England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 14th November 2001

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application is made by Mr Pettit on behalf of the applicant in the employment tribunal proceedings, Mr Jamie Shooter. The application for permission was first considered on the papers by Lord Justice Sedley on 23rd October 2001. He refused permission to appeal on the grounds that there was no error of law in the decision of the Employment Tribunal and that the Employment Appeal Tribunal had correctly dismissed the appeal by Mr Shooter at a preliminary hearing.
2. On this renewed application I have to be satisfied by the written and oral submissions made on behalf of Mr Shooter that he has a real prospect of succeeding in his appeal, bearing in mind that appeals only lie from an employment tribunal on questions of law arising from the proceedings before them.
3. The background to Mr Shooter's proceedings is this. From August 1998 until October 2000 Mr Shooter was employed by the respondent, Dorlux Beds Ltd, as an assistant accountant. On 10th October 2000 a disciplinary hearing was held because Mr Shooter was suspected of gross misconduct in connection with the disappearance of a sum of about £1,000. Mr Shooter has given two statements about what happened at the disciplinary hearing. In his first statement, signed on 10th April 2001, he said in paragraphs 4 and 5:

"4) I started my employment with Dorlux Beds Limited in August in 1998. I was dismissed from my employment with Dorlux Beds Limited on the grounds that some money had gone missing from the company. It was alleged that I was responsible for the disappearance of the company's money.

5) After the disciplinary hearing my employment was terminated by my employers on 10th October 2000. I was given a right of appeal against this decision."

4. Mr Shooter made another statement which he signed on 16th July 2001 in which he says at paragraph 3:

"I was informed of my summary dismissal after my interview with my employers on 10th October 2000. However, the confirmation of my dismissal was not received until on or about 13th October 2000. Upon receipt of the letters from my employers dated 11th October 2000, I immediately appealed against the decision to dismiss me."

5. The letter of 11th October, which was sent to Mr Shooter at his home address, is headed "Termination of your Employment - Gross Misconduct" and opens with these words:

"Please accept this letter as confirmation of the decision to summarily dismiss you from your employment with Dorlux Beds Ltd.

The reason for the dismissal is due to your act of gross misconduct in that we consider that you were probably responsible for the disappearance of approximately £1,000 cash, between the dates of the 26th September 2000 and the 3rd October 2000."

6. The letter refers in detail to the disciplinary hearing which Mr Shooter was asked to attend on Tuesday 10th October. The letter concludes:

"We consider your actions to be gross misconduct and as a result you have been summarily dismissed from the company with the effective date of termination of your employment being Tuesday the 10th October 2000."

7. He was then informed of his right to appeal against the decision.
8. Mr Shooter presented his complaint of unfair dismissal to the Employment Tribunal on 11th January 2001. In box 4 of the IT1 he gave the dates of his employment as from August 1998 to 11th October 2000. The company completed an IT3 stating the grounds on which they intended to resist the application. In box 5 the employer was asked:

"Are the dates of employment given by the applicant correct?"

9. Box "Yes" was ticked.
10. The matter came before the Employment Tribunal for hearing on 8th May 2000. The Employment Tribunal, sitting at Leeds, heard representations from a solicitor on behalf of Mr Shooter and from a representative on behalf of the company. In the extended reasons sent to the parties on 17th May 2001 it stated their unanimous decision that the complaint of unfair dismissal failed and was dismissed because the tribunal had no jurisdiction to hear the matter. The jurisdictional point arises from the provisions of Section 111 of the Employment Rights Act 1996 under which a complaint may be presented to an employment tribunal against an employer by any person who was unfairly dismissed by the employer. Subsection (2) provides:

"Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal -

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

11. It is also necessary to refer to Section 97 of the Employment Rights Act 1996 for the definition of the expression "the effective date of termination". Section 97 (1) (b) provides that the effective date of termination -

"in relation to an employee whose contract of employment is terminated without notice means the date on which the termination takes effect."

12. Having those provisions well in mind, the Employment Tribunal found that the application could not succeed because they had no jurisdiction to hear it. In paragraph 1 of the extended reasons the tribunal stated:

"The applicant worked for the respondent from August 1998 until 11th October 2000, when he was dismissed for suspicion of theft. He appealed but the appeal failed."

13. Pausing there, it seems clear from the documents that the tribunal must have taken the date of 11th October from reading the IT1 and the IT3, from which it appeared to be common ground that that was the effective date of termination. The tribunal went on in paragraph 2 to state:

"His application to this tribunal was received on 11 January 2001. This tribunal has to consider the effect of Section 111 of Employment Rights Act 1996 which makes it clear that the tribunal shall not consider a complaint of unfair dismissal unless it is presented to the tribunal within 3 months of the effective date of dismissal or within such further period as the tribunal considers reasonable where it is satisfied it was not reasonably practicable for the complaint to be filed in time. This application was filed one day late. If it had been received on 10 January 2001 it would have been in time."

14. The tribunal referred in their findings of fact to the circumstances in which suspicion had fallen on Mr Shooter. They referred to various visits which he had had to solicitors for legal advice in connection with his dismissal and a possible application to the tribunal and to the police enquiries which took place and resulted in a decision notified by police to Mr Shooter on 10th January 2001 that they were not proceeding. The tribunal concluded in paragraph 4:

"The tribunal finds that this application cannot succeed. If the applicant consulted solicitors about 8 times regarding his employment position, he and they had plenty of opportunity to file the application with the tribunal. It was certainly not impracticable for the application to be filed. The forms are fairly simple and the application was not even typed out but was printed. The fact that the application is only one day late has no bearing on the legal position if it was reasonably possible for the application to be filed in time. This is a case where it could have been filed in time if the solicitor dealing with the matter was doing his or her job properly. The tribunal therefore has no jurisdiction to deal with this matter. While this is no reflection on Mr Lyell, it is clear that the applicant has been let down by his lawyer. Certainly the opportunity existed for the applicant to have a fair hearing to satisfy the requirement of Article 6 but the opportunity was not taken."

15. The question for the Employment Appeal Tribunal to which Mr Shooter then appealed, was whether there was an error of law in that decision. A preliminary hearing was held at which the tribunal was addressed by counsel - not Mr Pettit - on behalf of Mr Shooter. The judgment of the Employment Appeal Tribunal dismissing the appeal was given, on behalf of the tribunal, by Mr Recorder Underhill QC. He identified the issues which arose, referred to the extended reasons and to a number of authorities and concluded by saying:

"It seems to us, therefore, that this appeal has no prospects of success, and we propose to dismiss it at this stage."

16. I have to decide whether there is an error of law in the decision of the Employment Tribunal which has a real prospect of success before the Court of Appeal. Mr Pettit has submitted that there is such an error because the tribunal failed to make any proper finding as to what was the effective date of termination and had not given proper reasons for their finding that the effective date of termination was 11th October. He pointed out that various alternative findings were possible if the matter were remitted to the Employment Tribunal for them to reconsider on the basis of the evidence. He said that if reliance was placed on the letter as bringing about the effective termination of employment then that could not have been received in the post earlier than the 12th and if that was the case the application to the Employment Tribunal would have been made within the three-month period. He accepted that another possible interpretation of the material was that the effective date of termination was 10th October, in which case he accepted that the application would have been presented even more out of time than by the Employment Tribunal's application of 11th October as the effective date of termination.
17. Mr Pettit's case was that no proper or full reasons were given by the Employment Tribunal for selecting 11th October. There had not been a proper consideration for the issue as to what was the effective date of termination. That was an error of law and therefore the case should be remitted for a re-hearing on the jurisdictional issue. Mr Pettit referred to the recent Court of appeal decision in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 and sought to distinguish it on the issue of whether a new point should be allowed to be raised for the first time on an appeal. Mr Pettit submitted that this was not a case of raising a new point as to the effective date of termination. That was a point considered by the Employment Tribunal. He said this was a case of properly considering the evidence before the Employment Tribunal, a duty which they had failed to discharge by not considering all the options open to them on the issue of effective date of termination and in not giving reasons for treating 11th October as the effective date of termination.
18. I am grateful for the oral submissions Mr Pettit has made. I have also read the written grounds of appeal in the appellant's notice and the skeleton arguments prepared by other counsel which are contained in the bundle. I have come to the clear conclusion, contrary to those submissions, that this is a hopeless appeal and that Lord Justice Sedley rightly refused permission.
19. The position is quite plain. I approach the Employment Tribunal's reasons on the usual basis that one does not apply a fine tooth comb in order to detect mistakes that there may be in the writing of the reasons. I approach the matter broadly by looking at the material which was before the Employment Tribunal and asking whether their decision on this question of jurisdiction was erroneous in law. On the material before the tribunal there was evidence from Mr Shooter that he was dismissed immediately following the hearing of the disciplinary tribunal on 10th October 2000. This was not a slip. It was a matter stated clearly in not one but two witness statements. Upon that basis - and I do not see how any tribunal deciding this question can be criticised for proceeding on the basis of the applicant's own evidence - he was out of time. The other possibility was the 11th October; that was the basis on which the tribunal proceeded. I find it
20. very difficult to see how the tribunal could be criticised - as being in error of law - for proceeding on a factual basis which appeared from the pleadings to be common ground between the parties. Mr Shooter stated in his IT1 that his employment terminated on 11th October and that was agreed to be a correct date by the employer and the IT3. On the basis that that was the correct date because it was not in dispute, the tribunal rightly reached the decision that the application was presented out of time. There is no appeal against their finding of whether or not it is reasonably practicable to present it before the expiration of three months.
21. In my view the tribunal were clearly correct on that, having regard to the evidence before them about the steps that Mr Shooter had taken to obtain legal advice in relation to his dismissal, before the presentation of the application.
22. In my judgment the position is most clearly stated as a matter of fact. I am satisfied that there is no error of law, let alone any injustice in this case. In the letter to Mr Shooter's solicitors it was made absolutely clear in the final lines of that letter that the company was taking the position that the effective date for termination of his employment was 10th October.
23. I find it impossible to say, having regard to the definition of "effective date of termination" in Section 97 of the Employment Rights Act, that there is any error of law in that statement. It seems to me that Mr Shooter should have proceeded on the basis, which he accepted in his witness statement, that was the correct date and if it is the correct date this application would be even more out of time than the time to appeal under the Employment Tribunal. The appeal has no prospect of success and I would therefore refuse the application for permission.
24. Are there any points to deal with arising out of that, Mr Pettit?
25. MR PETTIT: No, my Lord.
Order: Application refused