United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 575_92_0403, [1993] UKEAT 575_92_403

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BAILII case number: [1993] UKEAT 575_92_0403

Appeal No. EAT/575/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th March 1993

Before

HIS HONOUR JUDGE B HARGROVE OBE QC

MR J R CROSBY

MR J D DALY

MR E J R O'BRIEN APPELLANT

WEB-TECHNICS LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MS P KAUFMANN

(Free Representation Unit)

Free Representation Unit

13 Gray's Inn Square

LONDON, WC1R 5JP

For the Respondents MR C D STARTIN

(Company Secretary)

JUDGE HARGROVE QC: Mr O'Brien was made redundant. The effective date of dismissal being the 18th November 1991. He made an application to the Industrial Tribunal on the 21st February 1992. He was outside the 3 month time limit. He seeks the benefit of the escape clause because he received defective advice.

At first sight this would seem to be a simple case well covered by existing authority. Nothing could be further from the truth.

In July 1990 the Electrical Contractors' Association and the EETPU entered into a Joint Industrial Board dismissal procedure agreement. Under Section 65 of the Employment Protection (Consolidation) Act 1978, this type of agreement can be recognised and that recognition excludes participating members from the benefits, if that is the right word, of Section 54. This was recognised by Statutory Instrument 1105 of 1991, which came into force on the 1st June 1991. It is right at this stage to point out that that is not an Instrument which is readily available upon the open market, that is to put the matter neutrally, it appears not to be available readily from the Stationery Office. It cannot be found in any of the normal libraries. It can be discovered, apparently only, in the premises of the participating parties and in the House of Commons. I mention that because ignorance of that particular document is at the root of most of the troubles in this case.

Mr O'Brien was an electrician. He was not with the EETPU but with a breakaway union. He was told by his Trade Union representative that he had to proceed via the Joint Industry Board, that is the organisation set up to deal with those agreements which have contracted out, perfectly legally, from the 1978 Act. He was invited by that Board to complete an application form, this he did. I pause there to comment that it is mentioned, in fairly small type, who the two participants are to the agreement upon the form, that is no more than an indication not of the jurisdiction of the Board but who made the agreement. The form having been completed and returned to the Board, the Board sent it to the Respondents (the employers) who replied. Nothing more was heard until the 10th April 1992 when the Chairman of the Joint Industry Board gave a decision that Mr O'Brien's case did not warrant a hearing. That notification and decision was only produced as a result of a letter encouraging expedition from Mr Davison, Mr O'Brien's representative.

In fact the advice of the Trade Union official initially, and the decision of the Joint Industry Board were both mistaken in law. The position was that by reason of the agreement only those who were in the EETPU were entitled to the benefits of the agreement.

The Industrial Tribunal decided that it had been reasonably practicable for the application to that Tribunal to be made within three months. The Tribunal put in the forefront of their views the fact that the wrong advice had been given and that there was no such Order as appears in Statutory Instrument 1105 of 1991. In this the Industrial Tribunal was factually wrong. Such an Order as I have indicated did exist. This meant that although it was correct to say that Mr Davison did not give the right advice, but it was not the wrong advice for the reasons considered by the Industrial Tribunal. That to start with indicates a decision which must on its face be perverse, by that I mean an essential fact is plainly wrong and it is a fact upon which much of the decision turns, but it is only fair considering the manner in which this matter will have to be dealt with later to consider a little further what is the true situation as we see it at the moment.

It has been put forward before us that one of the matters which the Industrial Tribunal ought, had they made the right decision on the facts that there was such an Order, to have made was whether the Joint Industry Board, by first of all accepting an application; secondly by sending that application on to the employers; thirdly by actually adjudicating upon the matter, has mistakenly represented to Mr O'Brien that not only did they, the Joint Industry Board, have jurisdiction but also that that jurisdiction excluded the jurisdiction of the Industrial Tribunal. If the Tribunal, and it is not a matter for us, had reached that conclusion there are a number of other matters which would necessarily follow for its consideration.

At first sight the question could be asked, well does it really matter? What with the nature of the error of the advice given by Mr Davison. Leaving aside, for the moment, the apparently parallel representation by the Joint Industry Board, one can see the cases have moved some way from the snap judgment that wrong advice equals no excuse. In London International College v. Sen [1992] IRLR 292 this was a case where Dr Sen had been dismissed. The report set out in detail what occurred. I need only take this from it: that he had been informed by a member of the staff of the Industrial Tribunal and by his solicitor what was the date by which the application should go in. Both those matters were in fact erroneously reported to him. Mr Justice Knox and Tribunal decided at page 293 in the following way, in taking the appropriate view in this type of case of parallel erroneous advice:

"At the end of the day, in our judgment, the only issue of law that is thrown up Mr Nicholl's argument is whether it is a correct conclusion that, of necessity, the taking of advice from a solicitor makes it then and thereafter, absent any physical supervening circumstances, reasonably practicable to present the application in time. We are not satisfied that there is any such legal rule or conclusion to be drawn. In our view the question is every case is a question of fact. Obviously the taking of advice from a professional adviser is a most material circumstance to consider, but we adopt what was identified as a matter of very great significant by May LJ in the passage I have the the Palmer decision, that one of the matters for investigation was the substantial cause of the employee's failure to comply with the statutory time limit. In this case it is clear from the facts that have been found by the Industrial Tribunal that the two pieces of advice about the actual time limit that were obtained by the applicant were obtained very close one after the other in point of time, because the Industrial Tribunal says of the second lot of advice:

`At about the same time . . .'

and secondly, that the second lot of advice, from the member of staff of the Central Office, was obtained in order to check the time limit, about which erroneous advice had been given from the solicitor. The Industrial Tribunal in our view was entitled to put all those factors into the scale and to arrive at the conclusion which, as we read the decision, they did, that the substantial cause for the failure to be in time was a matter of fact, what was said by the member of staff from the Central Office; and once one arrives at that conclusion it does open the door in our view to a finding by the Industrial Tribunal that it was not reasonably practicable to present the complaint in time. On that basis we dismiss the appeal."

Our attention has also been drawn to Jean Sorrell Ltd v. Ryback [1991] IRLR 153, which deals simply with the case of wrong advice from an official of the Industrial Tribunal. But it is fair to point out that the approach of Mr Justice Knox also takes account of the fact that the way in which the advice is being given is from an organisation appointed in law to deal with this type of procedure.

It seems to us at least a possible view that in the case of the Joint Industry Board one has a parallel jurisdiction to which very similar considerations might, in the appropriate case, apply.

In our view therefore, there was an error of law, which proceeds from the error of fact. The appropriate procedure, in our view, is that this matter should be sent back to a tribunal differently constituted to consider a number of matters:

(1) Whether the excluded Joint Industry Board dismissal procedures agreement did apply to the Appellant.

(2) In what respect was Mr Davison's advice erroneous and misguided.

(3) Whether the Board, in wrongly assuming jurisdiction over the Appellant's unfair dismissal claim, and in communicating that assumption to him, impliedly represented that the Industrial Tribunal had no jurisdiction.

(4) Whether there were two identical misrepresentations made to the Appellant with respect to the jurisdiction of the Industrial Tribunal each one coming different source.

(5) Whether the Appellant relied upon the misrepresentation from the Joint Industry Board.

(6) Whether if he had so relied upon that misrepresentation it was reasonable for him to have done so without independently ascertaining the accuracy of the representation or advice.

(7) Whether it was reasonable so to rely the sole or substantial reason that the Appellant submitted his Originating Application out of time was because he did rely upon the Joint Industry Board's misrepresentation, and whether if that was the sole or substantial reason, it was in those circumstances reasonably practicable to submit the Originating Application in time.

For that reason we shall allow this appeal.