Wandsworth persuades High Court to declare employment judge ruling "perverse"

The London Borough of Wandsworth has managed to persuade the High Court to take the rare step of declaring that a ruling by an employment judge was perverse.

In London Borough of Wandsworth v Covent Garden Market Authority [2011] EWHC 1245 QB, the council appealed a decision of Employment Judge Taylor granting the Covent Garden Market Authority an extension of time in which to appeal the issuing of ten improvement notices served by Wandsworth under s. 21 of the Heath and Safety at Work etc. act 1974.

The background to the case was a series of accidents at the market during 2009 and 2010 where pedestrians were injured by forklift trucks. Wandsworth had “serious concerns” about the management of traffic at the market, and in particular the failure adequately to separate pedestrian and vehicle traffic.

The first accident was on 3 August 2009. On 3 August 2010, Wandsworth invited CGMA to attend a Police and Criminal Evidence Act (PACE) interview, proposing it take place on 29 September 2010. The market authority’s solicitors asked for the interview to be put back because the partner dealing with the case would be abroad. On 17 September, CGMA agreed to attend an interview on 11 October.

On 14 September, Wandsworth served the ten improvement notices, which related to traffic management at the site. The time for sending the notices of appeal to the Employment Tribunal expired on 5 October 2010. CGMA did not send the notices of appeal or apply for an extension of time before the expiry date. Instead it sent the notices of appeal on 14 October – nine days out of time.

Employment Judge Taylor held that CGMA was capable of submitting the appeals within the time limit provided for. However, she also decided that it was not reasonably practicable for the market authority to issue the appeal notices in time because there was a pending PACE interview.

The judge did not explain her reasoning for this decision, other than to say that “the fact that the improvement notices could be used in evidence in criminal proceedings was a reason for CGMA to proceed with some caution”.

Wandsworth appealed to the High Court, on the basis that it was clear that it was the market authority’s choice not to lodge its notices of appeal until 14 October. If CGMA had wanted to consider whether appeals were necessary after the interview had been held, it could have lodged the appeals in time and if necessary applied to adjourn them pending any such decision.

The market authority argued that the original ruling should be upheld for a number of reasons, including that it was reasonable for CGMA to delay before serving notices of appeal until after the interview because the interview could have given it a better understanding of the council’s position. Employment Judge Taylor had taken a common sense decision, it was argued.

In the High Court Mrs Justice Slade said an appellant seeking to challenge an employment judge’s decision on the grounds of perversity faced a high hurdle.

Case law had set out that whether presentation of a claim in time was “reasonably practicable” was pre-eminently an issue of fact for the Employment Tribunal, the judge said. The Tribunal would investigate the substantial cause of the failure to meet the time limit – relevant factors would include whether the employee was being advised at any material time and, if so, by whom.

Mrs Justice Slade rejected the Employment Judge’s reasoning as to why it was not reasonably practicable for CGMA to comply with the time limit.

She said: “With respect it is hard to see why appealing against the improvement notices could adversely affect CGMA in resisting criminal proceedings. Rather, issuing such notices of appeal could be seen as acting consistently with contesting criminal proceedings.

“In my judgment no Employment Judge properly directing herself could properly have concluded on those grounds that it was not reasonably practicable to present the notices of appeal in time.”

Mrs Justice Slade pointed out that CGMA had had legal advice, was not ignorant of the time limit within which to appeal the improvement notices and did not lack the resources to do so. The delay resulted from the market authority’s decision to give precedence to the PACE interview and to see if relevant material would be learned from it, she said.

The High Court judge added that there was no evidence the work done on the PACE interview inhibited work on the notices of the appeal. It was also clear that the purpose of the interview was to talk about the incident on 8 August 2009, and not to hold a general discussion of the improvement notices.

Philip Hoult