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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Joshi v Manchester City Council [2008] UKEAT 0235_07_3001 (30 January 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0235_07_3001.html Cite as: [2008] UKEAT 0235_07_3001, [2008] UKEAT 235_7_3001 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
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APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ANDREW BYLES (of Counsel) Instructed by: North Manchester Law Centre Harperhey District Centre Manchester M9 4DA |
For the Respondent | MR CHRISTOPHER TAFT (of Counsel) Instructed by: Andrew McCabe Solicitor Manchester City Council Legal Services PO Box 532 Town Hall Albert Square Manchester M60 2LA |
SUMMARY
JURISDICTIONAL POINTS
Extension of time: reasonably practicable
Extension of time: just and equitable
2002 Act and pre-action requirements
The practitioner's rule of thumb, that the time for presentation of a claim is three months less a day after the relevant event, means that when an extension of time is given pursuant to the 2004 Regulations, the time is six months less a day.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
" … an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal – (a) before the end of the period of three months beginning with the effective date of termination."
Section 111 (3) gives a tribunal discretion to extend time if it was not reasonably practicable to present the claim within the three months.
"(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and –
…
(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.
…
(3) The circumstances referred to in paragraph 1(b) are that the employee presents a complaint to the tribunal –
…
(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 [of the 2002 Act] in relation to the grievance within the normal time limit."
The facts
"The Claimant explained to me in evidence why she delayed until 21 August 2006 before presenting her claim to the Tribunal. I regret that I found her evidence far from satisfactory. Her oral testimony directly contradicted her witness statement. She told me, and on balance I accept, that she was not aware of any Tribunal time limit until she spoke to a friend on 18 August 2006 who advised her that the time limit was three months (not six months as she asserted in her witness statement). She then spoke to her solicitor, Mr Khan over the weekend (I am satisfied that, as she told me on oath, the conversation took place then, not before, as her witness statement implied). He appears to have advised her that the grievance procedure was relevant to the time limit, but I found the Claimant's evidence unreliable as to exactly what he said. She could not tell me reliably whether Mr Khan had explained time limits to her previously. She then attended the Tribunal on 21 August 2006 to present the claim. She did not seek to explain her failure to present the claim until 21 August 2006 in any other terms than that she did not know there was any time limit at all until 18 August 2006."
He concluded that the time limit expired on 20 August 2006
"I am satisfied that the claimant could have presented her claim by 20 August 2006. It was reasonably practicable for her to have done so. I do not accept ignorance of the time limit rendered it not reasonably practicable. The claimant had access to legal and Trade Union advice. It is well known that there is a time limit. Indeed, it is well known that there are time limits for most proceedings. The claimant is an educated individual who was clearly able to conduct her affairs between February and August 2006 (she pursued her grievance in this period, and indeed she has not contended she was incapacitated in any way). There is no evidence that she was given wrong advice. She did not wrongly believe she had until 21 August 2006 to present the claim. The advice she had on 18 August 2006 was such that she was already out of time. She did not delay the claim pending her grievance appeal. She simply did not know there was a time limit. This in my judgment did not render it not reasonably practicable to present the claim in time."
"I recognise that the complaint is only one day out of time, and that there would be no discernible prejudice to the respondent if I allowed it to proceed. But the fact is that it is out of time, there is a time limit which is to be observed, and the claimant has shown no good reason for failing to present the complaint within time. I do not consider it would be appropriate to extend time when the claimant had no good reason at all not to have made the claim in time. I have decided that in all the circumstances it would not be just and equitable to extend the time limit. The Tribunal cannot consider the claim".
In addition he concluded that if he had allowed the claim to proceed, many of the claims would have been out of time and would otherwise have fallen foul of the 2002 grievance procedure regime.
Discussion and conclusions
" My Lords, reference to a "month" in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.
The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month's notice given in a 30 day month is one day shorter than one month's notice given in a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.
This simple general rule which Cockburn C.). in Freeman v. Read (1863) 4 B. & S. 174, 184 described as being "in accordance with common usage . . . and with the sense of mankind," works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on. the 31st of a 31 day month and expiring in a 30 day month or in February, and notices expiring in February and given on the 30th or the 29th (except in leap year) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends upon the last day of the month in which the notice expires."
" 23. Where, under some legislative provision, an act is required to be done within a fixed period of time "beginning with" or "from" a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v. Higgon (1840) 6 M. & W. 49, that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day. Examples of such an "exclusive" construction are found in [citing authorities]…
24. Where, however, the period within which the act is to be done is expressed to be a period beginning with a specified day, then it has been held, with equal consistency over the past 40 years or thereabouts, that the legislature (or the relevant rule making body, as the case may be) has shown a clear intention that the specified day must be included in the period. Examples of an "inclusive" construction are to be found in [citing authorities]… . Salmon L.J. … in Trow v.Ind Coope (West Midlands) Ltd. … observed, at p. 924, that "I cannot … accept that, if words have any meaning, 'beginning with the date of its issue' can be construed to mean the same as 'beginning with the day after the date of its issue.' "
25. The judge held that it was "obvious," from the use of the expression "beginning with the date of the agreement" … that the period of 12 months prescribed by that paragraph included the date of the agreement. In our view he was plainly correct to reach that conclusion. … We can see no basis on which this court could refuse to apply the reasoning which led the majority (Harman and Salmon L.JJ.) in Trow v. Ind Coope (West Midlands) Ltd [1967] 2 Q.B. 899 to hold that there is a real difference between a direction that a period of time is to begin with a specified date and a direction that a period is to be reckoned from that date."
"In the light of the decision of the Court of Appeal in Trow v Ind Coope (West Midlands) Ltd. [1967] 2 Q.B. 899 it is clear that the period beginning with the effective date of termination includes that date as part of the period of four weeks".
That was the original limitation period before it was extended in 1975 to the present three months; the principle remains.
"The EAT held that the statutory extension of time under Regulation 15(1) … means three months and not three months less a day."
The claimant there was dismissed on 20 June 2005, the "normal time limit" expired on 19 September 2005 and the claim was presented on 20 December 2005. Judge Birtles upheld the Employment Judge's conclusion that the claim was in time, being presented on the last day of the extended three-month period. In doing so he distinguished Pacitti v O'Brien on the basis that it was concerned with Section 108(1) and 211(1) of the 1996 Act (continuous employment) and there was a difference in the language of Regulation 15(1) of the 2004 Regulations.
"The appeal tribunal is not bound by its previous decisions although they will only be departed from in exceptional circumstances, or where there are previous inconsistent decisions."
Discretion to extend time