United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 932_93_0302

Appeal No. EAT/932/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 February 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS T MARSLAND

MR T THOMAS CBE

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MR R NAVARRO          APPELLANT

D P HARDY & COMPANY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR MAITLAND JONES

(OF COUNSEL)

E Rex Makin & Co

Whitechapel

Leigh Street

Liverpool L1 1HW

For the Respondents MR K SUTTON

(OF COUNSEL)

D P Hardy & Co

1st Floor

Imperial Chambers

62 Dale Street

Liverpool L2 5SX


 


MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal against a decision of the Industrial Tribunal held at Liverpool on 26 August 1993.

The reasons notified to the parties on 7 October, the Tribunal unanimously decided on a preliminary point that it had no jurisdiction to determine a complaint of unfair dismissal by Mr Raymond Navarro against a firm of solicitors, D P Hardy & Co. The reason for the Tribunal's decision was that the complaint had been presented by Mr Navarro to the Central Office of Industrial Tribunals after the expiry of the period of three months, beginning with the effective date of termination. The Tribunal was satisfied that it was reasonably practicable for Mr Navarro to present his claim before the end of the period provided by Section 67(2) of the 1978 Act and that the period should not be extended.

Mr Navarro was dissatisfied with the decision and appealed by a notice of appeal dated 15 November.

The background to the issue which arose on the preliminary hearing was this. Mr Navarro claimed by his application to the Industrial Tribunal that he was employed as a welfare rights advisor by the solicitors, D P Hardy & Co, from 1989 until 8 March 1992, receiving variable amounts of remuneration for working 40 hours or more a week. He stated in his complaint that it was not really established if he was self-employed or an employee, but it had now been adjudicated by the Contribution Section of the Department of Social Security that he had a contract of employment with D P Hardy. Because of those circumstances and medical problems he suffered throughout 1992 he considered that he had good cause for bringing a late claim for unfair dismissal.

In the notice of appearance the Respondents submitted that the Industrial Tribunal had no jurisdiction to consider the complaint because the Applicant was at all material times self-employed. He could not, therefore, complain of unfair dismissal. They attached to their notice of appearance a letter in support of the submission that Mr Navarro was considered to be both by himself, his accountants, the Respondents and the Inland Revenue to be self-employed. It is a letter written to D P Hardy & Co, dated 15 August 1991, from a firm of accountants dealing with Mr Navarro's affairs. The Accountants, K A Parkes & Co of the Wirral, wrote:

"We have been requested to attend to Mr Navaro's (sic) accountancy and income tax affairs. We understand that our client is employed by yourselves on a self employed basis as a Welfare Rights Adviser. Our client advises us that he commenced business in November 1988.

To enable us to prepare accounts for submission to the Inland Revenue we should be grateful if you would kindly provide us with details of payments made by you to our client for the periods 1st November 1988 to 31 October 1989 and 1st November 1989 to 31st October 1990.

In respect of the periods mentioned there is written in manuscript on the letter the figure of £10,920.00 for the year 1988/89 and the figure £28,690.00 for the year November 1989 to October 1990.

The matter came before the Industrial Tribunal, who set out details of the work which Mr Navarro did as a Welfare Rights Counsellor for D P Hardy & Co and recorded his contention that the relationship was one of employer and employee.

The Tribunal referred to the preliminary question which arose under Section 67(2) of the 1978 Act. That 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."

The complaint was presented just over nine months out of time. The question before the Tribunal was therefore this: did it consider that it was or was not reasonably practicable for Mr Navarro to present his case before the end of the period of three months?

The facts found by the Tribunal related first to his contention that he was not in a fit physical or mental condition throughout 1992 and into the beginning of 1993 to attend to his affairs properly. The Tribunal commented that his evidence did not support this contention. They recorded that it was not disputed that he had suffered an extremely distressing and serious complaint in 1992, that he was an in-patient at the hospital and had for periods been very ill. He was still receiving medication for his illness. However, there was other evidence which the Tribunal recorded relating to his position. They thought that his evidence on this point was contradictory.

The Tribunal came to the conclusion, having considered the medical position, that although, Mr Navarro had suffered a chronic and unpleasant illness, he was not prevented by it from presenting his claim that he had been unfairly dismissed in 1992 by the Respondent. It was clear that he was in a fit state to handle his affairs. In May 1992 he instructed solicitors to claim monies allegedly due to him from the Respondents.

There is no appeal on this aspect of the case. It is accepted by Mr Maitland Jones on behalf of Mr Navarro that the medical evidence was considered at length and no complaint can be made of the findings of the Tribunal.

The second ground was in relation to the unawareness of Mr Navarro of his rights. The position was emphasized in the Tribunal's decision that he was employed as a Welfare Rights Counsellor. The Tribunal said that it might reasonably be expected that he was well aware of an employee's rights under the Act and other legislation and of the time-limits for presenting claims. They also noted that he had instructed a firm of solicitors acting on his behalf in April and May 1992 to present a claim for money owing by the Respondent to him.

The Tribunal said that:

"Although ignorance of rights can, in certain circumstances, support a claim that it was not reasonably practicable to present a complaint within the time limit, the ignorance itself must be reasonable, not only the fact of it."

The Tribunal came to the conclusion, after considering the submissions and the evidence, that Mr Navarro:

"was familiar with the requirements relating to presentation of complaints of unfair dismissal by virtue of his job, and was also satisfied that it was reasonably practicable for him to have presented his complaint either within the three months time limit from the effective date of termination of the contract or within a very short period of time thereafter whereas in fact the applicant had done nothing until February/March 1993. Such a delay must be quite unacceptable ... and therefore the Tribunal unanimously decided that it has no jurisdiction"

At first sight an appeal against such a decision is unpromising. The cases hold that the question whether it was or was not reasonably practicable to bring a complaint within the three months' limit is a question of fact, against which there is no appeal. The right of appeal is confined to errors of law arising in proceedings before the Industrial Tribunal.

Mr Maitland Jones, in his submissions, made a number of points based on a well-known passage in the leading case on the interpretation and application Section 67(2). He cited a passage from the Judgment of Lord Justice Purchas in Machine Tool Industry Research Association v Simpson [1988] IRLR 212 at page 214, paragraph 19:

"... the expression 'reasonably practicable' imports three stages, the proof of which rests on the applicant. The first proposition relevant to this case is that it was reasonable for the applicant not be aware of the factual basis upon which she could bring an application to the Tribunal during the currency of the three-month limitation period. Mr Ouseley argues with some force that if that is established it cannot be reasonably practicable to expect an applicant to bring a case based upon facts of which she is ignorant. Secondly, the applicant must establish that the knowledge which she gains has, in the circumstances, been reasonably gained by her, and that that knowledge is either crucial fundamental or important - it matters not which particular epithet, if any is applied - to her change of belief from one in which she does not believe that she has grounds for an application, to a belief which she reasonably and genuinely holds, that she has a ground for making such an application."

Lord Justice Purchas adopted that formulation, adding that "it is an objective qualification of reasonableness ... to a subjective test of the applicant's state of mind".

Lord Justice Purchas stated, what is really a restatement of the first two propositions is: "that the acquisition of this knowledge had to be crucial to the decision to bring the claim in any event". That passage was not referred to in the decision of the Industrial Tribunal, but it does not follow from that that they erred in law. One has to look at what the Tribunal, in fact, did and the way they reasoned to their conclusion.

Mr Maitland Jones' main point was that the Tribunal had, in fact, failed to consider at all the chief reason for Mr Navarro's delay in making his application. The chief reason was that he mistakenly believed that he was not an employee of D P Hardy & Co and, therefore, believed that he could not make an application. This was clear, as his main reason, from the way in which he stated his complaint in the notice of application.

The Tribunal appears, he submits, to have considered the position of the complete ignorance of Mr Navarro and rejected that because of his position as a Welfare Rights Adviser. His real case was not that he was completely ignorant of the law of unfair dismissal or of the time-limits applying to it or of his rights. He case was that he believed, in good faith and on reasonable grounds, down to February 1993 that he was a self-employed person. However, in February 1993, that is just over two weeks before he issued his originating application, he became aware for the first time that he might not be regarded as a self-employed person for the purposes of the Social Security Contributions and Benefits Act 1992. He therefore was aware, for the first time, that he might have a claim against D P Hardy & Co on the basis that he was an employee, and not, as he previously thought, a self-employed person. The letter in question is a document which, we understand, was before the Industrial Tribunal, although not referred to in the decision.

The letter is addressed to Mr Navarro in general terms referring to the provisions of the Act, and to various tests evolved by the Courts for deciding whether somebody is employed or self-employed. The letter, on the second page, proceeds in a rather unusual fashion to refer to the recipient of the letter, Mr Navarro, in the third person. It says:

"In this particular case Mr Ramon Navarro ('the contributor') provided his personal services and skills within the overall operation of D P Hardy & Co ('the business'!). All work was obtained and provided by or through D P Hardy, business contracts were made between D P Hardy and individual clients, payment for work performed was made to D P Hardy, and all business was conducted under the D P Hardy banner. Mr Navarro was paid by D P Hardy for his services to D P Hardy clients.

Mr Navarro had no opportunity to profit from his own efforts outwith the performance of the business, nor did he risk any significant financial loss. He operated as a specialist within the business (servicing its clients) rather than as an independent trader working on his own account (seeking his own clients). He could not be said to be a wholly independent contractor.

The contributor was an integral party of the business. He was responsible for a department (Welfare Rights) within D P Hardy & Co and had some managerial or supervisory duties in relation to D P Hardy employees.

The business retained the right to overall control of Welfare Rights work, and - in particular - was responsible for dealing with any complaints and for correcting any unsatisfactory work.

In the light of all these factors in the working relationship between D P Hardy & Co and Ramon Navarro I consider that the weight of evidence shows that there is/was a contractor of service."

It finishes by saying that:

"Please note that for this type of occupation the Agency and Inland Revenue rules are not the same. National Insurance contributions and income tax may therefore be payable on a different basis."

The letter is a strange document. It does not appear either from the letter itself or from any evidence produced as to how it came into existence or from whom the various facts relating to Mr Navarro's relationship with D P Hardy & Co were obtained.

The relevant matter, emphasized by Mr Maitland Jones in his submissions, was that until Mr Navarro received that letter, he was ignorant of a particular fact. The particular fact of which he was ignorant was that he was, or might, in certain circumstances, be regarded as having the status of an employee. That previous ignorance was credible and reasonable, since everything down to the receipt of that letter pointed to him being a self-employed person. But, having now learned of a fact of which he was previously ignorant, he could argue before the Industrial Tribunal that he had a case. The first thing he did was to lodge his complaint within a reasonable time. Therefore, it is argued that it was not reasonably practicable for him to bring his case within the three months or, indeed, until after he had received this letter. Only after he had received this letter was he aware of a fact relevant to his claim.

That is the main argument. We are unable to accept it. As was emphasized by Mr Sutton in his submissions, the burden is on the applicant in these circumstances to adduce evidence before the Tribunal and to obtain findings of fact relevant to the question of reasonable practicability. The Tribunals's findings of fact on the material put before it are not appealable. This Tribunal only has jurisdiction on questions of law.

The facts established by the hearing before the Tribunal were that Mr Navarro was aware that there was an issue as to whether he should be regarded as employed or self-employed. This matter received his attention and that of his accountants in August 1191. The letter of that date, written to D P Hardy & Co, was clearly written in the knowledge that a decision had to be made as to whether Mr Navarro was to be treated as employed by D P Hardy & Co, as an employed person, or whether he was to be regarded as a self-employed person.

If one goes to the test which is enunciated by Lord Justice Purchas in Machine Tool Industry Research Association v Simpson the first matter which has to be asked is whether it was reasonable for Mr Navarro not to be aware of the factual basis on which he could bring an application to the Tribunal within the three months' limitation period. He was aware of the factual basis on which he could bring such an application during the three-month period. The factual basis on which he could bring such an application was that he was an employed person. A decision must have been taken by him not to bring such an application in the circumstances. The receipt of the letter nine months' later added nothing to his awareness of the basis on which he could bring an application.

For those reasons we find that there is no error of law by the Tribunal. This was a case in which it was reasonably practicable for Mr Navarro to have brought his case within the three-month period.

There were other points made by Mr Sutton, which reinforce the correctness of the decision. In particular, the reference, at several points in the decision, to the fact that within the three-month period Mr Navarro had instructed a firm of solicitors in connection with a monetary claim against the Respondents. We say no more about that since, in our view, it is sufficient to rely on the above matters for the purposes of dismissing this appeal.

The appeal will, therefore, be dismissed.