United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1217_94_0505

Appeal No. EAT/1217/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th May 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR P SMITH

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MRS M ROSS          APPELLANT

RAVENSWOOD FOUNDATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MRS M ROSS

(The Appellant in person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal brought by Mrs Mary Ross against the decision of the Industrial Tribunal held at Reading 4th November 1994.

Mrs Ross brought a case for unfair dismissal against her employers, Ravenswood Foundation. Her originating application was presented on 27th June. She set out there the details of why she claimed that she had been unfairly dismissed on 5th May 1994, having been employed since December 1989. The Ravenswood Foundation disputed the claim and set out in details of the grounds on which they said that there was no unfair dismissal.

The Tribunal stated that both the fact of dismissal and the effective date of termination were in dispute. A preliminary hearing was held to determine if the claim was presented in time. They added that, during the course of the hearing and of the evidence, it also became necessary for the Tribunal to consider a further point, not mentioned in the originating application or the Notice of Appearance. That was whether Mrs Ross had been continuously employed as an employee for a period of not less than two years ending with the effective date of termination. That was a fundamental point, because, if she could not satisfy that requirement, she would have no right to complain of unfair dismissal.

The Tribunal's unaminous decision was that Mrs Ross had not in fact been continuously employed by Ravenswood Foundation for a period not less than two years. Section 64 of 1978 Act was not complied with. They also held that the complaint was out of time, and Mrs Ross had failed to satisfy the requirements of Section 67 of the 1978 Act. The result was that they had no jurisdiction to hear the complaint.

Mrs Ross was disappointed by that decision and she appealed. She served at Notice of Appeal on 16th December 1994, having been notified of the full reasons for the decision on 17th November 1994. The ground of appeal, as stated in the Notice of Appeal, was that she was not allowed to "show evidence" and that evidence, which was untruthful on oath, had been given on behalf of Ravenswood Foundation.

The purpose of the Preliminary Hearing today, which has been attended by Mrs Ross in person, is to decide whether her appeal raises an arguable point of law. If it does not, then we have no jurisdiction to hear the Appeal. The jurisdiction of this Tribunal limited to hearing appeals on points of law. We have no powers to hear evidence or arguments that the findings of fact by the Tribunal were wrong.

In the decision the Tribunal stated that they heard evidence on both sides. Evidence was given for the Ravenswood Foundation by Sheena Davies, the Head of Adult Residential Care, and by Maureen Corris, the Secretary. There was a conflict between the evidence they gave and the evidence which Mrs Ross gave. The Tribunal, who heard all the evidence, decided to accept the evidence of the witnesses for the Ravenswood Foundation. The crucial facts found by them were these. Mrs Ross worked as a care assistant at Ravenswood Village, which is operated by Ravenswood Foundation. She had been working for them since 1989; she did not do any work for them after 19th March 1994; that she was informed on 21st March 1994 that she would not be given any further work until she provided the medical information which they had requested. They heard evidence from Mrs Ross that she did go into the place of work later. Mrs Ross's case was that she was not in fact dismissed until 5th May 1994. These dates are crucial because under Section 67 of 1978 Act, a complaint of unfair dismissal must be presented with in three months of the effective date of termination. The Tribunal has jurisdiction to extend it, but only if it was satisfied that it was not reasonably practicable for the claim to be presented by Mrs Ross within the three month time limit.

The conclusions of the Tribunal on this part of the case were that the two crucial dates were 21st March 1994 and 27th June 1994, when the application was received in the Central Office of the Industrial Tribunals. The Tribunal regarded 21st March 1994 as crucial, as, in their view, that was the effective date of termination of employment. That was the date on which Mrs Ross was informed that she would be given no further work until she supplied information to enable a medical report to be provided by her doctor. That had been requested, because their belief was that she was medically unfit to work.

In our view, there was no error of law in the Tribunal's decision that 21st March 1994 was the effective date of termination. That was a view they were entitled to form on the evidence which they heard and on the application of the relevant statutory provision which define the effective date of termination.

It is obvious that the complaint was not actually made to the Industrial Tribunal until after the three months had expired. It was therefore out of time. The Tribunal concluded that it was reasonably practicable for Mrs Ross to present her claim within the three month time limit. In those circumstances, the Tribunal had no jurisdiction to hear a complaint, because she had failed to comply with Section 67 of the 1978 Act.

On this part of the case, we heard Mrs Ross explain that in her view, 5th May 1994 was first date that she knew she had been dismissed. Therefore she was not out of time. We understand that argument, but we are unable to accept it, because it is contrary to the view which the Tribunal formed of the facts. It is for the Tribunal to decide what the facts are, not us. We cannot substitute 5th May 1994 for 21st March 1994, simply because Mrs Ross says that was the correct date. The Tribunal were entitled, as I have said, to take the view they have about the effective date of termination.

The second point on which the Tribunal said they had no jurisdiction was that she had not been employed for a continuous period of not less than two years ending with the effective date of termination. The reason for that was that, although Mrs Ross commenced employment in December 1989, the Tribunal found, as a fact, that there was a break of eight months from the end of December 1991 until August 1992, and during that period she was away from work due to illness. (She has explained to us the foot injury she suffered.) She was not paid sick pay during that period. The Tribunal's conclusion, was that she had not been employed continuously for a period of not less than two years, ending with 21st March 1994. The period from August 1992 to 21st March 1994 is less than two years. Again, we are of the view that there is no legal error in the Tribunal's decision. They found the facts of the break in employment. Having found those facts, it was a correct legal conclusion that they had no jurisdiction, because she could not satisfy the two year requirement.

It should be added that, in addition to all this, the Respondents main case was that they had never dismissed Mrs Ross. Their case was that she had stopped working on 19th March 1994 and there could not be any liability for unfair dismissal in circumstances where she had in fact dismissed herself. We need not deal with that part of the case. The Tribunal proceeded to hear and decide the case on the basis that if she was dismissed, she was out of time, and could not satisfy the two year requirement.

In addition to those points, Mrs Ross has told us of a number other grievances she has. She says that the witnesses for the Ravenswood Foundation told lies on oath. She was in the unfortunate position of having to do her case on her own in person. She thinks this is a case where the Employers are "getting away with it". She does not think that anybody should get away with what has been done to her. She is out of a job. She is unable to get another job because they will not give her a reference and she says she is too young and too talented to really to be thrown on the scrap heap. She has told us of complaints she has about the way that she was treated, by other younger employees, who did not like her. We understand that Mrs Ross may have these grievances and others about her treatment. We are not in a position to say what the work situation was, because we do not hear evidence, we only hear legal argument. For the reasons explained on the legal argument, the Industrial Tribunal's decision was correct. Therefore we cannot allow this appeal to go any further. It will therefore be dismissed at this stage.