United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 123_94_2206

Appeal No. EAT/123/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 June 1994

HIS HONOUR JUDGE J HULL QC

MISS A MADDOCKS

MR A D SCOTT

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MISS J MORAN          APPELLANT

MRS J HUDSON T/A SMILES FOR HAIR          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN

PERSON


 


JUDGE HULL QC: This is an appeal by Miss Moran against a decision of an Industrial Tribunal, of which a little more in a moment. Miss Moran began work on April 4 1990 and her employment ended on July 5 1993. That was after she had been unwell. Eventually on July 5 her employer dismissed her. That, it appears, was after several periods off work. Miss Moran wrote in her application to the Tribunal that she had had several sick notes and she said that Mrs Hudson, her employer, asked to see her at the shop. She handed her a letter saying:

"... that if I did not return to work after my sick note ended on 5 July my employment with her at Smiles", [that was the name of the business] "will be terminated. I returned to my doctors and my doctor gave me another sick note ..."

and so on. She tells the story about that. Then she says:

"I am sorry this application to an Industrial Tribunal is late by two days." [She is quite right about that] "This is because I have applied for legal aid through my Solicitors (David Hurley Associates) .... as I wanted to take my ex boss Mrs Joyce Hudson to Court. This was refused, so I applied back to the Legal Aid Board to appeal. I have been waiting several weeks for a reply from my Solicitors. Yesterday I received a phone call saying my Legal Aid has been refused again, so my Solicitor could not represent me in Court. My Solicitor gave me your address and told me to collect an application form, for an Industrial Tribunal from the Job Centre. She also said that I had to do it that day as it was the last day. This is the earliest time I could fax this to you.

I have hardly had any time off for sicknesses in the three years I have worked for Smiles, so this was a complete shock to me, and quite un-founded in my eyes for them to dismiss me in this manner."

Now if we are to explain matters we must refer to the statute which deals with these matters. That is the Employment Protection (Consolidation) Act 1978 and under that any person who alleges they have been unfairly dismissed, as Miss Moran does, is entitled to complain to an Industrial Tribunal, that is provided by the Act itself and it says under Section 67:

"(1) A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer." [That of course applies to a lady as it does to a gentleman].

"(2) Subject to" [something that does not arise here] "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 effective date of termination, which is a technical term employed there, is defined by the Act itself and Section 55, sub-Section (4) says:

"In this Part "the effective date of termination" -

"(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires;

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect."

The complaint had to be presented, unless it was not reasonably practicable to do so within three months, beginning with the date of the effective date of termination. Now Miss Moran said in her application to the Industrial Tribunal that the effective date of termination, when her employment ended, was on July 5 and, as I think she recognises herself, that meant that the last date on which her complaint could be presented to the Industrial Tribunals through the Central Office was 4 October, because time starts on the day of the dismissal and that is included in the calculation. So the three months elapses on midnight on the 4th. I think she tried to put in on the 5th and indeed it was originally stamped the 5th, but that was obviously a mistake; they forgot to put the date stamp on, something of that sort. It was eventually effectively stamped on the 6th. So she was two days late.

As the Act makes quite plain the time limit is a strict one, it says not that the industrial tribunal may decline to hear it unless it is presented within three months, it says that it shall not entertain it unless it is presented within three months; unless the Tribunal is satisfied that it was not reasonably practicable to present it within that three months.

The matter came before the Industrial Tribunal and they have made a summary decision on the matter. The Tribunal sat at Southampton on the 7 January under Mr Hollow, with his two Industrial Members, and they held that it was reasonably practicable for the application to be presented within three months. Their summary reasons are given at page 6 of our bundle, they say:

"The applicant was employed by the respondent from 4 April 1990 to 5 July 1993. She was dismissed without notice on 5 July 1993 although payment was made in lieu of notice. The effective date of termination of her employment was 5 July 1993."

Then they set out the questions which I have been talking about. Then they say:

"The applicant, accompanied by her mother, consulted Solicitors very shortly after the termination of her employment. They sought general advice as to her position and the remedies which might be available to her. Neither the applicant nor her mother were aware that they could lodge an application to the Tribunal without the assistance of a Solicitor, they were not aware that there was a time limit for so doing."

Pausing there, unless the Solicitors were quite sure that they were going to deal with it themselves, it was of course their duty to advise Miss Moran, and her mother, about the time limits and how they could apply.

"On the advice of the Solicitor an application for Legal Aid was submitted to enable the applicant to take proceedings ..."

It appears to us, if that is correct, that that advice was wrong. Legal Aid is not available in Industrial Tribunals to people who complain of unfair dismissal: so it sounds as though that was wrong advice.

"The applicant's mother was advised by the Solicitors during the course of a telephone call on 5 October 1993" [when it was already too late to present the complaint] "that Legal Aid had been refused" [apparently they did not say why but the obvious reason would be that Legal Aid was simply not available under the Regulations and the Statute] "and that an application could after all be submitted to the Tribunal without the assistance of a Solicitor and that they should do so without delay".

At once, Miss Moran and her mother did obtain the necessary forms, which they have a note attached to them which sets out the position and the time limits and so on and how to present it. Then the Tribunal say, having referred to those matters, that they are satisfied that had Miss Moran had known of the true position she would have taken the appropriate action in time:

"On the evidence before us we are satisfied that the failure to present the application within 3 months is attributable to the fault of the applicants solicitors. It is well settled law that if the applicants advisers are at fault, the applicant is bound by their mistake and this application is too late. We are satisfied that in this case it was reasonably practicable for the application to be presented in time and must now be dismissed."

They mean of course that it was reasonable practicably for the Solicitors to present it within time.

I am afraid that we are all satisfied that what the Tribunal said was, as a matter of law, correct. The Court of Appeal has told us in several decisions, one of them which Miss Moran has referred to is the case of Riley v Tesco Stores, that where the matter is put in the hands of advisers, in particular Solicitors, a person is in effect regarded as acting through the Solicitors. It is no good saying "oh well my Solicitors failed to issue a Writ in time or failed to make an application in time and I ought not to be blamed for it". It is not really a case for blame. The fact is that the Solicitors are then responsible for it. They are officers of the Court and it is their duty, of course, to do these things at the proper time. They have the necessary knowledge and the necessary facilities.

In those circumstances, the party's action is treated as being the same as that of their Solicitors. If it was reasonably practicable for the Solicitors to do it, then it is reasonably practicable for the complainant. Although it sounds, so to speak, very unfair and very harsh, a person is bound by the actions of a Solicitor and if the Solicitor lets them down they suffer for it.

However, it is not quite as black as that. Underlying all this is the fact that the Solicitor is responsible as a matter of law to his, or her, client for the conduct of the case. Here the Solicitors accepted responsibility and here they made the entirely unnecessary and inappropriate step of applying for Legal Aid and failed to give Miss Moran proper advice about how her application had to be presented within three months, that is to say by the 4 October.

If all that is correct, and certainly we have the Tribunal's finding that that is correct, then she is fully entitled to make a claim against her former Solicitors for loss, including the loss of any compensation which she would have been likely to recover had her application been presented at the proper time. That is not a matter on which we can advise her. It is a matter for her to seek advice from another, and one hopes better, Solicitor, but that is the position; in other words the Solicitors, having let Miss Moran down and having prevented her by their neglect from presenting her application in time, she is now entitled to complain against them, not in the Industrial Tribunal, but to a County Court, or perhaps the High Court, she will be advised about that if there is any difficulty. It is entirely for Miss Moran what she does about this.

All we have to say today, and are under a duty to say, is that there is no point of law that we can find, even with Miss Moran's assistance, on which her appeal could possibly succeed. We are bound by decisions (of which the Riley v Tesco Stores case is one) of the Court of Appeal to do what is right in law and we are not entitled, however sympathetic we feel to Miss Moran, to administer the law in a way which is not in accordance with the decisions of the Court of Appeal. The Court of Appeal has held that in circumstances such as this it is reasonably practicable to present a complaint in time and the Industrial Tribunal has so held in perfect accordance, it seems to us, with the rules of law.

In those circumstances we cannot possibly allow the appeal to proceed because we cannot see any way in which it can succeed, there is no point on law on which it can succeed. Therefore, with considerable regret, we are obliged to say now that this appeal must be dismissed.