United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 101_93_2804

Appeal No. EAT/101/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28th April 1993

Before

HIS HONOUR JUDGE J PEPPITT QC

MR R H PHIPPS

MR P SMITH

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CROWTHER HOMES LIMITED          APPELLANTS

MR J TYSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR A PHILPOTT

(Of Counsel)

Messrs Bannister Bates & Son

12-22 Northumberland Street

Morecambe

Lancashire

LA4 4AX

For the Respondent MRS SUE WIDDEN

(Representative)

Lancaster Citizens Advice Bureau

87 King Street

Lancaster

LA1 1RH


 


JUDGE J PEPPITT QC: This is an appeal from a decision of the Carlisle Industrial Tribunal made on the 15th December 1992. By that decision the Tribunal found unanimously that the Respondent's effective date of termination was the 7th July 1992 and secondly, that it was not reasonably practicable for him to have presented before the end of the period of 3 months from the effective date of termination his originating summons alleging unfair dismissal. Thirdly the Tribunal found, that that originating summons was presented within such further period as the Tribunal considered reasonable so that the Tribunal had jurisdiction to entertain the application.

The appeal of the respondent employers attacks not the finding that the effective date of the Respondent's employment was the 7th January 1992 but the second and third of the Tribunal's findings being their findings under Section 67(2) of the Employment Protection (Consolidation) Act 1978.

The facts can be stated shortly. The Respondent was employed by the Appellants as a site agent on Phase 2 of a development undertaken by the Appellants in Lancaster. He was dismissed, as we have indicated, from that employment on the 7th January 1992 the grounds of that dismissal being redundancy. The circumstances in which the dismissal took place are set out in paragraph 4 of the decision which we should read in full.

"The applicant was dismissed on 7 January 1992 and was told that he was redundant. He was given a month's pay in lieu of notice and received a redundancy payment within the next fortnight. He ceased work that day and was not required to work his notice. He was interviewed by Mr Brook, the Managing Director of the respondent firm and Mr R Mills, the Contracts Manager. The respondent is a firm of developers. The applicant at the time of his dismissal was Site Agent at Phase 2 of the respondent's development at Sulyard Street, Lancaster. He was the only employee on this phase as all the other work was sub-contracted. He was told that the phase had come to an end owing to lack of money and that his job was redundant. If more money became available he was told that he would be taken back and that they were sorry to lose him. He had been divorced the previous year and had to look after his children. He asked them whether his circumstances were the reason for the dismissal and they assured him that this was not so. Although he was suspicious he accepted this assurance. He believed that the respondent's fortunes would change and that he would be offered a job. He therefore did not bring any proceedings as he did not wish to prejudice his chance of being offered another job with the firm."

We interpose here that Mr Philpott submitted to us that where in that paragraph the Tribunal found that if more money became available the Respondent would be taken back and they were very sorry to lose him the Tribunal must, on a proper construction, be regarded as finding only that, he would be offered another job on Phase 2 of the Lancaster development. We are quite unable to accede to that submission. In our judgment within the four corners of paragraph 4 of the decision the Tribunal plainly indicated that if the Appellants' finances generally improved the Respondent would be taken back in whatever capacity might then be available. That construction in our judgment is re-inforced by the further findings in paragraph 8 of the decision, to which we shall refer in a moment.

On the 29th May 1992 the Appellants advertised in the Westmorland Gazette for the post of Site Manager to co-ordinate and supervise housing schemes in the North West of England. The Respondent applied for that post enclosing, with his letter of application, his current CV. Towards the end of June 1992 there was a telephone call instigated by Mr R Mills of the Appellants, who told the Respondent, on the telephone, that his application had been unsuccessful. The Tribunal found it unnecessary to make express findings as to precisely what was and was not said in the course of that telephone conversation, but did find expressly that in the course of it Mr Mills asked the Applicant about his circumstances. The telephone conversation was followed by a letter dated 7th July 1992, confirming that the Respondent had been rejected for the post.

Against that background the Tribunal, in paragraph 8 of its decision, came to the following conclusion.

"In order to be in time the application should have been received at the Central Office no later than 6 April 1992. It was not received until 11 July 1992. The reason for the delay was that while the applicant was suspicious of the reason for his dismissal and believed it was because he had children to look after, he had no evidence which could substantiate a claim that he had been unfairly dismissed in this respect. The respondent's failure to re-engage him notwithstanding its promises and the reference to his circumstances in the telephone conversation with Mr Mills led him to believe that his original suspicion was justified. We find that it was not reasonably practicable for the application to be presented until after this telephone conversation. The application was presented without delay following this telephone conversation and we therefore find that the Tribunal has jurisdiction to entertain this application."

Mr Philpott attacks this finding on a number of grounds. His submission, as to the construction of paragraph 4 of the decision, we have already dealt with. He based upon it a further submission that the Appellants broke no promise by refusing to offer the Respondents the job which became available on 29th May 1992. Mr Philpott also submits that there was no new fact in all the circumstances which affected the position following the telephone conversation which would have entitled the Tribunal applying Section 67(2) of the Act to extend the Respondents' time for the instigation of these proceedings for unfair dismissal.

The case turns on the use of the phrase "reasonably practicable" in Section 67(2) the full text of which reads as follows:

"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 now settled law that the phrase "reasonably practicable" should be interpreted liberally in favour of the employee. Further assistance of how that phrase should be construed appears from the decision of the Court of Appeal in Wall's Meat Co Ltd v. Khan [1979] ICR 52, at page 58C Lord Justice Shaw said this:

"In determining whether it was not reasonably practicable to present a complaint within three months of the termination of the complainant's employment, it is apt to consider the positive aspect of the problem. What essential conditions must obtain to render it reasonably practicable to present a complaint in due time?

The first of them must be that the complainant knows that he has a present claim. Good sense must reject the proposition that it is practicable to put forward a claim when the potential claimant does not know it exists; and logically it can make no difference if his ignorance is excusable or if it results from his own ineptitude or inertia. I cannot for myself see that the fault or the lack of it in the would-be complainant can be relevant factors in determining practicability. The stark issue is whether as a fact he knew or believed that he had a claim which could presently be pursued. That he might have known or should have so believed relates practicability to hypothetical considerations. This is, in my opinion, an incongruous connection. Practicability is to be determined by reference to actuality and not to what might have been."

The only other case to which we would wish to refer is a further decision of the Court of Appeal James W Cook & Co (Wivenhoe) Ltd v. Tipper & Others [1990] IRLR 386. That was a case where a number of shipyard workers were dismissed by their employers but believed credibly that there was a realistic prospect that they might be re-employed. Only later did it come to their knowledge that the shipyard at which they worked was to close down. Then, and only then did they present their complaints to an Industrial Tribunal. The Court of Appeal held, as it appears from the headnote, "that the employees' belief that work would pick up again was a relevant factor in determining whether or not it was reasonably practicable for the complaints to be presented within the statutory time limit. As has been emphasised in the authorities the expression "reasonably practicable" in Section 67(2) must be looked at in a common sense way. It is also clear from the authorities that whether or not it was "reasonably practicable" for an employee to present his complaint in time is a question of fact for the Industrial Tribunal and appellate courts should be slow to interfere with such findings." In that case the Court held that there was material upon which the Industrial Tribunal could have concluded that it was not reasonably practicable for the men concerned to present their applications within the three month period immediately following their dismissal.

It seems to us that at the date of his dismissal the Respondent entertained suspicions based on no evidence that he was dismissed because he was a single parent with young children. Those suspicions, as the Tribunal found, were allayed by the Appellants' assurance that this was not the reason for the dismissal. But those suspicions, in our judgment, were, as the Tribunal found, converted into a belief, founded on some evidence, when the Respondent applied for, and was refused the post advertised by the Appellants on the 29th May 1992 and when in the course of the telephone conversation informing him that his application for the post had been unsuccessful, Mr Mills asked the Respondent about his present circumstances. Those new facts were decisive in that they provided the Respondent for the first time with some evidence on which he could base his claim for unfair dismissal. We express no views upon the strength of that evidence but merely underline that until it came into existence there was none. It is common ground that once the Respondent acquired knowledge of the new circumstances he acted with admirable expedition.

A decision under Section 67(2) by a tribunal is a decision of fact. We can interfere only if we can detect in it an error of law or if we can say that the decision on the facts was perverse in the sense that no reasonable tribunal could have reached it. In our judgment this is not a case where the Tribunal misdirected itself in law, nor can we say that its decision was perverse.

In these circumstances, it seems to us that the inevitable conclusion is, that this appeal should be dismissed.