United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 828_94_1905

Appeal No. EAT/828/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 May 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R SANDERSON OBE

MRS M E SUNDERLAND JP

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MR F P MANSON          APPELLANT

THOMAS CHRISTY LTD (IN LIQUIDATION)          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mr Manson against the decision of the Industrial Tribunal Chairman sitting alone at Southampton on 4 July 1994. The decision was made in proceedings for unfair dismissal brought by Mr Manson against Thomas Christy Ltd (In Liquidation). He was formerly Chairman and Managing Director. The claim for unfair dismissal was made in the application presented to the Tribunal on 10 January 1994. It appears from the dates given in the originating application that Mr Manson's employment was from 15 December 1980 until 21 December 1988. It is also apparent from the date of presentation of the complaint and the date of termination of employment that the application was presented out of time. Under the Employment Protection (Consolidation) Act 1978 Section 67:

"A complaint may be presented to an industrial tribunal against an employer by any person... that he was unfairly dismissed by the employer"

Under Section 67(2):

"... 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..."

There is no dispute, therefore, that this application was out of time. The question the Tribunal Chairman had to consider arises under the second part of Section 67(2): that is, whether the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. If the Tribunal is satisfied that it was not reasonably practicable to do that, then it may extend the time for such further period as the Tribunal considers reasonable.

The conclusion of the Chairman was that the application should be dismissed, because it was reasonably practicable for the application to be presented by Mr Manson within the three months. Mr Manson was dissatisfied with that decision. He appealed by a Notice of Appeal served on 17 August 1994. The case was set down for a Preliminary Hearing, for Mr Manson to satisfy this Tribunal that he has an arguable point of law on his appeal. If it is not reasonably arguable as a point of law, then there is no purpose in the appeal being pursued to a full hearing. At the hearing today Mr Manson represented himself. We have taken account of the fact that he is not qualified or experienced to argue points of law. He has told us that he has a pending application for Legal Aid and that, despite efforts, he has been unable to obtain professional assistance for this appeal. We have also taken account of the fact that, according to a Medical Certificate, he is not in good health.

The question is: what is the point of law on which the Tribunal Chairman made an error in his decision? Mr Manson's main point was that the Tribunal Chairman had come to the wrong decision because it was not reasonably practicable for him to present his complaint for unfair dismissal until he had discovered the true facts about the reason for his dismissal. He argued that, when he was dismissed on 21 December 1988, the reason given was redundancy. He said that it was not until December 1993 that he learnt that his dismissal was not by reason of redundancy but was alleged to be due to his conduct. This information had come to his knowledge during the course of High Court proceedings; in particular, in the oral evidence given by the liquidator of Thomas Christy Ltd, Mr Smith. Therefore, Mr Manson argues, in presenting his application on 10 January 1994, he had started the proceedings within three months of learning the true reason for his dismissal. For that part of his argument, he relied upon a decision of this Tribunal in Marley (UK) Ltd v Anderson [1994] ICR 295, where, following the expiry of a time limit to bring proceedings, the Applicant discovered new facts crucial to his case which caused him to challenge the fairness of the dismissal. It was held there that he could rely on the newly discovered facts in proceedings which had been brought out of time.

The second point was that it was not legally correct for the Chairman in his decision to rely, as he did, on certain matters which had been the subject of judgments in the High Court in proceedings in which Mr Manson is involved. One set of proceedings resulted in a judgment given by a Deputy High Court Judge, Mr David Neuberger QC. Another set of proceedings resulted in a judgment given by Mr Justice Jacob. There are references in the Reasons notified to the parties on 11 July 1994 to matters stated in those two judgments. The reason why it was wrong to rely on those judgments, Mr Manson argued, was that they are being appealed. They may not be the last word on the subject of his involvement in the matters ruled on in the judgments.

We have considered these arguments. Our conclusion is that neither argument discloses an error of law on the part of the Tribunal Chairman. The Chairman set out the facts of the case, starting with the appointment of joint administrative receivers over Thomas Christy Ltd, early in December 1988 to the dismissal of Mr Manson for redundancy and to later proceedings. Later proceedings include an originating application presented by Mr Manson in April 1990 against the purchaser of assets from the company in which he alleged that his dismissal had been by reason of transfer of an undertaking. That application was later dismissed because it was presented out of time and it was found that it was reasonably practicable for it to have been presented within time.

The findings of fact refer to other proceedings under the Company Directors Disqualification Act and a summons by the liquidator against Mr Manson for misfeasance and breach of fiduciary duty under the Insolvency Act. The position, as stated by the Industrial Tribunal Chairman, was that, on his findings, Mr Manson was dismissed by way of redundancy. Nobody had ever said anything to the contrary. He pointed out that the fallacy in Mr Manson's arguments was that they failed to appreciate the difference between the reason for the dismissal and the reason for which he could have been dismissed, had the facts been known at the time. In our view, the Tribunal Chairman came to the correct decision when he said that it was not an appropriate case for extending time because `nothing new had been learned which altered the position from the moment the applicant was dismissed'.

Within three months of him being dismissed, it would have been reasonably practicable for Mr Manson to challenge the reason given. If he did not accept that there was a redundancy situation, he could have challenged it at the time and said then that he was unfairly dismissed, either because there was no fair reason for his dismissal or there was a different reason than the one in fact given by the Receivers or the employee of the Receivers who dismissed him. We agree with the Industrial Tribunal Chairman that there is really no prospect of Mr Manson being able to show that the reason for his dismissal by the Receivers was anything other than redundancy. He was, therefore, out of time. It is impossible for him to say that it was not reasonably practicable to bring a case within the three months. For all those reasons we see no point in this appeal proceeding to a full hearing. It is dismissed.