United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1028_94_1603

Appeal No. EAT/1028/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 March 1995

HIS HONOUR JUDGE LEVY QC

MR T S BATHO

MR D A C LAMBERT

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MISS S J JIMENEZ-HEANEY          APPELLANT

LATHAM CROSSLEY AND DAVIS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR ROLLASON

(of Counsel)

For the Respondents MR R TURNER

(Solicitor)

Vallance and Co

Essex House

12-13 Essex Street

London WC2R 3AA


 


JUDGE LEVY QC: Section 67(2) of the Employment Protection (Consolidation) Act 1978 provides:

"... 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 Appellant in this case, Miss S J Jimenez-Heaney, made a complaint to an industrial tribunal which was not received within the requisite period. The employer made an application for a preliminary hearing as to whether the tribunal had jurisdiction to hear the complainant's complaint. That preliminary hearing took place without the Respondent being present on 7 September 1994 at London (North) when the tribunal decided that it had no jurisdiction to hear the case and dismissed the application. The decision was sent to the parties on 23 September 1994. From that decision the Applicant appeals.

The extended reasons were short. They were as follows:

"1. The Applicant did not appear but her mother stated that the Applicant had been dismissed on November the 9th 1993 and she with her daughter had attended the Waterloo Law Centre and a Solicitor there had obtained the forms and completed them and sent them back to the Applicant with a direction that they should be submitted to the Tribunal at Bury St Edmunds by the 4 February. Mrs Heaney informed us that she posted the envelope with the forms from Rochester Row post box sometime after the end of January, but she did not register it or record it and she could not be specific about dates.

2. The IT1 did not have the address of the Solicitor on it but in April Mrs Heaney telephoned the Solicitor and enquired about her claim. She was informed that the Solicitor had not heard anything from the Industrial Tribunal and the Solicitor there phoned the Industrial Tribunal to find out whether it had been registered. She was told that it had not been registered and therefore the Applicant sent in a copy of an application which was received on the 7 April.

3. This Tribunal only has jurisdiction to extend the time if it was not reasonably practicable for the Applicant to submit the application within the time limits laid down. We find that it was reasonably practicable for the Applicant to submit her form and it is unfortunate that the form that was allegedly posted had not been received and therefore it was not presented within Section 57(2) of the Act."

We interpose to say that is clearly a slip, it is Section 67(2).

"4. We therefore cannot extend the time limit as it was reasonably practicable for this form to have been presented and we have no jurisdiction to hear this case."

Mr Rollason, appearing for the Appellant here, has first made attempts to put before us documents which clearly were not before the industrial tribunal. There has been no request for this Tribunal to obtain the Chairman's notes of the Applicant's mother's evidence. There is no suggestion that the evidence which she gave, as recorded in paragraphs 1 and 2 of the extended reasons, are other than a proper record of the evidence which Mrs Heaney gave. The essential evidence is in the last sentence of paragraph 2: there was no evidence before the tribunal as to when the complaint had been posted to the tribunal; there was no clear evidence before the tribunal that it was posted so that it was received by the tribunal within the three months allowed for within the section. Mr Rollason has made stringent criticisms on the extended reasons, particularly pointed to the ambiguity in the second sentence within paragraph 3. He points to the use of `allegedly' and says that it is not clear from the paragraph whether the tribunal was saying whether the complaint was or was not posted; he says that it is not clear whether the tribunal had taken into account what might have happened if the letter had been lost in the post.

We have been cited a great deal of authority. From the cases cited it is clear that an employee must show that it was not reasonably practical to present his claim in time. The burden of proof in this rests firmly on the Applicant. That is a burden which in this case the industrial tribunal held she had not discharged. On the evidence before it the decision which the Tribunal reached was one it was entitled to reach.

Among the other cases to which we have been referred is the well-known decision in Wall's Meat Co Ltd v Khan [1978] IRLR 499 and our attention has been drawn to the paragraph in Shaw LJ's judgment at paragraph 21 on page 501:

"It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs.

The test is empirical and involves no legal concept. Practical commonsense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the Industrial Tribunal, and that their decision should prevail unless it is plainly perverse or oppressive."

Since Shaw LJ gave that judgment there have been many cases referred to this Tribunal but we think that the reasoning which is expressed in that paragraph is one which is applicable to this case.

We see nothing in the Industrial Tribunal's decision which is plainly perverse or oppressive. We think that the decision which the Industrial Tribunal reached was one which it was entitled to on the evidence of Mrs Heaney (whom it had seen). In the circumstances we dismiss this appeal.

We would thank Mr Rollason for the valiant submission which he made on behalf of Miss Jimenez-Heaney. We, of course, have sympathy with an Appellant whose case has not been heard on the merits but we cannot stretch the law to enable an application to be made out of time.