United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 357_94_2810

Appeal No. EAT/357/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 October 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T S BATHO

MR D A C LAMBERT

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TRAFALGAR HOUSE SERVICES LTD          APPELLANT

MR G A WHITEHEAD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant Mr Jalil Asif

(Of Counsel)

Ashurst Morris Crisp

Broadwalk House

5 Appold Street

LONDON EC2A 7HA


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an Appeal against the Decision of the Industrial Tribunal held at Bury St Edmunds on the

22nd February 1994 in proceedings for Unfair Dismissal, brought by Mr Gordon Whitehead against his former employers, Trafalgar House Services.

The Tribunal unanimously decided, on a Preliminary Issue, that although

Mr Whitehead's Application was not brought within the period of three months, it was not reasonably practicable for him to present it within the three month period; and that he had presented it within a reasonable time thereafter. The Tribunal therefore decided that the claim should proceed to a Full Hearing.

The Full Reasons of the Tribunal were sent to the parties on the 7th March. They set out the facts relevant to their conclusions. They applied to the facts the provisions of Section 67 (2) of the Employment Protection (Consolidation) Act [1978]. That provides that a 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 the three months.

The facts bound by the Tribunal were that Mr Whitehead was dismissed on the

30th April 1993. The reason for dismissal was given as redundancy. At the time of the dismissal, he accepted the dismissal as fair, but his evidence was that, about nine weeks after his dismissal, he discovered, a Mr Thompson still had his job and was employing someone to do Mr Whitehead's work. That struck him as unfair. He then took steps to seek legal redress.

The Tribunal set out what those steps were. On the 12th July 1993, he phoned the Job Centre at Mildenhall. He was told to write to ACAS for an originating application. The Tribunal found that that advice was wrong. The address which he was given was wrong.

On the 15th July he went to the Job Centre office and was given the same advice and the same wrong address. There were in the office a supply of originating application forms, but no form was given to Mr Whitehead by the official, who misinformed him about the position.

The Tribunal found that, in due course, at about the end of July, Mr Whitehead received a reply from ACAS, who told him to get a form from a number of different agencies, including the Job Centre. On the 5th August he went to the Job Centre. He got the form that he should have been given on his first visit on the 15th July. He filled the form in. As appears from the form, it was received at the Central Office on the 9th August 1993. There is no doubt that that is out of time. The three month period ended on the 29th July.

The Tribunal noted from the evidence that Mr Whitehead had been to the Citizens Advice Bureau before he went to the Job Centre, but they found that the evidence about that was too nebulous to form the foundation of any findings of fact. The Tribunal came to these conclusions of fact. Mr Whitehead took steps to get an originating form. Due to the negligence of the Government Departments he was not given the necessary form. He did not known at that time, that the forms were not necessary in order to bring a claim, although they are of assistance to those who have to process them. He did not know of three time limit until he had received the letter from ACAS at the end of July.

The Tribunal was satisfied that it was not practicable, in those circumstances, for him to present his claim within the three month period. In paragraph 8 of the Decision, the Tribunal said:

"8. .....A distinction has to be drawn between erroneous advice given by a skilled adviser and an administrative blunder by those charged with oiling the wheels of justice. Strictly speaking the applicant was not seeking advice from the Job Centre but asking for a form to process his claim. He was not given one."

For those reasons that the Tribunal decided that the case should proceed to a Full Hearing. The main submission on behalf of the Appellants by Mr Asif is that there was a misdirection of law by the Tribunal, in paragraph 8, in saying that a distinction has [and I emphasise has], to be drawn between erroneous advice given by a skilled adviser and an administrative blunder by those charged with oiling the wheels of justice.

Mr Asif referred us to the Summary of the legal position in Vol.4 of Harvey, on Industrial Relations and Employment Law, paragraphs 214 onwards, where there is a discussion of various cases on applications out of time; whether advisers were at fault; and whether there was any distinction to be drawn between skilled advisers and unskilled advisers. Mr Asif agreed that the legal position is correctly stated in paragraph 225, where it is stated:

"The issue of reasonable practicability being an issue of fact, must be determined by examining all the circumstances and matters relating to the skill or lack of skill, or the engagement or otherwise, of the advisers, are only relevant as part of the general overall circumstances of the case."

In a helpful Skeleton Argument in support of the Appeal, Mr Asif posed a question:

"1. Was it "not reasonably practicable for the complaint to be presented before the end of the period of three months" ...in circumstances where the Applicant knew of his right to make a claim for unfair dismissal but received erroneous advice from employees of the Job Centre as to how and from where to obtain a form IT1."

That is a fair way of stating the issue. The Skeleton Argument refers to the main facts and advances the proposition that an Applicant cannot hide behind an error of his advisers. The position here was that he sought advice. He had been given erroneous advice. In those circumstances, it was a misdirection of law for the Tribunal to conclude that it was not reasonably practicable for a complaint to be presented before the end the period of three months.

We are grateful for the clarity of the submission, but we are unable to accept it for this reason. Whether it is reasonably practicable or not to present a complaint or not, within the time period, is a question of fact. It is to be decided by looking at all the circumstances. The relevant circumstances include such matters as whether a person sought and obtained advice or not. It is also relevant to look at who they got advice from and what the advice was.

In our view, the flaw in Mr Asif's submission is to read the sentence quoted from paragraph 8 as laying down a legal proposition, as stating that, as a matter of law, a distinction has to be drawn between erroneous advice and a skilled adviser, and an administrative blunder, from a Job Centre, or some such other official agency.

We are agreed that, reading that sentence in the context of the whole Decision, the Tribunal was not laying down a proposition of law. It was pointing to a contrast between the facts of the case before it, and the facts of a hypothetical case, where the advice had been received from a skilled adviser, such as a solicitor. It is an observation on the facts of this case and another possible case. It is not laid diwb as a legal proposition. It is well established that, in examining Decisions of Industrial Tribunals, it is necessary to look at the whole of the Reasons in context and to read them in a broad and reasonable manner. It is wrong to select single sentences and analyse the language of them too closely.

We are satisfied, in this case, that there is no arguable error of law in the Decision of the Tribunal. There is no point in this case proceeding to a Full Hearing. It will be dismissed at this stage, with the result that the Full Hearing can now continue before the Industrial Tribunal on the merits of Mr Whitehead's claim.