Appeal No. EAT/1312/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 April 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR W MORRIS
MRS D M PALMER

SIX CONTINENTS RETAIL LTD 
(FORMERLY BASS TAVERNS LIMITED 
T/A BASS LEISURE RETAIL)	APPELLANT

MISS C J HUGHES 	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

`

	APPEARANCES

For the Appellant	MR N PORTER
(of Counsel)
Instructed By:
Messrs Andersons Solicitors
Queens Bench Chambers
42 The Rope Walk
Nottingham
NG1 5EJ	
For the Respondent	MISS C J HUGHES
(in Person)	

JUDGE PETER CLARK:
1.	On 2 November 1999 the Applicant, Miss Hughes was summarily dismissed from her employment with the Respondent, now Six Continents Retail Ltd, as a licensed house manager.  On 20 March 2000 she presented an Originating Application to the London (South) Employment Tribunal complaining of (1) unfair dismissal (2) unlawful deduction from wages/breach of contract (3) sex discrimination on the grounds of pregnancy.  Her employment with the Respondent began in October 1997.

2.	The claim was resisted on its merits, but by their Notice of Appearance the Respondent took the point that these complaints were statute-barred.  That limitation point was taken as a preliminary issue before an Employment Tribunal chaired by Mr Lincoln Crawford sitting on 1 August 2000. 

3.	The Applicant alone gave evidence before the Tribunal.  We have the chairman’s notes from which it emerges that she was 4 ½ or 5 months pregnant at the date of dismissal.  Her son was in due course born on 8 April 2000.  About 2 years earlier she had a miscarriage and in October or November 1999 was advised by the hospital under whose care she came to avoid stressful situations.  

4.	On 4 November 1999, two days after her dismissal, she attended the Benefits Office to enquire about a Job Seekers allowance.  On that occasion she was told that it may be worth her applying to the Employment Tribunal.  She completed the Job Seekers allowance application form.  

5.	In December 1999 she had a one hour free consultation with a lawyer, Miss Sage of Messrs Simpson Milla Solicitors, shortly before an internal appeal was heard against her dismissal.  According to the Chairman’s notes;
“I was told there was a statutory…”  

It seems likely that the missing words in that note of the Applicant’s evidence were “time limit.”  Thereafter she read some employment law books and was sent a conditional fee agreement by Miss Sage and she was also contacted by ACAS.  Between January and March 2000 she discussed the possibility of bringing a claim with her parents and with colleagues at Vodaphone.  She finally presented her Originating Application, as we have observed, on 20 March 2000.

6.	It was common ground that the ordinary limitation period for all 3 heads of claim expired on 1 February 2000.  In view of that agreement it is not necessary for us to enquire into when time began to run for the purposes of the unauthorised deductions claim, see Taylorplan Services Ltd v. Jackson [1996] IRLR 184.  Her explanation for the delay in bringing her complaint, accepted by the Tribunal as matter of fact, was first that she was pregnant; secondly she was traumatised by the allegations of gross negligence made against her by the Respondent which led to her dismissal; thirdly, she had lost her tied accommodation provided by the Respondent on 12 November 1999; fourthly she was very stressed and concerned that her emotional condition could harm her unborn baby.  .

7.	As a matter of law the question as to whether the three heads of complaint may be permitted to proceed notwithstanding that the Originating Application was presented outside the primary limitation period differs.  In respect of the claims of unfair dismissal and unlawful deductions from wages the question is whether the complaint was presented within such further period of time after the expiry of the limitation period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to present the claim within time. 
(Employment Rights Act 1996 sections 111(2)(b) and 23(4), respectively) A Similar test applies to a breach of contract claim as an alternative to the wages claim under article 7 of the Employment Tribunal (Extension of Jurisdiction) Order 1994.  In the case of sex discrimination, the question is whether, in all the circumstances of the case, the Tribunal considers it just and equitable to consider the complaint notwithstanding it was presented outside the primary limitation period Sex Discrimination Act 1975, section 76(5).  

8.	The cases show that the two tests are materially different.  The Tribunal do not appear to make that distinction in their conclusions, to be found at paragraph 8 of their extended reasons accompanying their decision on the preliminary issue promulgated on 8 September 2000.  They say this:

“We accept Miss Hughes’s evidence that she felt emotionally exhausted after she was dismissed from her job.  We also accept that because of her previous miscarriage she was reluctant to do anything which placed her under too much stress and put her baby at risk.  While we acknowledged that Miss Hughes was alerted to the fact that she should file an application with the Tribunal, on at least three occasions prior to the 1 February 2000, we find that in the pregnant state in which she was at the time, it was reasonable for her to file the application on the 20 March 2000.  Accordingly, it was not reasonably practicable for her to present her claim for unfair dismissal, non-payment of wages and sex discrimination on the grounds of her pregnancy, within the statutory time limit.”

9.	Against the Tribunal’s decision to permit all three heads of complaint to proceed this appeal is brought by the employer.  In support of the appeal Mr Porter submits that the Tribunal misdirected themselves in law on the face of the decision and reasons in the following respects:

(1)	In order to determine the reasonably practicable question for the purposes of the first two claims, the Tribunal should first determine whether the Applicant has shown that it was not reasonably practicable to present her claim within the three month time limit and secondly, if it was not, to go on to consider whether the claim was presented within a reasonable time after the expiry of the primary limitation period, here 1 February 2000.  We accept that analysis of the statutory test, see Porter v. Bandridge Ltd [1978] ICR 943 (CA).  Instead, he submits, the Tribunal appears to have asked themselves only whether it was reasonable for the Applicant to wait until 20 March 2000 before presenting the complaint.  That is not the correct approach.  Further, the findings in paragraph 8 of their reasons have translated into the decision itself in these terms.

“Decision
The unanimous decision of the Tribunal is that it was not reasonably practicable for the Applicant to present her claim for unfair dismissal, non-payment of wages and sex discrimination on the grounds of her pregnancy within the statutory time limit and that she presented her application within a reasonable time after it became reasonably practicable for her to do so.”  

The second question, which the Tribunal must answer is whether the claim was presented within a reasonable time after the expiry of the limitation period, not after it became reasonably practicable for her to do so.  A confusion which Mr Porter submits further undermines confidence in the correctness of the Tribunal’s approach.

(2)	The Tribunal has not, on the face of their reasons, addressed the just and equitable question posed by the Sex Discrimination Act at all in relation to the sex discrimination claim.  That is apparently so.

10.	Miss Hughes submits that the Tribunal did apply the correct tests whilst, we think, candidly accepting the force of the Appellant’s submissions.

11.	In our judgment Mr Porter is correct for the reasons he advances.  We are satisfied that the Tribunal has misdirected itself in law to the extent that the decision cannot stand.  Mr Porter further advances submissions on the ground of perversity, that is that no reasonable Tribunal properly directing itself as to the law could conclude on the facts as found other than that the complaint should be dismissed.  In these circumstances he asked us to decide the case ourselves on the Tribunal’s findings of fact and to dismiss the complaint.  

12.	We shall not accede to those submissions.  It seems to us first that the Tribunal ought to make findings of fact in relation to the just and equitable question under the Sex Discrimination Act as suggested by Smith J, among other factors, by reference to the check list in section 33 of the Limitation Act 1980, see British Coal Corporation v. Keeble [1997] IRLR 336, paragraphs 8 – 9.  Secondly, whilst we see the difficulties faced by Miss Hughes on the Tribunals findings of fact in relation the reasonable practicability question.  We are unable to say that no Tribunal properly directing itself would inevitably have concluded this issue in favour of the Respondents, bearing in mind particularly the words of May LJ in Palmer v.Saunders [1984] ICR 372, 385 B, that questions of reasonable practicability are pre-eminently an issue of fact for the Employment Tribunal.  In these circumstances we shall allow the appeal and remit the case for re-hearing before a fresh Tribunal on the limitation questions raised.  We reach that conclusion with regret bearing in mind that by the time this case comes back for re-hearing, some two years will have unnecessarily elapsed.