United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K J O'DONOVAN (Of Counsel) Messrs Martineau Johnson Solicitors St Philips House St Philips Place Birmingham B3 2PP
For the Respondents	MR J CLAY (Of Counsel) Messrs Pearson Rowe & Co Solicitors Doctor Johnson House 40 Bull Street Birmingham B4 6AF


 


MR JUSTICE WOOD (PRESIDENT): This is an Appeal by St Basil's Centre Ltd who were the Respondents before an Industrial Tribunal sitting at Birmingham under the Chairmanship of Mr Macmillan. The Applicant was Mr McCrossan complaining of unfair constructive dismissal. On the 12th July 1989 the Tribunal was deciding whether or not it had jurisdiction, in particular whether under the provisions of Section 67 of the Employment Protection (Consolidation) Act 1978 the Originating Application had been presented within the time limit.

That requires application of Section 67(2) which reads:

"Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or 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 the period of three months."

It is somewhat unusual wording but as a matter of practice an approach has now been worked out and the relevant dates for the purposes of this case are that the effective date of termination was the 23rd February 1989; that the last date for the presentation of the Originating Application was therefore, Monday 22nd May; that the application had been posted on Friday 19th May and was not received at the Central Office of the Tribunals until Tuesday 23rd May, so that it was one day late.

The Tribunal therefore needed to consider the matter under the second part of Section 67, subsection (2), whether it was reasonably practicable for the complaint to have been presented in time.

This is a problem that has been exercising industrial tribunals for some time. Before turning to the law it is perhaps right to have noted that the proceedings were heard before the Industrial Tribunal on the 12th July 1989, and it is only today that the matter comes before this Court. I have caused investigations to be made. There have been a number of applications for adjournments by the Respondent, there have been numerous letters written about his representation by solicitors and others and it was only in the Spring of this year that the case was ready to be presented for listing, otherwise it would have been heard in the Autumn of 1989.

The basic principles for the approach to this issue, as indeed the Industrial Tribunal directed themselves, are to be found in two cases; the first is Burton v. Field Sons & Co. Ltd [1977] ICR 106. That was a case, and one of the earlier ones, dealing with postal problems; this Court was presided over by the learned President, Mr Justice Phillips at that time. We do not need to look at the details of the facts, it is sufficient to distil the principle from two passages in the Judgement. At page 110, at H, the learned President says this:

"Accordingly the vital question is this: could the solicitors reasonably have expected the letter to be delivered in the ordinary course of post on the Friday? As we have indicated, the industrial tribunal do not deal with that question, nor, indeed, was the evidence presented to them on the subject complete. We have been invited to bring our own knowledge and experience to bear on this question, and we have been offered the knowledge and experience of the representatives of the parties. But a question of that kind is a question of fact and not one to be decided by speculation or guesswork.

Then they say later, at page 111, at D:

"For clarity, we repeat: the question is, could the solicitors reasonably have expected the letter to be delivered in the ordinary course of post on the Friday? If the answer to that is `yes', then in our judgment, unless some quite new circumstances are discovered, the case is one which falls within paragraph 21 (4) where it is not `reasonably practicable' for the complaint to be presented within the period of three months, with the consequence that it would be reasonable for the industrial tribunal to extend the time. It seems to us, though the details will depend on the parties, their advisers and the tribunal, that the tribunal require to hear evidence from the solicitors about their normal practice and expectation in these matters and, in particular, evidence from the Post Office. It is not a question of what can be guaranteed of the postal services; it is a question of what a reasonable solicitor would have expected, or might reasonably have expected, at the time, date and place in question."

The matter was considered further in a later case of Beanstalk Shelving Ltd v. Horn [1980] ICR 273, on that occasion it was Mr Justice Slynn presiding over this Court. Once again the facts are not material for our present purposes but that judgment emphasises at page 277 at F, the desirability of posting within good time. This Court says this:

"We cannot however leave this case without saying that it seems to us an extremely dangerous practice for applicants to industrial tribunals to leave the posting of their applications until the penultimate day. In future cases, if this matter is gone into, it will be open to tribunals to hear evidence as to what now is the reasonable expectation as to delivery, even of first class mail, which is posted at a particular time and on a particular day. It seems to us that tribunals ought to go into the question as to what time the letter was posted, and to investigate in perhaps rather more depth than was done in the present case what was the expectation of the parties."

then it refers also to Burton's case.

Quite recently there have been a spate of these issues and this Court considered the problems once again on the 12th March of this year, EAT/401/90, in the case of Birmingham Midshires Building Society v. Horton. In that case we cited the passages to which we have already referred from Burton and Beanstalk and also referred to two other cases that we had decided in this Court in recent times, late in 1990, we have this to say at page 4 at F:

"We have emphasized in those cases yet again the importance of not leaving matters until the last minute and we expressed the view that in these days it was probably not reasonable to expect that the first-class post will necessarily arrive the following day. It is important to remember that where one has important documents such as writs or defences or applications for industrial tribunals or notes of appearance, there are time-limits involved and particular attention must be paid to those time-limits. Industrial Tribunals and this Court have always looked upon those time-limits as important for a number of reasons, which we need not repeat here today but the fact remains that in the future it seems to us unlikely that Industrial Tribunals will merely accept the evidence that the Post Office will say, as they will always say and probably believe, that in 99 per cent of the cases the first-class post arrives the next day."

Then we go on to encourage tribunals to be fairly cautious about accepting broad evidence without particularisation. The burden of proof - a civil burden - is upon the Applicant.

In this present case the Tribunal were examining the Applicant's case, on two bases, the first that he maintained that he had no idea until very shortly before the date by which his application should be presented, that there were time limits. On that first ground the Tribunal disbelieved him. They had no hesitation in disbelieving him and they are quite satisfied that he was aware from the outset that these proceedings had to be commenced within a certain time and with the intention of causing maximum uncertainty and convenience to the Respondents he took a conscious decision to delay, until the last possible moment.

Secondly however, when it came to the question of the posting and the reasonable expectation they found themselves able to accept his evidence and to accept the evidence that he reasonably expected his application to arrive in time because posts from his mother in Strabane in Northern Ireland to Birmingham arrived the following day.

The Tribunal set out their findings; they cautioned themselves, that it is a matter for evidence and not for presumption; they look at that evidence, and having disbelieved him on the first matter, they accepted him on the second.

The case put forward by Mr O'Donovan today is that there was really no evidence upon which that conclusion could have been reached. The issue of the approach of this Court to decisions on fact by the industrial tribunal and the extent to which this Court can interfere on the basis of perversity has been considered very recently by the Court of Appeal in a Division presided over by the learned Master of the Rolls, in Piggot Brothers & Co Ltd v. Jackson reported in [1991] IRLR 309. The paragraph relevant to this matter is paragraph 17 where the learned Master of the Rolls says this:

"A finding of fact which is unsupported by any evidence clearly involves an error of law. The Tribunal cannot have directed itself, as it should, that findings of fact need some evidence to support them. The danger in the approach of May LJ is that an appellate court...."

and I interpose there, that was the view expressed by Lord Justice May in the case of Neale v. Hereford & Worcester County Council [1986] ICR 471 CA:

"is that an appellate court can very easily persuade itself that, as it certainly would not have reached the same conclusion, the Tribunal that did so was `certainly wrong'. The more dogmatic the temperament of the judges, the more likely they are to take that view. That is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self misdirection in law by the industrial tribunal. If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal is not a permissible option and has to be characterised as perverse."

It is at this point that we must confess that we take that guidance very much to heart because we all three have no doubt at all that had we been deciding this matter ourselves we would not have reached the same finding as the Industrial Tribunal. However, with that caution we must now look to see whether it could be said that this Tribunal who saw and heard the witnesses and had the advantage of assessing them, simply had no evidence whatsoever upon which they could act.

The situation was that the Applicant gave his evidence and the Tribunal say this in paragraph 7:

"Unsatisfactory though we found much of Mr McCrossan's evidence, this is not a case where he posted his originating application on the last possible day. On the face of it there was sufficient time between the 19th and the 22nd May for the document to arrive. We accept Mr McCrossan's evidence that he believed the letter would arrive in time and that he was not merely taking a chance. He held this belief because of the course of post with which he was familiar between Strabane and Birmingham which brought his mother's letters to him on the day after posting. It therefore seems to us, on the balance of probabilities, that the delay in presenting the originating application was outside Mr McCrossan's control."

then they refer to Section 67(2).

We find it quite impossible to say that that could not be construed as being some evidence upon which the Tribunal were entitled to act.

However, although we therefore will dismiss the Appeal, it occurs to us that there should be, if possible, some uniformity of approach throughout the Country by Industrial Tribunals on these issues of time limits and posting. These issues so often arise over week-ends. The date and the time of posting can be proved by the postmark, and that is where one starts; the receipt of the documentation is almost always noted by a stamp from the receiving office at the Central Office of Industrial Tribunals. The reasonable expectation therefore, is the issue which will arise often and in order to encourage uniformity it seems to us that it would be entirely reasonable for tribunals to look to see the guidance which is given in the Queen's Bench Division Practice Directions. In particular we look at Direction No.41, on page 193 of the second volume of the Supreme Court Practice. That Practice Direction which I will read to save others searching for it, is as follows:

"41. Service of Documents by Post: Ordinary course of Post (Order 65, Rule 5)

(1) Under Section 7 of the Interpretation Act 1978, service by post is deemed to have been affected, unless the contrary has been proved, at the time when the letter will be delivered in the ordinary course of post.

(2) To avoid uncertainty as to the date of service as from April 16th, 1985 it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was affected:

(a) in the case of first class mail on the second working day after posting;

(b) in the case of second class mail on the fourth working day after posting; `working days' are Monday to Friday, excluding any Bank Holiday.

(3) Affidavits of service shall state whether the document was despatched by first or second class mail if this information is omitted, it will be assumed that second class mail was used.

(4) This Direction is subject to the special provisions of Order 10, Rule 1-3 relating to the service of originating process."

That last paragraph is clearly of no materiality.

That gives some idea to what is thought to be a reasonable expectation, but if there is evidence to the contrary, in a particular situation, then it is upon the evidence rather than upon that general approach that industrial tribunals will of course be able to rely, and indeed should rely.

We do not, by saying this, intend to bind industrial tribunals in any way, but seek to assist uniformity of approach to this problem which does seem to be arising with great frequency.

This Appeal therefore, will be dismissed and the matter will therefore continue before the Industrial Tribunal.