APPEARANCES
For the Appellant |
MR NATHANIEL CAIDEN (of Counsel) Instructed by: DAC Beachcroft LLP 100 Fetter Lane
London EC4A 1BN
|
For the Respondent |
MR ANDREW BOUSFIELD (of Counsel) Instructed by:
Messrs Hodge Jones & Allen LLP Solicitors 180 North Gower Street London NW1 2NB
|
SUMMARY
JURISDICTIONAL POINTS - Claim in time and effective date of termination
JURISDICTIONAL POINTS - Extension of time: reasonably practicable
The Claimant had instructed her
solicitors
to lodge her ET claims of whistleblowing detriment and unfair dismissal but, to
save
costs, had agreed
she
would complete the formal parts of the form ET1 herself. In
so
doing, the Claimant failed to transcribe the ACAS Early Conciliation ("EC") certificate number correctly (
missing
off the last forward
slash
and final two digits) and her
solicitors
failed to
spot
this error before they
submitted
the claim on the last day of the relevant limitation period. The Claimant'
s
ET claim was duly rejected and the Claimant'
s
solicitors
re-
submitted
the claim - this time with the correct EC number - within a day of receiving the ET'
s
notification of rejection. That, however, was outside the limitation period. Upon considering whether it had jurisdiction to determine the Claimant'
s
claims, the ET held that the claim was initially correctly rejected because it did not contain the right EC number and the re-
submitted
claim was out of time. Applying Adams
v
BT plc [2017] ICR 382, however, that did not necessarily
mean
it had been reasonably practicable for the re-
submitted,
corrected claim to have been presented in time. The Claimant and her
solicitors
had both believed that a properly constituted claim had been presented in time, albeit that belief was
mistaken.
The Claimant'
s
belief arose from her confidence in her
solicitors;
her
solicitors'
belief arose because they had failed to
spot
the error in the EC certificate number. Although the
solicitors
were at fault, that did not necessarily
mean
their conduct was unreasonable.
Seeing
this case as akin to Adams
v
BT, the ET concluded that, on this point, it would have "little difficulty in resolving the issue of reasonable practicability in favour of the Claimant".
So
doing, the ET concluded that the ET1 had been re-
submitted
within a reasonable period once the Claimant and her
solicitors
became aware of the error and that it therefore had jurisdiction to hear the claim. The Respondent appealed.
Held: allowing the appeal in part
The Claimant had believed
she
had lodged a properly constituted claim in time because
she
had confidence in her professional advisers. If those advisers had unreasonably failed to lodge a properly constituted claim in time, however, then the application of the Dedman principle (
see
Dedman
v
British Building and Engineering Appliances Ltd [1973] IRLR 379 CA) would
mean
that the Claimant would not be entitled to
simply
rely on her confidence in what they had done;
she
would be bound by their unreasonable conduct. The question then became whether the Claimant'
s
solicitors
had acted reasonably. The ET found that they were "unquestionably at fault in failing to check the ET1 thoroughly" but did not conclude that this automatically
meant
that their conduct was unreasonable. That was a permissible
view
given the facts of the case; in particular, the Claimant having undertaken to complete the ET1 form herself to
save
expense. That
said,
it could not be assumed that the case was on all fours with Adams, given that the question of the application of the Dedman principle had not been raised in that case. The ET had therefore needed to demonstrate that it had engaged with the question whether the Claimant'
s
solicitors
had acted reasonably. As it was not possible to
see
that it had answered that question, the appeal would be allowed on this basis and this issue remitted to the
same
ET for determination.
HER HONOUR JUDGE EADY QC
Introduction
- This appeal concerns the correct application of the "not reasonably practicable" test relevant to the possible extension of time for the
submission
of a claim under
section
111(2)(b) of the Employment Rights Act 1996 ("ERA").
Specifically,
it relates to the presentation of an ET1 without a full ACAS Early Conciliation ("EC") number, which was rejected on this basis and to the
subsequent
resubmission of the claim out of time.
- In this Judgment, I refer to the parties as the Claimant and Respondent, as below. I am concerned with the Respondent'
s
appeal from a Judgment of the
London
(
East)
Employment Tribunal (Employment Judge Foxwell
sitting
alone on 21 June 2017; "the ET"). Representation below was as now. By its Judgment, the ET ruled that the Claimant'
s
claims - which are of whistleblowing detriments and dismissal as well as for notice and holiday pay - were presented outside the relevant time limit. It further held, however, that it had not been reasonably practicable for the Claimant to present her claims in time and they had been presented within a reasonable time of it being practical to do
so;
the ET therefore accepted jurisdiction.
- The full procedural history of this case before the ET is
somewhat
complicated, as recorded at paragraphs 4 to 7 of the Judgment under appeal. This has led to a
significant
delay in proceedings. The ET1 was presented on 6 October 2015, but the Preliminary Hearing with which I am concerned only took place on 21 June 2017. The appeal itself was initially considered to disclose no proper basis to proceed; Choudhury J
so
ruling under Rule 3(7) of the Employment Appeal Tribunal Rules 1993. After a Hearing, under Rule 3(10), on 12
March
2018, I permitted the appeal to proceed to this Full Hearing. The delays that have occurred - in particular before the ET - are obviously frustrating to the parties; especially
so
for the Claimant, who is understandably concerned that her whistleblowing complaints have yet to be heard.
The Relevant Background and the ET'
s
Decision and Reasoning
- The Claimant was an employee of the Respondent, having
started
her employment on 23 April 2014. As the ET found, that employment ended on 22 April 2015; that was the effective date of termination for
statutory
purposes.
Some
form of dispute between the parties appears to have arisen first in
March
2015, and it was then that the Claimant consulted her
solicitors
about these concerns and her position at work. Those
solicitors
continued to act for the Claimant throughout the events with which the ET was concerned at the Preliminary Hearing.
- After her employment had ended and before
she
could lodge any ET proceedings, the Claimant had first to comply with the ACAS EC requirements.
She
duly commenced EC on 17 July 2015, and this ended on 31 August 2015. Thus
meaning
- it being common ground before the ET - that the last day of the primary limitation period was 30
September
2015.
- In
September
2015, the Claimant gave her
solicitors
instructions to present claims to the ET and put them in funds for this purpose. To
save
costs, it was agreed that the Claimant would complete the pro forma parts of the ET1 herself. In doing
so,
however, when completing that part of the ET1 that required her to provide her EC certificate number, the Claimant
made
an error,
missing
off the last forward
slash
and two digits. This arose because
she
inserted the number contained in a header to an email from ACAS - which
seems
to have been forwarded to her by her
solicitors
- but had failed to read the content of the email itself, which
specifically
advised:
"It is important to quote the full number on the attached certificate, which is a letter (or two letters in the case of a group claim), followed by 10 numbers in the format [formats described]." (ET Judgment, paragraph 27)
That is guidance that
might
also have to be discerned from the text at box 2.3 of the ET1 form. In any event, this
mistake
was not picked up by the Claimant'
s
solicitors,
who were familiar with the ACAS EC requirements and had themselves received the relevant email from ACAS.
- On 30
September
2015, the Claimant'
s
solicitors
undertook to lodge the Claimant'
s
ET claim. The
solicitor
handling this was aware there was a requirement to pay a fee when lodging the claim but was told by the firm'
s
accounts department that the ET fee
should
be paid using a credit facility the firm had
set
up with HMCTS. Acting on that information, an administrative assistant was
sent
to lodge the claim with the
London
(
East)
ET and did
so
by handing it to an employee at the ET offices.
- In fact, payment through an HMCTS account was not acceptable to the ET central office and by letter dated 1 October 2015, the claim form was returned to the Claimant'
s
solicitors
stating
that it had not been accompanied by a fee and the claim contained an incomplete ACAS EC certificate number. That letter was received by the Claimant'
s
solicitors
on 5 October 2015, and on 6 October the claim was duly resubmitted with a cheque for the fee and with the EC certificate number corrected by hand. That claim was accepted by the ET.
- Against this factual background, the ET noted that the relevant time limit for the Claimant'
s
claims was three
months
from the effective date of termination. That time limit
might
only be extended where an ET was
satisfied
it was not reasonably practicable to bring the claim in time and that it had been lodged within a reasonable time of it becoming practicable to do
so.
The ET reminded itself of the case law relevant to these tests, noting that the test of reasonable practicability was a practical one concerned with the reasonable feasibility of bringing a claim within the ordinary time limit.
- The ET
specifically
had regard to the case law relevant to errors
made
by legal advisers. In particular, it referenced Dedman
v
British Building and Engineering Appliances Ltd [1973] IRLR 379 CA, in which it was held that where a Claimant or her advisers were at fault in allowing the time limit to pass without presenting a claim, it could not be
said
to have been impracticable for the complaint to have been presented in time ("the Dedman principle"). The ET noted, however, that
some
cases
suggested
a weakening of the Dedman principle;
see
Marks
&
Spencer
plc
v
Williams-Ryan [2005] IRLR 562 CA and
Northamptonshire
County Council
v
Entwhistle [2010] IRLR 740, in which the EAT had held that the test of reasonable practicability was to be judged by what the Claimant would have done if given
such
advice as the advisers
should
reasonably, in all the circumstances, have given.
- Further noting the additional complications arising from the EC requirements and the then ET costs regime, the ET observed that a genuine reasonable
mistaken
belief that a claim had been
validly
lodged in time
might
make
it not reasonably practicable to lodge a
second
correctly constituted claim within the primary time limit;
see
the decisions of different divisions of the EAT in
Software
Box Ltd
v
Gannon [2016] ICR 148; Adams
v
BT plc [2017] ICR 382 and obiter Baisley
v
South
Lanarkshire Council [2017] ICR 365.
- In the present case, the ET concluded that the Claimant'
s
ET1 was initially correctly rejected because it did not contain an EC number and was not accompanied by a fee. The question was whether it would have been reasonably practicable to present the claim in time. The Claimant and her
solicitors
believed they had presented a properly constituted claim in time, albeit that belief was
mistaken.
The Claimant'
s
belief arose from her confidence in her
solicitors.
Her
solicitors'
belief arose because they had failed to
spot
the error in the EC certificate number and had wrongly thought they could pay the fee using an HMCTS account.
- As far as the EC certificate number was concerned, the ET
saw
this as a case akin to Adams
v
BT and "had little difficulty in resolving the issue of reasonable practicability in favour of the Claimant" (paragraph 72). As for the fee, the Claimant'
s
solicitors
had been at fault, but had the claim not been physically accepted when handed in at the ET office they would have rushed a cheque to the office and ensured it was lodged in time. Given both the Claimant and her
solicitors
laboured under a
mistaken
belief that a
valid
claim had been presented in time, the ET concluded it was not reasonable for them to present a properly constituted claim in time in these circumstances. Once the errors were drawn to their attention, the Claimant'
s
solicitors
had then presented a properly constituted claim within one day. That was within a reasonable further period and the claim would thus be treated as in time.
The Appeal and the Parties'
Submissions
The Respondent'
s
Case
- The grounds of appeal focus
solely
on the incorrect certificate number; no challenge has been
made
to the ET'
s
conclusion on reasonable practicability in respect of the ET fee. By its first ground, the Respondent contends that the ET erred in law as it
misapplied
the
section
111(2)(b) ERA "not reasonably practicable" test. The
second
ground
makes
much
the
same
point but brings into play the Dedman principle, namely that where it is held that where a Claimant or her advisers are at fault in allowing the time limit to pass without presenting a claim, it could not be
said
to have been impracticable for the complaint to have been presented in time. As for the third ground of appeal, the Respondent contends that the ET'
s
conclusion is properly to be described as perverse.
- In general terms, the Respondent observes that the onus had been on the Claimant to demonstrate that presentation within time was not reasonably practicable,
see
Porter
v
Bandridge Ltd [1978] ICR 943 CA, at page 948D-E. As a
matter
of fact, the ET found the Claimant had
made
a
mistake
in transcribing the EC number because
she
had failed to carefully read the email from ACAS (and, presumably, also the wording at box 2.3 of the ET1 form). It had further found that her
solicitors
failed to check the ET1 properly and had thus not
spotted
the error. In this regard, the ET had held (paragraph 71) that the Claimant'
s
solicitors
were "unquestionably at fault in failing to check the ET1 thoroughly". The ET had concluded that the claim was presented late because both the Claimant and her
solicitors
were operating under a
mistaken
belief that the form had been properly presented on 30
September
2015. A
mistaken
belief could, however, only be regarded as a relevant impediment - rendering it not reasonably practicable to present the claim in time - if it was itself reasonable,
see
Wall'
s
Meat
Co Ltd
v
Khan [1979] ICR 52 CA at pages 60F to 61A.
Moreover,
where
solicitors
were engaged, their actions would bind their client; as
such,
it would not be open to a Claimant to rely on any error on the
solicitor's
part, unless that was itself reasonable,
see
Marks
&
Spencer
plc
v
Williams-Ryan, affirming the Dedman principle in this regard.
- In the present case, it was only in fact necessary to consider the
solicitor's
fault (1) because that was what the application of the Dedman principle entailed, and (2) because factually it was the
solicitor's
fault that was the operative cause of the error. The question for the ET was, therefore, whether the
solicitor's
fault had been reasonable. The ET had opined that "fault does not necessarily equal unreasonableness" but it had failed to express a conclusion on this critical question.
- To the extent the ET had purported to answer this question by relying upon the EAT'
s
decision in Adams
v
BT,
such
reliance was
misplaced:
(1) The ratio of Adams was
merely
that if the first claim is presented in time and then a
second
claim presented out of time, it does not automatically follow that it was reasonably practicable to present the claim in time. What was or was not reasonably practicable remained a question of fact for the ET,
see
the EAT in Chard
v
Trowbridge Office Cleaning
Services
Ltd UKEAT/0254/16 at paragraph 80; and
(2) There was a
material
distinction between the present case and Adams, in that the Claimant'
s
solicitors
here had been involved throughout and for
more
than
six
months
before the last day of the limitation period. Whereas the
solicitors
in Adams had only been instructed on the
very
last day.
- It was,
moreover,
apparent that ACAS had emailed the
solicitors
in the present case the details regarding the EC certificate. Thus, to the extent that the ET had purported to answer the question raised by application of the Dedman principle, its conclusion was perverse.
Moreover,
even if it was not correct to look
solely
at the
solicitor's
error, it was the Respondent'
s
case that the Claimant'
s
conduct itself could not be held to have been reasonable.
The Claimant'
s
Case
- For the Claimant,
Mr
Bousfield reminds
me
that the determination of the question of reasonable practicability is a
matter
of fact for the trial Judge,
see
Palmers &
Saunders
v
Southend-on-Sea
Borough Council [1984] ICR 372; on the facts found by the ET, it had been entitled to find the present case to be on all fours with Adams.
Moreover,
it would be wrong to place artificial barriers in the way of genuine claims,
see
SoS
for Business, Energy and Industrial
Strategy
v
Parry & Another [2018] EWCA Civ 672 per Bean LJ at paragraph 31.
- The ACAS EC provisions provided an opportunity for the parties to explore conciliation. Those provisions
should
not be used or interpreted to create a layer of
satellite
litigation,
see
Mist
v
Derby Community Health
Services
NHS
Trust
UKEAT/0170/15 at paragraph 53, Drake International
Systems
Ltd & Others
v
Blue Arrow Ltd UKEAT/ 0282/15 at paragraph 35 and De
Mota
v
ADR Network & Another UKEAT/0305/16.
- The Employment Tribunals (Constitution and Rules of Procedure) 2013 ("ET Rules 2013")
should,
moreover,
be read
subject
to the overriding objective,
see
Rule 2 of the ET Rules 2013, which imported the requirement that the Rules were to be interpreted in a way that enabled the ET to deal with the case justly, which
meant
that it
should
deal with the case proportionately in a way that avoided unnecessary formality and allowed for flexibility in the proceedings and which
saved
expense.
- In the present case, it was apparent that the ET correctly directed itself as to the ratio of Adams and had found that any fault on the part of the Claimant'
s
solicitors
did not necessarily equal unreasonableness. That did not reveal an error of approach,
see
per Lady Wise at paragraph 30 Baisley
v
South
Lanarkshire Council [2017] ICR 365 EAT. That was also the answer to the Dedman principal point,
specifically
in a
situation
where to
save
costs the Claimant had elected to unbundle legal
services
and to undertake
some
parts of the claim herself, for example, completing the ET1. Any duty on the
solicitor
to check the Claimant'
s
completion of the form
must
be limited and, as allowed in
Northamptonshire
County Council
v
Entwhistle, it was possible to conceive a circumstance where an adviser'
s
failure to give the correct advice was itself reasonable,
see
per Underhill P (as he then was) at paragraph 9.
- In this case, the relevant circumstances included the way in which the Claimant had agreed to undertake
some
of the work herself in order to
save
costs. It was this, in part, which
made
this case
materially
the
same
as Adams. As for the perversity challenge, the Respondent had to
meet
the high threshold laid down in Yeboah
v
Crofton [2002] EWCA Civ 794, but that was not
made
out on the ET'
s
findings in this case.
The Relevant Legal Principles
- The
starting
point is
section
111 of the ERA, which provides as follows:
"111. Complaints to employment tribunal
(1) A complaint
may
be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.
(2)
Subject
to the following provisions of this
section,
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, 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."
Section
111 ERA
must
now be read alongside the relevant procedural Rules governing the presentation of an ET claim and the EC requirements.
- By Rule 8 of
Schedule
1 of the ET Rules 2013, it is provided that an ET complaint is
started
"by presenting a completed claim … (using a prescribed form)".
- Rule 10 is then headed "Rejection: form not used or failure to
supply
minimum
information". It is a
mandatory
Rule that requires an ET to reject a claim if "it does not contain all of the following information - [namely] (i) an early conciliation number" (paragraph (1)(c)).
- The result is that if the
minimum
information thus required is not provided within the form, the ET has no option but to reject the claim unless that omission is capable of being excused by considering
some
other Rule.
- Rule 12 of the ET Rules 2013, deals with rejection for
substantive
defects and allows that in certain prescribed circumstances, an Employment Judge
might
allow that the claim
should
not be rejected;
see
Rule 12(2A) and (1)(e) or (f). As was observed in Adams
v
BT plc [2017] ICR 382, the consequence of this provision is that Rule 12(2A) provides an escape route for
minor
errors in relation to a name or address both identified as the
mandatory
minimum
information to be
supplied
under Rule 10 (failing which an ET will reject the claim). Contrariwise, however, a
minor
error in relation to the earlier EC certificate number itself - if the EC number entered on the claim form was not the
same
as the EC number on the certificate - is not capable of being corrected in the
same
way under Rule 12(2A). As
Simler
P opined in Adams (
see
paragraph 7), "It is difficult to
see
any justification for this distinction".
- Returning to Rule 10, by paragraph (2) it is provided that "The form
shall
be returned to the claimant with a notice of rejection explaining why it has been rejected" and that the notice
should
"contain information about how to apply for a reconsideration of the rejection".
- Rule 13 deals with reconsideration and provides that a Claimant, whose claim has been rejected under Rule 10,
may
apply for reconsideration on the basis that the decision to reject it was wrong or that the notified defect can be rectified. Rule 13(4), however, provides "If the Judge decides that the original rejection was correct but that the defect has been rectified, the claim
shall
be treated as presented on the date that the defect was rectified".
- In
Sterling
v
United Learning
Trust
UKEAT/0439/14, it was held that the wording of Rule 10 - which had not
significantly
been an issue in that case - required an EC number to be
set
out and that it was implicit that the number
should
be the accurate number; where a claim was presented and contained an inaccurate EC number, it would therefore be
validly
rejected by the ET for that reason.
- The EAT in Adams - where this point was at the heart of the appeal - agreed with that conclusion.
Moreover,
as was noted in Adams, the Claimant will not
succeed
in avoiding this consequence by applying for a reconsideration of the rejection. As Rule 13(4) provides, the original decision to reject would have been correct and the Rule affords no discretion as to how to treat the date of presentation of the claim. Rule 13(4) is
similarly
expressed in
mandatory
terms and provides that it is not the date when the claim was officially presented but the later date, when the defect is rectified, that will be relevant.
- Thus the course that a Claimant
must
take in these circumstances is to re-present her claim with the relevant error rectified. If that is
still
within the relevant time period, that creates no difficulty. If, however, the original claim was lodged in time but time expires before the rectified claim is presented, then the question becomes - for the purpose of an unfair dismissal claim, for example (a different test
may
arise in other claims, e.g. those involving complaints of discrimination) - whether it had been reasonably practicable for the claim to be presented in time.
- In Adams, the ET had considered that, as the original ET1 had been lodged in time, it
must
have been reasonably practicable for a correctly completed claim to have been presented in time and, as this had not been done, the Claimant'
s
complaint of unfair dismissal was held to be out of time. The EAT in Adams held, however, that the ET had erred in its approach:
"16. … the employment judge focused on the first claim without any reference to the circumstances relevant to the
second
claim. … In effect the employment judge treated the fact that the first complaint was presented in time (albeit on a defective basis) as excluding the possibility of finding it was not reasonably practicable to present a
second
claim in time. That question was addressed in
Software
Box Ltd … para 41 by Langstaff J (President), where he held that the fact that a complaint was
made
within time and then rejected does not as a
matter
of principle preclude the consideration of whether a
second
claim traversing the
same
ground is one in which the tribunal
should
have jurisdiction."
See
also
Software
Box Limited [2016] ICR 148, to like effect.
- As for the approach to be adopted to the question of reasonable practicability, it is trite law that the question of what is or is not reasonably practicable is a question of fact for the ET, a test that was considered in Wall'
s
Meat
Co Ltd
v
Khan [1979] ICR 52 CA by Brandon LJ in the following terms:
"… The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is
some
impediment which reasonably prevents, or interferes with, or inhibits,
such
performance. The impediment
may
be physical, for instance the illness of the complainant or a postal
strike;
or the impediment
may
be
mental,
namely, the
state
of
mind
of the complainant in the form of ignorance of, or
mistaken
belief with regard to, essential
matters.
Such
states
of
mind
can, however, only be regarded as impediments
making
it not reasonably practicable to present a complaint within the period of three
months,
if the ignorance on the one hand, or the
mistaken
belief on the other, is itself reasonable. Either
state
of
mind
will, further, not be reasonable if it arises from the fault of the complainant in not
making
such
inquiries as he
should
reasonably in all the circumstance have
made,
or from the fault of his
solicitors
or other professional advisers in not giving him
such
information as they
should
reasonably in all the circumstances have given him." (Pages 60F-61A)
- The focus is accordingly on the Claimant'
s
state
of
mind,
viewed
objectively. That
said,
where a Claimant has instructed professional advisers to act for her (as here),
she
will not be able to escape a finding that it was reasonably practicable to present the claim in time by
virtue
of the fact that the failure arises from an error
made
by her advisers,
see
Dedman
v
British Building and Engineering Appliances Ltd [1973] IRLR 379 CA ("the Dedman principle"). That rule
might
be
mitigated
in certain circumstances. For instance, the answer
might
not be the
same
if the adviser is working in a
voluntary
or lay capacity -
see
Marks
&
Spencer
plc
v
Williams-Ryan [2005] IRLR 562 CA - or where it was reasonable for the advisers to have given the wrong advice in the particular circumstances of the case -
see
Northamptonshire
County Council
v
Entwhistle [2010] IRLR 740.
- When considering reasonable practicability for these purposes and the particular impediment to the in-time presentation of the claim, the reasonableness of the
steps
taken - not necessarily
simply
a question of fault - can be relevant. As Lady Wise observed in Baisley
v
South
Lanarkshire Council [2017] ICR 365 EAT:
"30. I have reached the
view
that the employment tribunal in this case did rely on what was regarded as fault on the part of the claimant'
s
advisers as determinative of the issue. There are two
main
problems with
such
an approach. First, on the facts found, the only conceivable "fault" on the part of the advisers was that they did not take an active
step
to contact the tribunal to ensure that the facsimile transmission they had
sent
had actually been received.
Standing
that the problems they had encountered with their fax
machine
were not understood to include the non-receipt of faxes by the recipient, describing
such
an omission as "fault"
seems
to
me
to demand
something
approaching a perfectionist
method
of working. I do not consider that it can
safely
be concluded that any reasonable
solicitor
would have
made
such
an inquiry.
Secondly,
and
more
importantly, even if on the facts found there was clear fault on the part of the claimant'
s
advisers, there were other factors to be weighed in the balance before it could be proper to reach a conclusion whether discretion
should
be exercised in terms of rule 5. There is on the face of the judgment, no attempt to address the balance of prejudice. A failure to address the issue of balance of prejudice in
such
circumstances is in
my
view
a clear error of law. I am fortified in that conclusion by the decision of the current President,
Simler
J, in Adams
v
British Telecommunications plc …"
See
also the approach adopted by
Simler
P at paragraphs 30 to 31 of Adams, when the EAT itself determined the question of reasonable practicability for the purpose of disposing of the appeal in that case.
Discussion and Conclusions
- As the Claimant has
stressed,
it is trite law that the question of what is or is not reasonably practicable is a question of fact for the ET,
see
Wall'
s
Meat
v
Khan and also Palmers &
Saunders
v
Southend-on-Sea
Borough Council. In this case, correctly focusing on the Claimant'
s
state
of
mind,
viewed
objectively, the ET held that
she
believed that
she
had lodged a properly constituted claim in time because
she
had confidence in her professional advisers. If those advisers had unreasonably failed to lodge a properly constituted claim in time, however, then the application of the Dedman principle
must
mean
that the Claimant would not be entitled to
simply
rely on that confidence in what they had done;
she
would be bound by their unreasonable conduct. The question therefore became whether the Claimant'
s
solicitors
had acted reasonably. They had plainly failed to
spot
the error on the ET1 and the ET found that they were unquestionably at fault in failing to check the ET1 thoroughly. It did not conclude, however, that this automatically
meant
that their conduct was unreasonable.
- The Respondent contends that there could in fact only have been one answer to this question in this case; it was not on all fours with Adams and the ET'
s
finding as to the Claimant'
s
solicitors
having been at fault was
sufficient
to
make
it clear that they had been unreasonable. At its highest, the Respondent'
s
argument draws on the fact that the language used in Wall'
s
Meat
v
Khan and in Dedman is
simply
that of "fault"; there is no
suggestion
in those cases that this would result in anything other than a finding that the Claimant or her advisers had not acted reasonably. The Respondent further observes that had the Claimant'
s
solicitors
acted reasonably - if they had not failed to check the ET1 thoroughly - they would have
spotted
the error in the transcription of the EC number and the claim would have been properly lodged in time; the ET thus ought to have held that it had been reasonably practicable for the claim to have been presented within the relevant time limit. For the Claimant, it is
said,
there is no
material
difference between this case and Adams and it was clear that the ET had found the Claimant'
s
solicitors
had not acted unreasonably;
moreover,
the EAT
should
be careful not to import unnecessary obstacles to the lodgement of a claim and it was right to look at the question of prejudice.
- On that last point - the question of prejudice - in written argument for this hearing, the Claimant had
sought
to read across the reasoning of the EAT in Adams on the question of the adjustment from extension in respect of the race discrimination claim in that case. At the oral hearing, however,
Mr
Bousfield has accepted that was a bad point; the present case is concerned only with the reasonably practicable test for unfair dismissal purposes - the question of balance of prejudice does not arise. That
said,
the Claimant
maintained
that the error at issue in this case had given rise to an unnecessary and artificial barrier.
- On that last observation, I have
some
sympathy
with the Claimant'
s
objection. The barrier is, however, erected by
virtue
of the ET Rules 2013 -
see
the earlier discussion in this regard above - and, as
Simler
P observed in Adams, there appears to be no
sensible
reason for the failure to afford the ET a
similar
discretion in respect of transcribing the EC number than that provided in respect of a party'
s
name. Given the
mandatory
language of Rule 10(1)(c)(i) of the ET Rules, however, I am unable to
see
how the requirement could be
mitigated
by
means
of the overriding objective. The barrier is thus one created by the ET Rules themselves and not by the approach of the ET or the EAT.
- For all that, I also agree with the Claimant that it is hard to characterise the error in question as anything other than
minor
and technical and I do not consider it could be
said
that this kind of
mistake
was anticipated by the earlier case law (
such
as Wall'
s
Meat
or Dedman); those cases plainly did not address the kind of additional requirements now imposed under the EC regime. And in this context, I consider the ET was entitled to
make
the observation that fault does not necessarily equal unreasonableness for these purposes. It
seems
to
me
that the particular nature of the error
might,
in particular cases, be a relevant factor for an ET to weigh in the balance when determining the reasonableness of the conduct for the purposes of reasonable practicability. That is not to
suggest
that the test of reasonable practicability
should
be taken to equate to that applicable to the just and equitable extension permitted in other contexts. As was acknowledged in Adams, however, the nature of the error
may
be relevant to understanding why there was an impediment to the in-time presentation of a claim
- In circumstances in which it
might
not have been unreasonable for a Claimant or, I would allow, her advisers not to appreciate that an initial claim lodged in time contained a
minor
but a fatal error, an ET would be entitled to find it was not reasonably practicable for the corrected claim form to be presented in time. This question will inevitably be fact- and context-
specific
but, as Lady Wise allowed in Baisley, it
might
not always be right to assume that every omission, however technical, is not reasonable.
- As to whether this case is or is not on all fours with Adams, I do not think that is the real question. The Dedman principle point does not
seem
to have been raised in Adams. That
might
be because the
solicitors
in that case came in at a
very
late
stage
and did not advise on the content of the form - it is hard to tell from the EAT'
s
Judgment - but certainly the Dedman principle does not appear to have been raised as an issue in that case. In any event,
my
focus has to be on the case that is before
me
and whether the ET applied the correct test and reached a permissible conclusion on the facts of this
matter.
I therefore return to the ET'
s
Judgment in issue on this appeal.
- The Judgment in question followed a Preliminary Hearing, which concerned a far wider range of points than that which occupies
me
on this appeal. In almost every respect, it is a Judgment that is a
model
of perfection. It correctly
sets
out the applicable legal framework and carefully records the findings
made
on the relevant issues,
save,
I am driven to conclude, on the question that is at the heart of this appeal; that is, whether it was reasonable for the Claimant to place reliance on the
submission
of the first ET1 given the error
made
by her
solicitors
in failing to check the form
sufficiently
thoroughly to pick up on the
mistake
she
had
made.
- If the Claimant'
s
solicitors
had acted unreasonably in this regard then, given the application of the Dedman principle, it would have been reasonably practicable for the claim to have been presented
validly
and in time, at least
so
far as the EC number was concerned. That was the crucial issue with which the ET needed to demonstrate it had engaged. I am unable, however, to
see
that it did and to that extent I
must
allow the appeal.
- That
said,
I do not agree with the Respondent that the answer to this question was, or is, inevitable. Although the ET was critical of the Claimant'
s
solicitors
for not checking the ET1 thoroughly, it allowed that this was not necessarily unreasonable. That was neither an error of approach, nor did it evidence a perverse conclusion, given the particular circumstances of the case. The Claimant had expressly unbundled the
services
that were to be provided by her
solicitors
to
save
costs; not an unreasonable
step
to take. In addition,
she
had undertaken to complete the formal parts of the ET1 herself. That being
so,
if the
solicitors
checked everything
she
had done, there would have been no
saving
in cost. Their error
might
thus not have been unreasonable in those circumstances. The Respondent objects that all the
solicitors
needed to do was check those
matters
that were
mandatory
requirements for the
valid
presentation of the claim. That
might
be a relevant point but I do not consider it can be
said
to be determinative; ultimately, it would be a
matter
of weight and balance for the ET.
- As for the Claimant herself,
she had erred in failing to read the content of the ACAS email but the ET was entitled, as the EAT itself concluded in Adams, not to find that that was necessarily unreasonable conduct.
- I therefore uphold the appeal, insofar as I agree that the ET failed to ask itself the correct question or, to the extent it did, failed properly to explain its reasoning in this regard, in particular with reference to the Dedman principle. To the extent, however, that the appeal raises a question of perversity, it is dismissed.