United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1128_94_0304

Appeal No. EAT/1128/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd April 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J D DALY

MR R M PHIPPS

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MR R L FLOWER          APPELLANT

H.M. LAND REGISTRY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

THE APPELLANT APPEARING IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an Appeal by Mr R l Flower against the Decision of the Industrial Tribunal held at Bodmin on 29th September 1994.

The Chairman of the Tribunal, sitting alone, heard an application by Mr Flower. He had started proceedings for unfair dismissal against his former employers, H.M. Land Registry, by an application presented to the Industrial Tribunal on 13th July 1994.

In the Notice of Appearance dated 28th July the Land Registry stated that the reason for Mr Flowers' dismissal was misconduct. They said the correct dates of his employment were from 14th June 1978 to 31st December 1993. In those circumstances, they took the initial point that the Tribunal had no jurisdiction to deal with the matter, because his application was filed out of time. Their argument was that the three months allowed by the statute had run from 31st December 1993 and that he was way out of time, in presenting an application on 13th July of the following year. Alternatively, they denied unfair dismissal, and they set out their ground for dismissal as being abuse of the flexi-hours working system. That aspect of the case has not been examined by the Tribunal, because the case that came before the Chairman at Bodmin on 29th September, was on a preliminary issue as to jurisdiction.

The Chairman decided that the Tribunal did not have jurisdiction to hear Mr Flower's complaint, because his application was presented more than three months after the effective date of termination of the employment.

At that hearing Mr Flowers was represented by Counsel. The Tribunal, in the Full Reasons notified to the parties on 21st October 1994, set out the facts. The crucial facts are that, following a disciplinary hearing into issues of conduct, Mr Flowers was dismissed by letter dated 29th September 1993. The letter stated in paragraph 3:

"... In the circumstances I feel that there is no alternative but to terminate your employment on the grounds of misconduct. You will be paid until 31 December which is effectively your last day of service but you will not be required to attend the office from the date you receive this letter."

Paragraph 5 of the letter should be read in full, because Mr Flowers has made some submissions on it at the preliminary hearing of the Appeal today. Paragraph 5 reads:

"You have a right of appeal against dismissal to the Civil Service Appeal Board (CSAB). If you wish to appeal you must do so within 3 months of the effective date of termination of your employment by writing to the Secretary of the Board at 11 Belgrave Road, London, SW1V 1RB, indicating the broad grounds on which your appeal is based."

Neither that paragraph nor any other part of the letter referred to any rights which Mr Flowers might have to complain of unfair dismissal to an Industrial Tribunal.

Mr Flower exercised his right of appeal to the Civil Service Appeal Board. By a majority, the decision to dismiss him was upheld. We have the decision from which it appears that,the hearing before the board took place on 28th April 1994. Mr Flower received the benefit of representation from his union, Mr T Colwell of the CPSA. The conclusion of the Tribunal was that, by a majority, Mr Flowers' dismissal was fair. In accordance with an agreement with the Council of the Civil Service Unions he could make any further representations to the Head of Department.

It was only after notification of that decision in June 1994 that, Mr Flowers started proceedings in the Industrial Tribunal. He was then met with the defence, that his application was out of time. After referring to these facts, the Tribunal Chairman dealt with the contentions of the parties. In paragraph 3, he said that:

" The respondent [The Land Registry] contend[ed] that the letter of 29 September 1993 makes it absolutely clear that the effective date of termination of Mr Flower's employment was 31 December and that his application to the tribunal dated 13 July was more than six months after that date and more than three months out of time. The applicant [Mr Flower's counsel] argues that the terms in which he was notified of his right to appeal to the Civil Service Appeal Board effectively extended his employment to the date upon which he was notified of the Board's decision. In other words, the effective date of termination was sometime in June and therefore his Originating Application to the tribunal was well within the stipulated period of three months. It is also argued on behalf of the applicant that being a servant of the Crown and a member of a group given the right of application to an Industrial Tribunal by exercise of ministerial discretion derived from the Crown prerogative his circumstances are fundamentally different from those of an employee in the private sector."

A number of cases were cited to the Chairman. The Tribunal Chairman stated his conclusion:

"I am completely satisfied that the effective date of termination of the applicant's employment was 31 December 1993 and that it was reasonably practicable for him to present his application to the tribunal within three months of that date. His failure to do so was not induced by any action or request by the respondents and despite persuasive argument on the point there is no reason to treat the applicant as a special category of employee by virtue of the fact that he is a civil servant. Accordingly I find that the applicant's complaint was presented out of time and is dismissed."

Mr Flower appealed against that by Notice of Appeal served on the Tribunal at the beginning of December 1994. The ground of appeal was that the Tribunal had mis-applied or misconstrued the relevant statutory test under Section 67(2) the Employment Protection (Consolidation) Act 1978. Reference was made to the argument about the applicant's status as a Crown Servant. It was submitted in the Notice of Appeal that, in considering whether it was reasonably practicable for the Originating Application to be presented before 13th July, the Tribunal should have taken account of the public nature of established disciplinary procedures in the Civil Service.

In our view, their is no arguable error of law in the Decision of the Chairman. The state of the law relating to appeals against a decision to dismiss is conveniently summarised in Harvey on Industrial Relations and Employment Law paragraph 764:

"It must be emphasised that it is now clearly established -- after some initial conflicting case law -- that the three month time limit for presenting a claim for unfair dismissal runs from the date of the effective date of termination and that a failure to present a claim in time on the grounds that an internal appeal procedure is being or has been pursued will not be excusable. The employee will not be able successfully to allege that in these circumstances it was not reasonably practicable for him to present his complaint in time."

On the basis of that statement of the law, which, in our view is correct, there was no reason why it was not reasonably practicable for Mr Flowers to bring his application to the Industrial Tribunal within three months of the effective date of termination of his employment, 31st December 1993.

The fact that he was pursuing an internal appeal to the Civil Service Appeal Board is not relevant to the question of reasonable practicability.

Mr Flowers has made a number of other points in the course of his submissions. He reminded us that he had been in Crown Service for many years. He said he had always gone by the book. He followed instructions given. What he did, in relation to the letter of 29th September, was to follow what was stated in paragraph 5 of the letter, an appeal to the Appeal Board. He said no mention was made in that letter of a right to go to an Industrial Tribunal. In taking up the option offered he thought that that was the right thing to do. He thinks that he ought to have been informed by the same letter that he did have right, to go to Industrial Tribunal.

In our view, those are not points which throw doubt on the legal validity of the Chairman's decision. In our view, the Chairman, having found the facts, correctly applied settled law to them. There is no arguable legal flaw in his decision. We are sorry that Mr Flowers may feel aggrieved by this; that, if he had fully appreciated the position, he might have issued an Originating Application within time, but our sympathies cannot be allowed to let us stray from the law. The law is clear. The Chairman applied it correctly. There is no error of law in his decision about the effect of the Civil Service Appeal Board hearing. There is no error in his decision rejecting any special status for civil servants in relation to unfair dismissal claims in Industrial Tribunals

The Appeal is dismissed.