Helen Moizer successfully represented the Claimant in an appeal to the Employment Appeal Tribunal (“EAT”) and was instructed by the Free Representation Unit on a pro bono basis. “The FRU and Ms Moizer, who has appeared pro bono and clearly put many hours into her preparatory work, are to be commended for the valuable contributions and pro bono support they have provided to their client” (!)
The judgment has recently been published: https://assets.publishing.service.gov.uk/media/64cd20ea3c4564000d942a83/The_Sports_PR_Company_Ltd_v_Ms_V_Londono_2023__EAT_110.pdf
Facts
The Claimant was a litigant in person who put in a claim for unpaid wages to the Employment Tribunal (“ET”). On the ACAS Early Conciliation Certificate, she correctly identified the employer by its corporate name. In box 2 of the claim form, however, in the space for the name of the employer, the Claimant put the name of a director of the company.
Judge Clark rejected the claim under rule 12 because of the discrepancy between the name of the respondent on the ACAS Certificate and the name given in box 2. Once alerted to this fact, the Claimant rectified this mistake by confirming the corporate name of the Respondent. The judge then treated the claim on reconsideration under rule 13 as validly presented, but, because she considered her original decision to be correct, the claim was treated as presented only when the error was corrected. As a result, it was presented out of time.
At the full merits hearing, Judge Burns decided that the error the Claimant had made was reasonable, as the claim form box can be ambiguous to a litigant in person and she had rectified her mistake as soon as she became aware of it. It was decided it was therefore not reasonably practicable for her to have presented her claim in time, and time was extended.
Appeal
The Respondent appealed the ET’s decision to the EAT on a perversity challenge, stating that the ET erred in its decision to allow time to be extended.
Ms Moizer submitted that it is well established that decisions on whether it was not reasonably practicable for a claim to have been presented in time and/or whether it has been presented within a further reasonable time period, are essentially matters for the appreciation of the tribunal, making findings of fact. That decision could only, if at all, be challenged on perversity grounds or if it was not “Meek-compliant” (that is, did not contain sufficient reasons).
The EAT agreed and held that the ET’s decision was a finding that the tribunal was entitled to reach. It did not err in doing so and the appeal on the time point therefore failed.
HHJ Auerbach did however allow the Respondent to raise one challenge, which was upheld, as the ET failed to take account of the three-day waiting period at the start of a period of sickness, before entitlement to SSP arose.
Points of interest
Rule 12 and 13 and the reasonably practicable test
The Respondent was a litigant in person, who put in a late skeleton argument and did not attend the EAT hearing. However, on reading their pleadings, HHJ Auerbach raised a point at the hearing on their behalf. He questioned that if a claim that, in light of Judge Clark decision under rule 12, fell to be treated as out of time, then, in light of Judge Burns’ decision, fell to be treated effectively as if it had been presented in time, was the practical effect of Judge Burns’ ET decision to reverse the effect of Judge Clark’s decision?
HHJ Auerbach agreed with Ms Moizer’s submissions that the ET was concerned with applying two different tests in different contexts and on different occasions. The EAT concluded that Judge Clark considered on paper, first the provisions rule 12, and then those same provisions in her reconsideration decision, subject to rule 13. Judge Burns then was considering the application of a different legal test, being the two-stage “not reasonably practicable” and “further reasonable period” test.
HHJ Auerbach added that it would have been open to Parliament, to provide that if the effect of decisions under rule 12 and rule 13 was in a given case that a claim was treated as presented out of time, then there could then be no further consideration of an extension of time under the different substantive provisions of the 1996 Act relying on the same facts. However, it did not so provide.
Costs
As of 28 June 2022, the EAT can make pro bono costs orders under section 194A of the Legal Services Act 2007. Costs were sought by the Claimant in this matter as it was argued the appeal was misconceived from the outset and there had been unreasonable conduct by the Respondent.
HHJ Auerbach however confirmed that the EAT’s approach must be exactly the same as it would be if this had been an application for actual costs by a paid representative. The judge therefore declined to make a costs award, stating it does not automatically follow that an unsuccessful appeal was unarguable and although there were defaults in the Claimant’s preparation of the appeal, regrettable though they were, it was not appropriate for these to sound in an award of costs.
It is recognised that the ET/EAT do not award costs lightly, however it is helpful that HHJ Auerbach confirmed that the conditions under s.194A would have enabled him to make such an award if he was inclined. This is a positive step for those seeking pro bono costs awards at tribunal level.
