Appeal No.EAT/0663/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 2003

Before
HIS HONOUR JUDGE J MCMULLEN QC
MR T HAYWOOD
MR D A C LAMBERT

ENVIRONMENT AGENCY	APPELLANT

MR ANDREW MORISSE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBERT THOMAS
(Solicitor)
Instructed by:
Messrs Eversheds Solicitors
Fitzalan House
Fitzalan Road
Cardiff CF24 0EE	
For the First Respondent

Second Respondent Dismissed from Proceedings	MR ANDREW MORISSE
(the Appellant in Person)

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about the time limit for making a claim of unlawful deductions from pay.  We will continue to refer to the parties as Applicant and Respondent.

Introduction

2	It is an appeal by the Respondent in those proceedings against the decision of an Employment Tribunal sitting at Leeds, Chairman Mr C T Grazin dissenting, Mr T Brogan and Mr N Singh, promulgated with Extended Reasons on 28 February 2002.  The Applicant represented himself.  At the time there were two respondents represented respectively by Counsel and solicitor.  

3	The Applicant claimed that the Respondent had made an unlawful deduction from his pay.  The Respondent contended that the Originating Application had been submitted out of time and denied liability in any event.

4	The essential issue before the Employment Tribunal was to determine the issue of jurisdiction relating to the presentation of the claim within the relevant time period.  The Tribunal decided, by a majority, that it was not reasonably practicable for the complaint to have been presented within time and that it was presented within such period thereafter as was reasonable.

5	The Respondent appeals against that finding on grounds set out in a Notice of Appeal and in a Skeleton Argument and oral argument advanced today by Mr Thomas, solicitor for the Respondent.  The essential grounds of the appeal are that the majority erred in law in failing to apply the correct legal test.

6	The Tribunal, having determined that it had jurisdiction to hear the case, then went on to hear the substantive issue and determined the case in the Applicant’s favour, awarding him £1,172.81 as he had sought.  That decision was promulgated on 25 June 2002.  There is no appeal.  The decision, of course, is subject to our upholding the decision on the preliminary point.  For that reason no money has been paid pursuant to that order.

The Facts

7	The Applicant was employed by the Respondent as an ecologist.  During 2001 the United Kingdom suffered a very serious outbreak of foot and mouth disease.  The task of dealing with it was given to the Ministry of Agriculture, Fisheries and Food (MAFF).  That has subsequently become DEFRA.  MAFF did not employ sufficient staff to deal with so serious an outbreak and staff were seconded from various other departments and government agencies.  The Respondent is such an agency.  It is a body corporate in its own right, established under the Environment Act 1995.

8	The Applicant volunteered to help during the crisis.  He had previously helped out during the severe floods of 2000.  Additional payments were made at that time to people who volunteered but in the Applicant’s case it took 7 months for his payments to be made and required him to take proceedings in the Employment Tribunal.

9	The second time around the Applicant claimed additional payments, as the Tribunal has now found to be his due.  The question is – did the Tribunal make the correct decision in law when it decided that it was not reasonably practicable for the Applicant to submit his claim within time?

10	There is a close relationship between the Respondent and MAFF (or DEFRA).  The outbreak of foot and mouth disease took place in early 2001 and the Applicant started working for MAFF on secondment on 17 March until 9 June 2001.

11	He was concerned about payments which would be made on his secondment and there was a sequence of correspondence.  The Applicant had asked the relevant officer of MAFF for the additional payments on 22 June 2001, that is, shortly after the secondment ceased.

12	The Applicant received legal advice at some stage between June and October 2001, in order to progress the claim for unlawful deductions but he was unable to secure the support of a solicitor on a ‘no win, no fee’ basis because the money involved was so small.

13	The Tribunal decided that the relevant date for the purposes of the starting of time was 15 August 2001.  That date was by no means easy to ascertain and took several hours of evidence before the Tribunal.  The Applicant submits, correctly, that it was not obvious.  There is no appeal against that finding and so that is the date upon which the clock started to run.

14	On 4 October 2001 the Applicant again wrote to MAFF, this time renamed as DEFRA, threatening legal proceedings if his claim were not met by 31 October 2001.  During October and November 2001 there was further correspondence which does not reject the Applicant’s claim but, on the contrary, indicates that the matter is still being looked into.
15	It is common ground that the last date for submitting an Originating Application was 14 November 2001.  On 18 November the Applicant sent a completed claim form for his payments and on 22 November 2002 his claim was presented to the Leeds Employment Tribunal.  Thus it was 8 days late.

The Legislation

16	An employee has a right not to have unlawful deductions made from his or her wages, pursuant to Part II of the Employment Rights Act 1996.  The right is provided by section 13.  The right to claim to an Employment Tribunal is provided by section 23(2), which sets a time limit of 3 months, in practice 3 months less a day, for the submission of a claim, but section 23 also provides:

23	(4)	“Where the [Employment Tribunal] is satisfied that it was not reasonably practicable for a complaint…to be presented before the end of the relevant period of three months, the Tribunal may consider the complaint it if it is presented within such further period as the Tribunal considers reasonable.”

17	The approach to that statutory limitation period has been well-travelled and it is important to note that the legislation is in similar terms to that applying to claims of unfair dismissal.  The leading authorities are Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 and Walls Meat Company Ltd v Khan [1979] ICR 52 CA.

18	We hold that those authorities apply to the interpretation of section 23 (4) of the Employment Rights Act 1996.  In Palmer the words “reasonably practicable” were interpreted by the Court of Appeal (May and Dunn LJJ at paragraph 34) to mean

“somewhere between reasonable on the one hand and reasonably capable physically of being done on the other…The best approach is to read “practicable” as the equivalent of “feasible” and to ask “was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant three month?””
19	In Walls Meat the Court of Appeal considered what might be reasonably practicable and indicated that the Applicant in such a case would be entitled to succeed if he or she could show some mental or physical impairment which prevented them from presenting the Originating Application within the relevant period.

20	It will also be noted that in Palmer the Court of Appeal (at paragraph 32) rejected authorities that time would not begin to run where an internal appeal procedure or disciplinary procedure was still extant.  In other words, Applicants should not wait to exhaust internal machinery before presenting a claim to an Employment Tribunal.

21	The law relating to counting time in a claim under Part II, is set out in Taylorplan Services Ltd v Jackson and Others [1996] IRLR 184, and it is common ground in this case that time runs from 15 August 2001.

The Employment Tribunal’s reasoning

22	The Employment Tribunal reached unanimous decisions on a number of procedural matters before it came to decide whether or not the claim was in time.  The Tribunal was plainly aware of the law since the Chairman set out, without citing authority, the essential reasoning of Palmer and Wall’s Meat (above).  He felt that there was no mental or physical impairment preventing the Applicant from putting forward his claim and that the test of feasibility should be applied.  In doing so he held that it was feasible for the Applicant to present the claim.  The Applicant had had legal advice and was aware from his previous legal proceedings of Employment Tribunal procedure in a general way.  On the other hand, the lay members felt that the Applicant could not reasonably practicably present his claim.

23	The Tribunal appears to have been influenced by two matters.  First, the majority found that the Applicant was not at fault in any way.  That appears to be a direct reference to Palmer paragraph 35, where the existence of fault is a criterion. Besides, as Mr Thomas accepted, the approach of the Tribunal to fault in this case appears to have been linked to the question of feasibility.  The majority was correct to hold that the Applicant is not in any way at fault as the convoluted exchange of correspondence between him and MAFF/DEFRA and the Respondent shows.  No error of law arises in the majority considering that criterion.

24	Secondly, the majority decided that the Ministry and the Respondent did not deal properly with the Applicant’s claim and it was entirely proper that he should delay in submitting his complaint to the Tribunal against the Respondent’s failure to handle his matter properly.  At first sight that might appear to be at odds with the Palmer decision about internal procedures.  However, on closer examination of the correspondence and having heard submissions from the Applicant, it is tolerably clear to us that the majority was not saying the Applicant should always be excused from putting his claim in, but was simply saying what was feasible at a time when there was confusion as to who was dealing with it.

25	That is a matter of fact for the Tribunal to weigh. We see no error in deciding that it was reasonable for the Applicant to hold back on his claim since we interpret that to mean that it was not feasible for him to put in the claim while he was being given what we would call the run-around by Respondent and the Ministry. The majority must have made that decision knowing that the Respondent had not taken a time point against him when it settled his earlier Employment Tribunal proceedings, presented out of time. 

26	It is always tempting when there is a split decision to launch an appeal on the basis of that phenomenon.  It must however be remembered that often a decision on the facts, such as what is reasonable, practicable, feasible, can be strengthened when there is displayed a disagreement between those hearing the facts.  For, as Morison P said in Chief Constable of The Thames Valley Police v Kellaway [2000] IRLR 170, giving the judgment of the EAT, in an appeal against a majority decision of lay members over the Chairman:

“In many ways the fact that the majority accepted some but not all of the Applicant’s evidence and some but not all of her complaints, shows they must have carried out a careful analysis of all the evidence before upholding four of the eight complaints.  Further, the fact that this was a split decision is a good indicator of the care which must have been taken by all three members.  The fact that the decision was split does not lead to the conclusion that it is somehow especially suspect, rather the contrary.  The split in the Tribunal is no doubt explicable on the basis that some of the evidence appeared credible to two members but which the Chairman, for good reasons of his own, was unpersuaded by.”

27	In our judgment the correct direction of law has been given, as can be seen from the Chairman’s recital of his own reasoning at paragraph 33.  It must be assumed that he explained the law to his colleagues. The application of that law to the essentially factual issues this jurisdiction point raised, resulted in two different opinions being formed. 

28	We cannot see an error of law in the approach of the majority and the appeal is dismissed.