United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 190_93_0906

Appeal No. EAT/190/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th June 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS T MARSLAND

MISS A P VALE

---

MR F R SPRAGG          APPELLANT

TEXAS HOMECARE          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant THE APPELLANT

APPEARING IN PERSON


 


MR JUSTICE WOOD (PRESIDENT): This is an appeal, by way of a preliminary hearing, by Mr Spragg from a finding of an Industrial Tribunal sitting at Southampton under the Chairmanship of Mr Trickey, who on the 8th January 1993 decided that it did not have jurisdiction to hear his claim for unfair dismissal on the grounds of redundancy. They found that they did not have jurisdiction because the Originating Application had been filed out of time, they applied the provisions of Section 67(2) and felt that is was reasonably practicable for that to have taken place.

Mr Spragg after receiving the Full Reasons applied for a review. That was refused. We also have before us the Full Reasons of the learned Chairman in refusing that application for review.

The nub of the problem before the Tribunal was to decide the effective date of termination of Mr Spragg's employment by Texas Homecare. They decided that it was the 31st March 1992. As the Originating Application was dated 4th August 1992 it was out of time. Thereafter they considered the question whether it was reasonably practicable for the complaint to have been presented within time and found against Mr Spragg. Although they say they had some sympathy with the position in which he found himself.

Mr Spragg, before us, takes two points. First of all he submits that the Tribunal were wrong in finding that the relevant date was the 31st March and he must say, in effect, as it is a finding of fact, that the decision was perverse. In other words, there was no evidence to support that finding or that the finding was so contrary to the evidence that it was wholly illogical as such.

His case as he presented it to us was that in a "leaver's form", which was one of the proforma used by the Company, the date of leaving had been put originally as the 12th May 1992, although the last day worked had been marked as the 31st March 1992, and that certain other sections of the document had not been completed. Whereas, subsequently, the 12th May date had been altered to the 31st March and other details had been inserted in connection with a payment in lieu of notice. Mr Spragg was arguing that the Tribunal failed to take that alteration sufficiently into account and that that was a contract between himself and the Company.

The Tribunal undoubtedly considered both those facets. They did so in particular, although they mentioned it in the main decision, but in particular in the decisions rejecting the application for review. In paragraph 2 and 3 there is an expansion on the findings in the main decision. The Tribunal point out, so far as the "leaver's form" is concerned, that it was made clear at the beginning of the hearing that the form had been altered and the Tribunal found that the Company was quite open about this. Indeed, if one looks at the Notice of Appearance it is quite clear that the Company did not accept the suggestion in the Originating Application that the relevant date was the 12th May. The Tribunal look at this, they say that this alteration did not prejudice the case because they did not specifically rely on that document; that matter was before them and considered. We can find no error of law on that score. But paragraph 3 of that same review decision shows that there was a substantial amount of oral evidence in which it was clear that at a meeting it had been made quite apparent to Mr Spragg that whatever he might wish he was being made redundant immediately and therefore that he was not to come back. He wanted to go on working, but they said "no". There the finding is that the relevant date was the 31st March 1992.

We are quite unable to find any error of law in that decision on that question of fact. There was ample evidence to support it and the Tribunal were entitled, and indeed in our judgment they really had to, on the evidence, decide that the relevant of the termination of employment was the 31st March 1992.

The second point raised by Mr Spragg is that the Tribunal failed properly to understand the decision in R J Dedman v. British Building & Engineering Appliances Ltd [1973] IRLR 379. That was a decision of the Court of Appeal, Lord Denning, the Master of the Rolls, Lord Justice Stamp and Lord Justice Scarman as he then was. The submissions made there concerned the immediate termination, a similar issue to that in the present case, and secondly to the consideration of the latter part of Section 67(2), namely the phrase "reasonably practicable". The principles there set out have been applied by this Industrial Tribunal and we are unable to find any error in the application of Dedman to the facts of this case.

The Tribunal had sympathy, we have sympathy with Mr Spragg, but the situation is this that he did not comply with Section 67(2) and as a result of that and the time limitations, the Tribunal were bound to find that it had no jurisdiction to hear his case. There is no error of law this appeal must be dismissed at this juncture.