and couched in general terms. It was rightly not suggested that time spent on these inhibited work in preparing for the PACE interview.

As was made clear in Wandsworth’s letter to CGMA of 3^rd August 2010 and CGMA’s solicitor’s reply of 8^th September 2010 which was headed

“Covent Garden Market Authority (CGMA) – PACE Interview – Workplace incident 3.8.09”

both parties were well aware that the purpose of the interview was for Wandsworth to question CGMA about a specific incident which took place on 3^rd August 2009. It was not going to be a general discussion about Improvement Notices. Such Notices were not issued until nearly 6 weeks later. Until 14^th September 2010, the date on which the Improvement Notices were served, there would have been no question of giving more attention to the PACE interview than the Improvement Notices or of hoping to find out at the forthcoming PACE interview information relevant to the Improvement Notices.

No evidence was placed before the Employment Judge as to who on behalf of CGMA attended the meeting on 11^th October 2010 and whether and if so what questions they asked of the representatives of Wandsworth. No letters were placed before the Employment Judge setting out any questions CGMA wished to ask Wandsworth at the interview.

In my judgment the decision of the Court of Appeal in Schultz does not provide support for the decision of the Employment Judge. Schultz does not hold that all delay which occurs as a result of the hope of avoiding the issuing of proceedings by pursuing alternative means of redress is to be excused.

In Schultz the Claimant was hoping to avoid litigation by pursuing alternative remedies but had a disabling depression in the latter part of the limitation period. Potter LJ held at page 345 paragraphs d to f:

“…whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aim to be achieved. In a case of this kind the surrounding circumstances will always include whether or not, as here, the claimant was hoping to avoid litigation by pursuing alternative remedies. In that context, the end to be achieved is not so much the immediate issue of proceedings as issue of proceedings with some time to spare before the end of the limitation period. That being so, in assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way focus upon the closing rather than the early stages.”

In this appeal there was no question of pursuit of alternative remedies by CGMA or of their being prevented from lodging an appeal during the limitation period. There was nothing to prevent CGMA from serving Notices of Appeal within the limitation period and thereafter amending the Notices. If further information became available after 11^th October 2010 they could apply to adjourn the hearing of the appeals or withdraw the appeals.

As was made clear in Beasley, absence of prejudice to a Respondent to a claim caused by delay is not to be taken into account in deciding whether it is reasonably practicable to present a claim in time. There is no reason why the overriding objective relied upon by Mr Campbell to relax the application of the time limit for appealing the Improvement Notices in this case should have that effect. As with the time limit for presenting claims for unfair dismissal, that for appealing Improvement Notices is strictly worded. In Beasley Tuckey LJ with whom Mummery LJ and Sir Paul Kennedy agreed observed at paragraph 25 of the similarly worded unfair dismissal limitation period:

“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 [the limitation period for unfair dismissal] 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.”

This is one of those rare cases in which the judgment of the Employment Judge was perverse. Properly directing herself on the material before her, no conclusion could have been reached by the Employment Judge other than to refuse the application by CGMA to extend time for serving Notices of Appeal from the 10 Improvement Notices of 14^th September 2010.

The appeal by Wandsworth is allowed. The decision of the Employment Judge to grant the application by CGMA to extend time in which to serve Notices of Appeal from the Improvement Notices of 14^th September 2010 is set aside and a refusal of the application substituted.

The parties produced submissions in writing on costs with Schedules of costs.

The Employment Judge refused the application for costs made by both parties. There was no appeal from that Order. Accordingly the Order refusing Wandsworth’s application for costs of the hearing before the Employment Judge remains in place.

Neither Mr Atkins nor Mr Campbell have found any express provision or authority dealing with costs of an appeal to the High Court pursuant to Section 11 of the Tribunals and Inquiries Act 1992. Section 51 of the Senior Courts Act 1981 provides:

“(1)

Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in…(b) the High Court…shall be in the discretion of the Court.”

Since there are no other relevant provisions, the costs of this appeal are in the discretion of the Court. In accordance with the general rule in CPR 44.3(2)(a) CGMA is ordered to pay to Wandsworth their costs of this appeal. This amount is to be agreed by the parties.