Software Box Ltd v Gannon
| Jurisdiction | UK Non-devolved |
| Neutral Citation | UKEAT/433/14 |
| Court | Employment Appeal Tribunal |
Industrial relations - Employment tribunals - Claim - Claim rejected for non-payment of issue fee - Second claim with required fee submitted out of time - Whether reasonably practicable for claim to have been made in time - Whether time to be extended - Employment Rights Act 1996 (c 18), s 111(2) -
The claimant was dismissed by her employer and, on 24 December 2013, within the three-month time limit prescribed by section 111(2)(a) of the Employment Rights Act 1996F1, lodged a claim of unfair dismissal. On the same day she made a separate application for remission of the issue fee, which was not received by the Central Processing Unit, and a second application for remission was rejected. The tribunal then sent her a notice to pay the required fee, informing her that the claim would be rejected if payment was not made by 11 March 2014, but it was addressed to a legal representative who was no longer instructed and it was never received by the claimant. When, on 4 April 2014, she was told that her claim had been rejected due to non-payment of fees, she immediately lodged a fresh claim and paid the required fee. On a preliminary hearing to determine whether to extend the time for hearing the second claim, an employment judge decided that under rule 11(1) of the Employment Tribunals Rules of Procedure 2013F2 the payment of a fee or granting of remission was an integral part of the process of a claim being “accepted” and validly “presented”; that, accordingly, since no fee had been paid or remission granted, the first claim had not been validly presented to a tribunal; and that, having regard to the difficulties the claimant faced due to ill-health and the complexities of the fee paying system, it had not been reasonably practicable for the second claim to have been lodged in time and, since it had been lodged within a reasonable period thereafter, time would be extended.
On appeal by the employer—
Held, allowing the appeal and remitting the case for further consideration, that a claim was “presented” for the purposes of section 111(2) of the Employment Rights Act 1996 when it was received by the tribunal, after which it was either rejected or determined by the tribunal or withdrawn, involving no such process as “acceptance” or “valid” presentation; that the fact that a claim was made within time and then rejected did not, as a matter of principle, preclude consideration of a second claim; that, taking the approach to reasonable practicability, in considering whether to extend time under section 111(2)(b), as requiring a focus on what was reasonably understood by the claimant, had the claimant reasonably believed that there was no need to make a claim because she had already made an effective claim, it would be open to the tribunal to consider a second claim made once she realised that that view was mistaken; and that, as the employment judge had failed to make specific findings as to the reasonableness of the claimant’s understanding, the matter had to be reconsidered (post, paras 16, 18, 26, 30, 33, 35, 36, 41, 43).
Per curiam. If the Rules are capable of being construed so as to provide that justice should prevail in individual cases, that construction is to be preferred to one which eliminates the possibility. Had the employment judge been faced with an application for an extension of time within which the fee should be paid, he would have had power under rule 5 of the Employment Tribunals Rules of Procedure 2013 to extend time should he have wished to do so. However, he was never asked to deal with the first claim (post, paras 30, 32).
The following cases are referred to in the judgment:
Hammond v Haigh Castle & Co Ltd [
Horton v Sadler
Marley (UK) Ltd v Anderson [
Walkley v Precision Forgings Ltd [
Wall’s Meat Co Ltd v Khan [
No additional cases were cited in argument.
INTERLOCUTORY APPEAL from a decision of an employment judge sitting at Hull
By a judgment and reasons sent to the parties on 4 September 2014, the employment judge extended time for the presentation of a claim by the claimant, Miss S Gannon, complaining of unfair dismissal and disability discrimination by the respondent, Software Box Ltd. On 30 September 2014 the respondent appealed on the grounds that the employment judge erred in law in attaching a condition that the issue fee be paid or remission granted before a claim was validly presented, and in holding that it was not reasonably practicable for the claimant to have presented her claim within the three-month prescribed period, as she had done exactly that.
The facts are stated in the judgment.
Daniel Barnett (instructed by
The claimant was debarred from taking part in the appeal.
9 June 2015. LANGSTAFF J (PRESIDENT) delivered the following judgment.
1 This case raises the question whether a tribunal may allow an extension of time in respect of a claim for unfair dismissal notwithstanding that a claim of unfair dismissal has been made within the three months prescribed by section 111 of the Employment Rights Act 1996 but has subsequently been rejected for non-payment of fees by the tribunal.
2 Employment Judge Burton at Hull, for reasons given on 4 September 2014, in the somewhat exceptional circumstances of the present case, extended time for the lodging of both complaints of unfair dismissal and for money claims. The claimant, represented by counsel, conceded that the claim which the judge was considering was out of time.
The history3 The claimant was dismissed with effect from 4 October 2013. She lodged (I shall use that word for reasons which will become apparent) an application in respect of those claims on 24 December 2013, therefore within three months of her dismissal. On the same day she sent a formal application for remission of fees. She was in receipt of jobseekers’ allowance.
4 The application for remission was apparently not received by the Central Processing Unit (“CPU”) in Leicester, which has the administrative task of dealing with such claims. So the claimant sent a second such application on 13 February 2014 once she became aware of this. That claim was rejected by letter of 25 February 2014. The letter said that a fee was payable but it spoke of an “enclosed notice to pay” although no such notice was actually enclosed with the letter.
5 A second letter was sent by the CPU, which did enclose a notice to pay. But that was not sent to her at her home. It was sent to her legal representative, whose retainer had ended in January since she had been unable through financial circumstances to continue it.
6 The judge held that the claimant did not appreciate the full significance of the letter she had received. She made inquiry of the CPU on 4 April 2014. By then the date set out in the notice to pay had passed. Because the fee had not been received by that date the CPU had treated her claim as rejected on that basis. When she was told of this, she immediately borrowed the necessary fee, £250, from her brother and re-instructed her former representatives, who submitted the claim which came before the tribunal.
7 The judge plainly had considerable sympathy with the particular position in which the claimant was. This is a sympathy which is recognised by Mr Barnett in his careful submissions to me today, and entirely appropriately he has made the points which can be made for the claimant since she has been debarred from responding to this appeal. I should add that her brother has attended, coming all the way from South Yorkshire to do so, in order to tell me today that she intended no disrespect to the tribunal, that she would wish to proceed with the claim if possible but she has been very ill, and he has sat patiently throughout the hearing, although not participating, to demonstrate that she is not disengaged from the process.
The judgment8 The judge was concerned about the impact of the fees regime upon a claim in circumstances such as these. At paras 28–30 of his judgment he said:
“28. I conclude that although the Rules make no reference to the concept of a claim being ‘accepted’ the fact that rule 11”—that is, of the Employment Tribunals Rules of Procedure 2013—“talks about a claim being ‘rejected’ must mean that if a claim is not rejected by implication it is ‘accepted’.
“29. What was the status of this claim between 24 December 2013 and 12 March 2014?”—It was on that latter date that the time for payment of the fee expired according to the notice which the claimant never received—“At any time during that period if the fee had been paid or a remission application had been granted it would have been ‘accepted’, served and the action would have been normally progressed. I suppose that, strictly speaking, rule 11(1) suggests that the application should have been rejected on 24 December as it was not accompanied by a fee or a remission application. That, however, clearly did not happen until 12 March. As life can be breathed into a claim that has been presented but not ‘accepted’ by payment of the fee or the granting of remission so that claim can be irrevocably extinguished if the fee has not been paid or remission granted.
“30. I can only conclude that, although not expressed to be the case within any of the regulations, in fact a claim is not validly presented if it is capable of being administratively rejected without any right of recourse to the judiciary. In other words the payment of a fee or the granting of remission is an integral part of the process of a claim being ‘accepted’ and therefore validly presented.”
9 He then turned to ask...
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