Appeal No. UKEAT/0890/04/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 February 2005

Before
HIS HONOUR JUDGE PROPHET
MR T HAYWOOD
MR H SINGH

SEVERN TRENT SYSTEMS LTD T/A ASERITI	APPELLANT

MR M O'MAHONY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A SHARLAND 
(of Counsel)
Messrs Martineau Johnson Solicitors
No 1 Colmore Square
Birmingham
B4 6AA	
For the Respondent	MR M O'MAHONY
(The Respondent in person)	

SUMMARY

Time Limits
Four claims allowed to proceed by the Employment Tribunal to be heard on their merits notwithstanding being six months out of time – appeal allowed on the basis of a misdirection by the Employment Tribunal and their failure properly to explain their reasoning as to the relationship between the facts and the application of the facts to the law. Remitted for rehearing to a differently constituted employment tribunal.

HIS HONOUR JUDGE PROPHET

1.	Mr O’Mahony submitted four complaints against his former employer, Severn Trent Systems Ltd, to the Employment Tribunal at Birmingham in August 2004. These were 
“(i) unfairly dismissed because of disability (ii) unfair dismissal (iii) breach of contract 
(iv) failure to pay a redundancy payment”. He indicated that his employment ended on 
9 November 2003, and that was confirmed by the employer. Accordingly he had three months from that date to present all his complaints, i.e. until 8 February 2004. It follows that, on the face of it, all his complaints were some six months out of time.

2.	An Employment Tribunal sitting at Birmingham on 18 November 2004, with 
Mr Dimbylow as the Chairman and Mr Gilbert and Mr Tromans as the lay members, considered time limits as a preliminary issue and accepted, after hearing Mr O’Mahony in person and the employers through Mr Thornber, a solicitor, that the complaints were indeed some six months out of time, but nevertheless allowed them all to proceed to a full hearing. Judgment with Reasons was sent to the parties on 26 November 2004.

3.	A Notice of Appeal from the employer was lodged on 14 December 2004. That was set down for a full hearing before this Appeal Tribunal by an Order made by His Honour Judge McMullen QC, sealed on 15 December 2004; and we are constituted today to conduct that full hearing. The Appellant employer is represented by Mr Sharland. Mr O’Mahony, who now lives in Cork in the Republic of Ireland, has attended in person. Mr O’Mahony has sent two documents to us, i.e. an answer to the Notice of Appeal, which is dated 
24 January 2005, and a further one-page document dated 14 February 2005. We have considered the contents of these two documents before arriving at our conclusions in respect of the appeal.
4.	One matter which we will deal with first is that in both the above documents Mr O’Mahony asks that the appeal should be, in effect, struck out, on the grounds that it does not comply with Rule 2.4 of the Employment Appeal Tribunal Practice Direction in that there are no clearly identified points of law which form the grounds of the appeal and/or that the appeal does not state the order which the Appellant will ask the Employment Appeal Tribunal to make at the hearing. We decline to do so. There are, in our view, identifiable points of law in the Notice of Appeal. It is correct that the Notice of Appeal does not state the order which the Appellant wishes us to make at this hearing, and the Practice Direction states that the Notice of Appearance “should also state the order which the appellant will ask the EAT to make at the hearing”. However, whilst solicitors and other representatives fail to follow the Practice Direction at their peril, we do not regard that particular requirement as mandatory in the sense that its omission makes the Notice of Appeal invalid.

5.	We turn then to the substance of the appeal. It is necessary, briefly, to sketch out the background. Mr O’Mahony has a Bachelor of Engineering degree. He worked for Severn Water for some two and a half years prior to his employment ending on 9 November 2003, following selection for redundancy. He was aware of being so selected in July 2003. He appealed internally unsuccessfully in that month, although he was given a temporary three-month extension with another post. He had returned to work following an absence for illness, in the nature of mental health problems, on about 18 June 2003, and continued thereafter to attend at work right up to the last day of his employment ie 9 November 2003.

6.	His former employer sent a compromise agreement to him for signature shortly thereafter, the effect of which would have been to provide Mr O’Mahony with an enhancement to his statutory redundancy payment in return to waiving any claims before the employment tribunal. In December 2003, he went to see a solicitor about that matter, but the compromise agreement was not signed. He claimed jobseeker’s allowance between 10 November 2003 and 6 January 2004 i.e. as a person available for work, and then moved to Ireland where he continued to take medication for depression. On 12 June 2004 he wrote to his former employers, saying that he had sought legal advice and considered the compensation given to him on his redundancy was inadequate. The employers responded to say that he was now out of time to have an enhancement to his redundancy payment and that led to a further letter from Mr O’Mahony to the employer. Mr O’Mahony’s doctor, who was attending to him, considered his health had improved considerably in August 2004 when he submitted his application to the Employment Tribunal.

7.	It is well known that time limits in employment tribunals are much shorter than in the civil courts and that there are sound reasons for this. As the employer in this case put in the Notice of Appearance:

“The Applicant made no further contact with the company after he left in November 2003 until he wrote to the company in June 2004. As this was nearly seven months after the redundancy took effect, the company had not unreasonably assumed that the matter was closed.”

That observation is perhaps indicative of how employers understand the principle behind there being much shorter time limits than is the case in the civil courts.

8.	It has to be borne in mind in these proceedings that the system of applying to an employment tribunal, at least at the times we are considering, were not complicated. However it is also well established that time limit extensions are essentially matters of fact for the determination of the employment tribunal and that it is usually an uphill task for an appellant to persuade this Appeal Tribunal that there has been misdirection or that the employment tribunal has taken into account factors that it should not have taken into account, or has failed to take into account factors which it should have taken into account, or that their decision is perverse.

9.	However, in this particular case we have no hesitation in saying that the Employment Tribunal’s Decision cannot be supported and that the appeal must be allowed. We do not feel it appropriate to substitute a decision that all Mr O’Mahony’s complaints are out of time, as Mr Sharland has urged us to do. In situations of this kind, it is the Employment Tribunal which has to hear and evaluate the evidence presented to it, and make the appropriate findings of fact. We are not a fact finding Tribunal. In that situation we consider that the correct course is for us to refer the matter to a differently constituted employment tribunal for a rehearing, and that we do. In that situation it is important that the newly constituted employment tribunal should feel able to exercise their judicial discretion as freely as possible, and that to avoid the possibility of their being swayed one way or the other by this judgment our reasons for allowing the appeal should be stated as briefly as is compatible with explaining to Mr O’Mahony why we have felt it appropriate to allow the appeal.

10.	Those are, in essence, that first there was some misdirection by the Employment Tribunal and secondly that the original Employment Tribunal failed to explain its reasoning in a manner which could be understood as dealing appropriately with the submissions advanced on behalf of the employer by Mr Thornber. 

11.	The first one of those matters which it is appropriate for us to explain is that the Employment Tribunal at paragraph 13 appear to accept that Mr O’Mahony had no knowledge of time limits for bringing complaints to the Employment Tribunal prior to August 2004, i.e. some nine months after his employment ended and indeed some 12 months after he was aware that his employment was likely to end on his having been selected for redundancy. The Employment Tribunal did not, however, seem to have examined, as a self-direction, whether over those lengthy periods a person in Mr O’Mahony’s position ought to have been aware of them: see Wall’s Meat Co Ltd v Khan [1978] IRLR 499, a decision of the Court of Appeal. We have been able to observe today that Mr O’Mahony is an intelligent man. It is difficult to see, and the Employment Tribunal do not satisfactorily explain how, by reasonable enquiry, he could have failed to ascertain the position, bearing in mind that although on medication for depression he had been able to appeal internally, was able to work apparently normally right up to 9 November 2003 and to seek jobseeker’s allowance thereafter, thereby indicating that he was fit to undertake new employment. 

12.	However, what is even more difficult to understand in the context of Mr O’Mahony being expected to make reasonable enquiries is the compromise agreement situation. Compromise agreements, by their nature, are directly related to possible claims to the employment tribunal. They require reference to legal advice, and that Mr O’Mahony sought by approaching a solicitor in December 2003. The Employment Tribunal simply do not satisfactorily explain why, notwithstanding these matters, they concluded that Mr O’Mahony was not reasonably able to be aware of the three-month time limit. In paragraph 19 of their judgment the Employment Tribunal say this:

“We conclude on the balance of probabilities, it was more likely than not that during the period 9 November 2003 to 16 January 2004 the claimant was, again, prevented or inhibited from making a claim or seeking advice about it because of his medical condition.”

13.	Mr Sharland makes the strong submission to us that that is not the correct test on the authorities as to what was reasonably practicable. 

14.	A second matter which we can mention, and which appears, on the face of it, not to have been properly dealt with by the Employment Tribunal was in respect of Mr O’Mahony writing to his employers in June 2004. In the Extended Reasons in paragraph 13, that matter is dealt with very shortly by the Employment Tribunal in one sentence, where they say: 

“The claimant had been in correspondence with the respondent in June and July 2004”

However, the content of that correspondence is important. When that is read, it is not easy to see why the Employment Tribunal did not regard the content of that correspondence and the ability of Mr O’Mahony to write to his former employers as he did, as constituting a justification for an extension to be granted until mid-August 2004. Again, the Employment Tribunal do not give satisfactory reasons for their conclusions in that respect.

15.	There are additional matters of concern within Mr Sharland’s submissions, particularly relating to the relationship between the medical evidence and Mr O’Mahony’s ability to attend to matters relating to his employment, which must have been at the forefront of his mind over many months, notwithstanding that he had personal problems and was suffering from depression during some, at least, of those months. However, we are satisfied that these further matters will be advanced to the new employment tribunal, together with the matters which we have highlighted earlier in this judgment, and that the new employment tribunal will be able, under proper direction, to deal with then and reach a just conclusion.

16.	We may also observe that it cannot be satisfactory for the Employment Tribunal simply to list authorities at paragraph 14 of the Reasons, without explaining which authority, or why, the Employment Tribunal found helpful in applying the statutory provisions to the particular circumstances before them. 
17.	We conclude by saying that although Mr O’Mahony will be disappointed by this outcome today, we are in no position to make any comment on the merits of his claims, should they further progress. Consequently, as indicated above, we unanimously allow this appeal, and direct a rehearing on the time limit issues before a differently constituted employment tribunal at Birmingham.