United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 916_94_0911

Appeal No. EAT/916/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 November 1994

Before

THE HONOURABLE MR JUSTICE PILL

MRS M E SUNDERLAND JP

MR G H WRIGHT MBE

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MRS P JOHNSON          APPELLANT

STEVE LILLEY RACING LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR DAVID CINTAS

(Representative)

Citizens Advice Bureau

20A Queen Street

Market Drayton

Shropshire

TF9 1PX


 


MR JUSTICE PILL: This is an Appeal from the Decision of the Industrial Tribunal held at Shrewsbury on 22 July 1994, the Chairman sitting alone. The Tribunal decided that the Application of Mrs P. Johnson be dismissed. The reason given was that the Application had been presented out of time and it was reasonably practicable to present it in time.

The Tribunal applied Section 67(2) of the Employment Protection (Consolidation) Act 1978. Mrs Johnson appeared at the hearing before the Tribunal and was assisted by Mr J.Bentley of the Citizens Advice Bureau. It was common ground that the effective date of the termination of her employment was 6 December 1993. There was a dispute between her and her formers employers, Steve Lilley Racing Ltd, as to whether she had been dismissed or had resigned, but the merits of that were not considered at the hearing and rightly so because the point was taken that the Application was out of time, and that was treated as a preliminary point.

As the Tribunal correctly noted, the relevant three months period on a complaint of unfair dismissal expired on 5 March 1994. The Application was received on 12 April 1994 and was therefore substantially out of time. The Tribunal noted the evidence which had been given upon the preliminary point. Mrs Johnson on numerous occasions in December 1993 visited the Citizens Advice Bureau and there saw Mr Bentley.

We have today heard the helpful submissions of Mr Cintas, also of the Citizens Advice Bureau, and he has given a little more background information, additional to that contained in the decision. The relevant Citizens Advice Bureau is that for North Shropshire, which is a separately funded body. The visits by Mrs Johnson were to the Market Drayton Office. Mr Bentley serviced that office and had responsibility for a number of other premises. Mrs Johnson's visits culminated in a visit on 28 January 1994, when she either took with her or completed at the Citizens Advice Bureau Office, her Originating Application claiming unfair dismissal, the form known as an IT1. That is in our bundle signed by her and is indeed dated 28 January 1994. Mr Bentley said that he had posted it on that day. However, the postmark upon it showed 11 April 1994, that is shortly before the date on which it was admittedly received. It was common ground, as is noted in paragraph 6 of the decision, that the application form was not received in time.

It was also common ground that Mr Bentley had not followed up the Application in the sense of checking whether it had been delivered. Unfortunately, he was under considerable pressure of work at the time and also his wife was ill. As Mr Cintas has told us, he was what is known as a "voluntary generalist adviser" and at that time he did not believe he had any duty to take further action by way of checking that the letter had been delivered.

It has to be said that there is no explanation for the difference between the date on which he says it was posted and the postmark, though as Mr Cintas points out, it does occasionally happen that letters are mislaid between the moment of posting and the moment of postmarking.

Mr Cintas was, if we may say so, frank and helpful in his submissions to us. He has told us that procedures at the CAB have been tightened up since this unfortunate event. It is not of course the CAB or anyone else who are on trial at this hearing and upon this Appeal. We have been interested to hear of the background and reassured to hear of the improvement in procedures, but our task to consider whether the Tribunal have erred in law in the decision which was taken.

The basis of the decision is set out in paragraph 6. We do not need to refer to it in full. The Tribunal have in our view applied the correct test, noting as they have in passing the sadness occasioned by Mr Bentley's personal circumstances. The Chairman concluded by stating:

"..... this complaint has not been presented in due time, and it was reasonably practicable to do so".

It is common ground that Mrs Johnson herself was in no way to blame for the failure to ensure that her Application was delivered within the three months time limit. Mr Cintas clearly has a knowledge of the basic proposition of law by which we have to approach the question of practicability and of cases where the position of the Citizens Advice Bureau itself has been considered. We have in mind in particular the case of Reilly v Tesco Stores Ltd [1980] ICR 323. The effect of that decision is not in our view diminished by the recent decision of the Court of Appeal in London International College Ltd v Sen [1993] IRLR 333.

The Tribunal considered the question carefully. They came to the conclusion which we have repeated. In our judgment it is not arguable in this case that there has been any error of law. The decision was one which the Tribunal were entitled to reach and in our judgment, correctly reached, upon the evidence before them, applying, as a Tribunal must and as we must, the wording of Section 67 of the 1978 Act as interpreted in subsequent decisions of the Courts. This Appeal must be dismissed.