Beasley v National Grid

The Court of Appeal (Wall LJ) considered an oral renewal of permission to appeal against the Employment Appeal Tribunal's dismissal of an appeal from an Employment Tribunal chair who held that the claimant's ET1 was presented out of time under section 111 of the Employment Rights Act 1996. The applicant's ET1 was submitted by email 88 seconds after the three-month time limit expired. The primary legal issues were whether the chair had properly applied section 111(2) (including the "reasonably practicable" limb), whether her reasons met the requirement identified in Meek v Birmingham City Council to explain why a claim was excluded for want of jurisdiction, and whether it was permissible to "read between the lines" as in Retarded Children's Aid Society v Day.

Wall LJ concluded that the applicant had arguable points: the chair's reasons were sparse and did not expressly use the words "reasonably practicable", and it was arguable she had not taken all material matters into account or given a Meek-compliant explanation. For these reasons Wall LJ adjourned the application for permission to appeal to a full three-judge court for substantive consideration rather than finally refusing permission.

Background and parties: The appellant, Mr John Beasley, was dismissed by his employer, National Grid, with an effective date of termination taken as 7 February 2006. He sought to bring an unfair dismissal claim and filed form ET1 by email just after midnight on 7 May 2006; the three-month period expired at midnight on 6 May 2006.

Procedural posture: The Employment Tribunal Chair at Reading held that there was no jurisdiction because the form was presented out of time under section 111 ERA 1996. The Employment Appeal Tribunal (Silber J) dismissed the appellant's appeal, and permission to appeal to this court was initially refused on the papers by Pill LJ. The appellant orally renewed his application for permission before Wall LJ.

Facts relevant to the application:

• The appellant appealed his dismissal and raised grievances; he received varying advice about time limits from solicitors and ACAS.
• He attempted to submit ET1 on 6 May but encountered technical difficulties with the Adobe PDF form and mis-typed the Tribunal email address (typing "qsi" rather than "gsi"). A rejection was received; a test message was successfully sent at 23:57 and the completed form was sent at 00:00 on 7 May but was received by the Tribunal at 01:28 on 7 May.

Issues framed: (i) whether the Tribunal chair properly considered whether it was "reasonably practicable" for the claim to be presented within three months under section 111(2) ERA 1996; (ii) whether the chair's reasons were Meek-compliant (sufficiently explanatory to show all material factors were considered); (iii) whether it was legitimate to "read between the lines" of the chair's decision as permitted by authority such as Retarded Children's Aid Society v Day.

Court's reasoning and disposition: Wall LJ recognised that the chair did not expressly state the words "reasonably practicable" and that her reasons were brief, although Silber J had read them as implicitly addressing the point. Given the extreme factual circumstances (only 88 seconds late, good faith efforts, technical difficulties and conflicting advice), Wall LJ considered there to be an arguable error of law in the chair's reasoning and in the EAT's disposition of that argument. For reasons of access to justice and because the issues raised a point of some wider importance, Wall LJ adjourned the application for permission to appeal to be heard by the full court (three judges), with directions for a substantive hearing if permission is granted. Wall LJ noted the risk of costs to the appellant if the appeal failed.

Permission to appeal was adjourned to the full Court of Appeal (three-judge court) for substantive consideration. Wall LJ concluded the appellant had arguable grounds (including that the tribunal chair had not given a Meek-compliant explanation or expressly addressed the "reasonably practicable" limb of section 111(2) ERA 1996) and that the extreme facts (ET1 88 seconds late, technical problems and conflicting advice) warranted fuller consideration by the full court rather than a summary refusal of permission.

The Employment Tribunal at Reading (Chair: Mrs J. Hill) held the ET1 was out of time and declined jurisdiction. The Employment Appeal Tribunal (Silber J) dismissed the appellant's appeal against that jurisdictional decision (decision dated 6 August 2007) and on 13 September 2007 refused permission to appeal to this court. Pill LJ refused permission to appeal on the papers on 22 November 2007. The appellant renewed his application orally before Wall LJ on 18 January 2008; Wall LJ adjourned the application for permission to appeal to the full Court of Appeal for substantive consideration.