United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 321_90_2602

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BAILII case number: [1992] UKEAT 321_90_2602

Appeal No. EAT/321/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 26 February 1992

Before

THE HONOURABLE MR JUSTICE PILL

MR K GRAHAM CBE

MISS C HOLROYD

MRS C ROGERS APPELLANT

NORTHUMBRIA LEISURE LTD T/A BORDER TRAVEL RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR J WATT-PRINGLE

(Of Counsel)

Messrs Anthony T Bryson & Co

Solicitors

5/7/9 Grey Street

Newcastle Upon Tyne

NE1 6EE

For the Respondents MR M WEST

(Personnel Consultant)

Peninsula Business Services

Stamford House

361/365 Chapel Street

Manchester M3 5JY

MR JUSTICE PILL: This is an Appeal against the unanimous decision of the Industrial Tribunal sitting at Newcastle Upon Tyne on 25 April 1990, Mr B H Cato presiding, that it had no jurisdiction to consider the complaint of Mrs Carol Rogers. The ground of the decision was that the complaint

"was not presented before the end of the period of 3 months beginning with the effective date of termination and the applicant has not satisfied them [that is the Tribunal] that it was not reasonably practicable for the complaint to be so presented."

The relevant statutory provision is Section 67(2) of The Employment Protection (Consolidation) Act 1978 which provides that:

"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."

Mrs Rogers was employed as a manageress. The Respondents took over the relevant business of the travel agency in December 1988. They traded as Border Travel. In June of 1989 Mr Macklam, the Respondents' managing director, told the Applicant that the business was not doing well and that she would be made redundant. A letter dated 2 June 1989 was sent to her but she did not receive it.

On 30 June 1989 she received a memorandum from Mr Macklam which stated:

"Please find enclosed your final wage cheque for employment up to 30 June, 1989 which includes redundancy and holiday pay in respect of the termination of your employment at that date.

As you know there is a legal problem concerning the assignment of the lease. Would you please acknowledge below that a new term of temporary employment will commence on 3rd July, 1989 until the problem over the lease is resolved."

Mrs Rogers acknowledged the commencement of a new term of temporary employment commencing on 3 July 1989. She requested, but was not given, a copy of her terms of employment.

On 14 August 1989 Mr Macklam wrote to Mrs Rogers in the following terms:

"Owing to continuing problems in the assignment of the lease for Border Travel and the further downturn in business I have decided to close the office on 31st August 1989. I did however agree to give you one month's notice and will therefore pay you up to the 13th September, 1989, in respect of a full month's notice."

On receipt of that letter Mrs Rogers stopped working for the company. However, she made two subsequent visits to the office. Those visits were in September of 1989 as the Tribunal found. We will refer in more detail to those visits and the findings of fact about them.

The application to the Industrial Tribunal was made on 10 February 1990. It is common ground that it was made outside the relevant three month period from termination and substantially so. The evidence shows that in January 1990 Mrs Rogers discovered that the business was still operating. We need not for present purposes consider the circumstances which were the immediate cause of her application to the Tribunal. We only note that there is a dispute of fact as to whether the information relied upon came to her on 11 January 1990 as appears in the Chairman's Note, or on 31 January 1990. Mrs Rogers consulted a solicitor on 1 February 1990.

The Tribunal in their Reasoned Decision did not set out comprehensively their findings of fact. They note that they accepted the Applicant's evidence but drew attention to the fact that they had regard to evidence in cross-examination as well as to evidence in chief.

At paragraph 4 they set out in their own words what they described as the gravamen of the applicant's case:

"My employer represented to me that the premises had closed and as a consequence my position was redundant as a result of which I was to be dismissed for redundancy. This was a false representation because the premises did not close as had been represented to me and the dismissal for redundancy is therefore a sham."

Mrs Rogers' case is that it was only in January 1990 that she was aware and could reasonably be expected in the circumstances to be aware that the company were still trading. Her belief in September was that they were about to close and that was a belief reasonably held in the circumstances.

In DEDMAN v BRITISH BUILDING & ENGINEERING APPLIANCES LTD [1974] ICR 53 CA, Lord Denning M.R., considered the then relevant statutory provisions on this question. He stated at page 61 D:

"It is difficult to find a set of words in which to express the liberal interpretation which the English court has given to the escape clause. The principal thing is to emphasise, as the statute does, "the circumstances." What is practicable "in the circumstances"? If in the circumstances the man knew or was put on inquiry as to his rights, and as to the time limit, then it was "practicable" for him to have presented his complaint within the four weeks, and he ought to have done so. But if he did not know, and there was nothing to put him on inquiry, then it was "not practicable" and he should be excused."

It will be clear that the then relevant statutory provision was not in identical terms to the present one but Lord Denning introduced the concept of an employee being:

"put on inquiry as to his rights".

In PALMER v SOUTHEND-ON-SEA BOROUGH COUNCIL [1984] ICR 373 CA it was held:

"that "reasonably practicable" in section 67(2) of the Act should be construed neither so widely as to mean simply "reasonable" not so narrowly as to mean "reasonably capable physically of being done"; that, however, the meaning of "reasonably practicable" was expressed between those two limits, the answer to whether it was reasonably practicable to present the complaint within the time limit was an issue of fact for the industrial tribunal to determine in the circumstances of the case."

In his judgment Lord Justice May cited the statements of members of a differently constituted Court of Appeal in WALL'S MEAT CO LTD v KHAN [1979] ICR 52. Lord Denning M.R. stated at page 56:

"I would venture to take the simple test given by the majority in DEDMAN's case [1974] ICR 53, 61. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights - or ignorance of the time limit - is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences."

Lord Justice Shaw stated at page 57:

"It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs. The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive. Section 88 of the Employment Protection Act 1975 provides for appeal to the appeal tribunal only on questions of law."

Lord Justice Brandon stated at page 60:

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."

Mr Watt-Pringle for the Appellant, relies upon the statement of Lord Justice May in PALMER at page 385 B-F. Parts of this paragraph are also relied upon by Mr Martin West, Personnel Consultant, who appears for the employers.

"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an industrial tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's concilatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the industrial tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisers' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the industrial tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account."

Mr Watt-Pringle relies in particular upon Lord Justice May's statement "that in some cases the Tribunal may have to consider whether there has been any misrepresentation by the employer".

Mr West relies upon the reference in the paragraph, following earlier cases, to the principle that:

"at the end of the day the matter is one of fact for industrial tribunal taking all the circumstances of the given case into account."

That this Tribunal should intervene on matters of fact only when the Industrial Tribunal has either made an error in law or on the ground that its finding of fact was not a

"permissible option"

was recently underlined by Lord Donaldson M.R. in the case of PIGGOTT BROTHERS & CO LTD v JACKSON [1991] IRLR 309.

Mr Watt-Pringle relies particularly upon the case of MACHINE TOOL INDUSTRY RESEARCH ASSOCIATION v SIMPSON [1988] ICR 559 CA. At page 564 Lord Justice Purchas summarising the submissions of Counsel states that:

"one turns to see how the subjective state of mind must be approached."

Mr Watt-Pringle submits that the Industrial Tribunal have erred in law in failing to have regard to the Appellant's state of mind. In our view Lord Justice Purchas' approach to the question is encapsulated in his statement at page 565H of the judgment. Having referred to an earlier decision he stated:

"By that I mean that during the period of the three-month limitation there were crucial or important facts unknown, and reasonably unknown, to the employee which then became known as facts to her such as to give her a belief, and a genuine belief, that she had a claim to be brought before the industrial tribunal."

SIMPSON was subsequently cited in JAMES W COOK & CO (WIVENHOE) LTD v TIPPER AND OTHERS 1990 ICR 716. That was an employer's Appeal and it was held that there was material upon which the Industrial Tribunal could conclude that it was not reasonably practicable for the employees in that case to present their applications in the period immediately following the dismissal.

Lord Justice Neill cited the passage from the judgment of Lord Justice Brandon in KHAN to which we have referred and the passage in the judgment of Lord Justice May in PALMER. He added:

"In addition guidance is to be obtained from the decision of the Court of Appeal in MACHINE TOOL INDUSTRY RESEARCH ASSOCIATION v SIMPSON [1988] ICR 558. In that case it was accepted "reasonably practicable" had to be interpreted in a common sense and not a technical way, and that the subjective test of the employee's state of mind and knowledge had to be qualified by an objective test of reasonableness."

In his helpful submissions Mr Watt-Pringle submits that it was not permissible for the Tribunal to find that Mrs Rogers should have realised by 12 September that there was a permanent, or at any rate a long term continuation of the business. He submits that when she was dismissed, Mrs Rogers had every reason to believe that the business would close down, bearing in mind the information she was given by her employer.

The visits to the employer's premises were within a matter of days of the date, 31 August, mentioned in the letter to her and Mrs Rogers did, and could reasonably believe, that the business was going to close down. There was no reason, it is submitted, why at that stage she should have thought otherwise or made further enquiries and the relevant information only came to her by reason of a chance journey of her husband in January 1990.

Mr Watt-Pringle further submits that the decision of the Tribunal is insufficiently reasoned; they have failed to distinguish between a short-term continuation of the business in September and a possible longer term continuation. They have failed to have sufficient regard to the evidence. Mr Watt-Pringle has addressed us on the facts though properly and realistically accepting the strength of authority on the question of the Industrial Tribunal being the Tribunal of fact. He has referred to the flux, change and uncertainty, as he put it, in the employer's plans during the summer of 1989. He further submits that the passing of the fixed date of 31 August was not itself of much significance having regard to what happened during the visits to the premises in September 1990. The position would have been otherwise, he accepts, if the car journey had taken place say in early November 1989 and revealed that the business was still operating.

Mr West for the Respondents submits that the Tribunal were entitled to reach the conclusion they did. The continuation on 12 September of the business was wholly inconsistent with what had been stated in the letter and should at least have put Mrs Rogers on enquiry. The Tribunal were entitled to have in mind that Mrs Rogers was a manageress and knew the business and that the business was still operating on 12 September. Mr West naturally underlines that the Industrial Tribunal is the Tribunal of fact.

The Tribunal's decision is brief in its reasoning. However they do make a finding of fact, against the background of what they had stated earlier, that they had regard to the totality of the evidence of Mrs Rogers. In relation to the September visits they said that they accepted the Applicant's evidence in cross-examination. That involved a finding, which is not challenged, that the first visit to the office was in the early days of September and not in August and acceptance of Mrs Rogers' statement that

"Mr Macklam said he had had trouble with the lease but thought it worthwhile to continue trading."

The Tribunal went on to state that they:

"take the view that on that visit the applicant saw the business continuing after the date given in R7 [31 August] and therefore, as we put it, the factual grounds for the gravamen of her case were obvious to her on that visit. It was then reasonably practicable to present an IT1 based on her gravamen because it was within 3 months of 14 August. As we put it, in popular terms earlier, the second date for closure had been "missed"."

We do not find the terminology used by the Tribunal altogether easy. However there is a plain finding in that paragraph. They have set out at paragraph 4(a), in a way which is not challenged, how the Applicant put her case. They then find first that the Applicant stated that Mr Macklam thought it worthwhile to continue trading and second, that this was contrary to what she had been told in her letter.

The Tribunal go on to deal with the further visit which they find as a fact was on 12 September. That finding of fact is not challenged. In relation to that visit they stated:

"It will be obvious from our acceptance of those facts that what we have termed "the factual basis for the gravamen of her case" were also obvious to her on that visit on 12 September and this also was still within the 3 months of 14 August."

Mr Watt-Pringle has drawn attention to the lack of any specific finding as to the state of mind of the Applicant and he submits that the Tribunal's failure to deal expressly with that question contaminates their entire approach to the facts. While we have indicated that the terminology of the Tribunal and their reasoning is not as clear or as full as it might have been, we consider that they based their finding upon the question contemplated by Lord Justice Purchas in SIMPSON as to whether the continuation of the business was something which was "reasonably unknown" to her.

We should not, of course, construe Reasoned Decisions of Tribunals as we would a statute. We read the decision of the Tribunal as being a decision that in early September Mrs Rogers should at least have been put on enquiry as to her rights. In our unanimous judgment the decision which they reached was one which they were entitled to reach upon the evidence as found by them having regard to the contents of the letter (with its reference to 31 August), what Mrs Rogers saw and what they found that she was told upon her visit to the premises on 12 September.

In those circumstances this Appeal must be dismissed.