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Appeal against refusal to extend time for claims of discrimination and unfair dismissal. The EAT found that, even if the claimant, a litigant in person, had not specifically raised the point that he genuinely thought there was an ongoing procedure in relation to his dismissal, it should have been considered by the Tribunal Judge in light of the ET1. Appeal succeeded and remitted to the same Employment Judge.
Appeal No. UKEAT/0160/10/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 9 August 2010
HIS HONOUR JUDGE McMULLEN QC
MR B OWOLOWO (APPELLANT)
FAMILY MOSAIC HOUSING ASSOCIATION (RESPONDENT)
Transcript of Proceedings
For the Appellant MR ABOU KAMARA (Free Representation Unit)
For the Respondent MISS SUZANNE PALMER (of Counsel)
Roger Vincent Associates
19 Claremont Road
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Judge considered EADR reg 15(1)(b) and (2) relating to grievances, but not 15(1)(a) and any reasonable belief by the Claimant that his solicitor's letter seeking reinstatement was an ongoing procedure to do with his dismissal. Towergate and Eagles v Rugged applied. Even if the Claimant in person, against counsel, did not specifically raise this, it ought to have been considered by the Employment Judge in light of the ET1. Exceptionally this new point would be allowed on appeal. Remitted to the same Employment Judge to determine it.
HIS HONOUR JUDGE McMULLEN QC
1. This case is about the now defunct Employment Act 2002 regime for the raising of issues prior to lodging a claim. I will refer to the parties as the Claimant and Respondent.
2. It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Haynes sitting at East London hearing centre registered with reasons on 20 January 2010. This was a PHR in order to determine whether the claims of discrimination and dismissal should be heard since the claim form was presented roughly a month out of time.
3. The Claimant represented himself but today has the advantage to be represented by Mr Abou Kamara giving his services for FRU. The Respondent continues to be represented by Miss Suzanne Palmer of counsel.
4. The central issue was whether the claim should be accepted, it being admitted to be out of time. The Employment Judge decided that it was out of time and dismissed all the parts of the claim. The Claimant appeals. I gave directions sending this to a full hearing.
5. The legislation is not in dispute. Regulation 15 of the 2004 Dispute Resolution Regulations which provides:
"(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and –
(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; ....
(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."
6. The Respondent is a small social housing charity operating in Essex and East London. The Claimant was employed for some 6 years as a floating support officer. Relationships began to deteriorate. On 25 February 2009 he was dismissed. The dismissal was confirmed by letter of 27 February 2009 including advice as to a right of appeal. He did appeal on 12 March 2009 and his appeal was conducted on 26 March 2009. It was rejected by letter of 31 March 2009. It is said the internal appeal process has concluded.
7. The Claimant made a decision immediately to pursue his complaint to an Employment Tribunal. His research found an organisation on a website called "Tribunal Action" and mistakenly believed that he was in touch with the Employment Tribunals. Part of that process involved the intervention of a solicitor, so that on 21 May 2009 Clive Rees & Co, wrote to the Respondent on the Claimant's behalf and a copy was sent to the Claimant. This went through the history of the relationship, raising a number of issues but of importance for the appeal is the following:
"Mr Owolowo requests reparation in the form of compensation and to return to his employment.
On behalf of Mr Owolowo, we urge you to seriously consider the above information, and contact my client direct in writing within the next 28 days."
8. The Employment Judge was dealing with an application to allow the claim form to be admitted. The three-month deadline was 24 May 2009 and it was presented on 25 June 2009, roughly a month late. There are discretionary extensions for the purposes of unfair dismissal and sex discrimination.
9. The grievance procedures in the 2002 Act regime do not apply for the purposes of ordinary unfair dismissal but the dismissal procedures do. Regulation 15(1)(a) deals specifically with a dismissal. In a careful and conscientious judgment the Employment Judge addressed himself specifically to regulation 15(1) and 15(3) (see paragraphs 8 of his reasoning). He had acknowledged the primary and secondary limitations under the relevant provisions and expressly disavowed any application of the 2004 regulations to a dismissal (see paragraph 9). The claim was therefore out of time and discretion was not exercised.
The Claimant's case
10. On appeal the Claimant contends that the circumstances are affected by two judgments of this court. The first is Towergate London Markets Limited v Harris  IRLR 537, the Court of Appeal upholding my judgment, and the second is Eagles v Rugged UKEAT/0018/09/ZT. He contends the Judge did not consider whether or not the escape clause in regulation 15(2) applied to him. On instructions Mr Kamara, who of course was not present, says the point was raised at the Tribunal but in any event the Judge should have dealt with it. The matter should go back to the same Judge for him to determine this matter.
The Respondent's case
11. Miss Palmer, on behalf of the Respondent, raises two points. She contends that neither of the two authorities is relevant for in each of those an appeal process within regulation 15(2) was offered to the respective Claimants, whereas in this case the procedure is sought to be resurrected by the solicitor's letter. She accepts that on its face the passage cited above does constitute an attempt to institute a process to do with the dismissal of the Claimant and it seeks to return him to work.
12. As to the reliance placed by the Claimant in what is said in his ET1, Miss Palmer contends this does not establish reasonable belief. Even if she is wrong about that, a long line of authority indicates that this is a new point and should not be accepted (see for example Kumchyk v Derby County Council  ICR 1116). That line is analysed in a judgment I gave in Leicestershire County Council v Unison, which was approved by the House of Lords in Astley v Celtec  UKHL 29.
Discussion and conclusions
13. I agree with Miss Palmer that the approach of the EAT generally is to refuse to allow new points to be raised. Occasionally where there is what is described as a hard-edged point of law, it may be raised for the first time in the EAT; but where evidence is required it would be exceptional to allow the point to be raised.
14. The first issue is to decide what was raised. In my judgment the Employment Judge should have either been referred to, or directed himself to, an examination of regulation 15(2) for the purpose of deciding whether the extension was in place. The time upon which this action is focussed is midnight on 24 May 2009, for that is the end of the primary limitation period for unfair dismissal. The question is: did the Claimant claim that he reasonably believed a process was ongoing?
15. The written material relating to this is the passage in the claim form which is as follows:
"I believed this organisation [that is Tribunal Action] was internal within [the ETS organisation]; I thought Tribunal Action was a stage in the process of initiating an action against my former employer. If I had known they were not part of your organisation, I would have contacted you directly, thereby saving time and money."
16. As a matter of construction this is the foundation of a belief. The Claimant was saying there was some process to do with initiating resolution of his case. More important, however, is what his solicitor said on his behalf. Since Miss Palmer helpfully accepts that on its face this does indicate a wish by the Claimant to engage in a process to secure his return to employment, I hold that this is sufficient basis for him to maintain a belief. Whether he in fact did so is a matter I cannot determine and would require evidence from the Employment Tribunal. But, on one view, since he appears to have had this letter in his hand at the watershed on 24 May 2009, he would be entitled to say: My solicitors have started a process to get my job back and to secure some form of compensation and they are looking for serious reconsideration by the employer and a reply. I appreciate that the trail had gone cold. There can be no doubt the internal processes which were extant had come to an end.
17. However, as is clear in both Towergate and Rugged, it is possible to be engaged in a procedure meeting regulation 15(2) even if it is not within the formal process of the employment relationship as it is written. That is what seems to be available for discussion here. The question is whether or not this should be allowed to be raised. Mr Kamara points out that the Claimant is a litigant in person. He is however an intelligent person and the Judge has rejected his account of what could reasonably be believed on the written material. He applied an objective test. But the test for the purposes of regulation 15(2) is subjective. There has to be a finding as to subjective belief in an ongoing process and whether that was reasonable in the circumstances.
18. This is an exceptional case where I will as a matter of discretion allow the matter to be ventilated at the Employment Tribunal. There is not enough material for me to decide the critical issue. I appreciate that the Claimant has not followed the direction I gave as to adduction of relevant material, so as to put this point more clearly with evidence before me (see paragraphs 4 and 5 of my order of 16 March 2010). Miss Palmer understandably does not want to see her client back in the Employment Tribunal to rehearse this matter, when it could have been resolved had the orders I gave been complied with. I agree with her in part but since it seems as though there was no direct oral evidence as to the state of mind of the Claimant on 24 May 2009, the Judge's note probably would have revealed nothing.
19. In my judgment once the Judge was focussed, as this PHR was, on regulation 15(2) he was duty bound, with a litigant in person, to consider what was the state of mind of the Claimant at the end of the first limitation period and to consider whether he did believe and reasonably believe the process was ongoing once he received the solicitor's letter. That is a matter which will now be determined by the Employment Judge. At the suggestion of Miss Palmer about unfairness in terms of cost, I will hear further argument. Nobody has argued that this should go back to a different Judge. So I allow the appeal and remit the case to the same Employment Judge for a finding at a PHR under regulation 15(1)(a) and 15(2).