United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 8_95_0105

Appeal No. EAT/8/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 May 1995

Before

HIS HONOUR JUDGE J HULL QC

MR A C BLYGHTON

MRS M E SUNDERLAND JP

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MRS S BOUAKA          APPELLANT

HOME OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR L O'CALLAGHAN

(CPSA Representative)

CPSA

Home Office Section

Room G30 Abell House

John Islip Street

London

SW1P 4LH


 


JUDGE HULL QC: This is an appeal to us by Mrs Bouaka who made a claim in respect of alleged unfair dismissal against her employers, the Home Office, and Mrs Bouaka is represented today, as she was before the Industrial Tribunal, by Mr O'Callaghan.

Her employment began at the Home Office on 19 September 1990 as an administrative officer and then she achieved what, I think, would undoubtedly have been promotion, but it was on a conditional basis apparently. She was appointed provisionally as an Immigration Officer. That was on 7 June 1993. But that, so we are told, was on the basis that this was subject to various matters. In particular, it was necessary to do something which is called "positive vetting" and according to the Home Office that led to the discovery, not of anything whatever against her, but of certain facts which gave rise to a suspicion, a feeling, that she might be subjected to improper and unfair pressure by others if she was employed in that particular office as an Immigration Officer. And therefore, they reverted her to her previous position as an administrative officer.

That, of course, was the subject matter of her complaint. She complained that when, on 27 July, she received a letter which said that that was the result of the positive vetting, the enquiries which had been made, that amounted to a dismissal of her.

She appealed. Eventually, she appealed to the Permanent Under-Secretary who wrote her a letter in which he explained that happily this would not necessarily prevent her from progressing a long way in her career because there were relatively few jobs for which this "positive vetting" was necessary, but nonetheless the decision stood and the appeals were unsuccessful. In the meantime, she applied saying that she had been dismissed by the letter.

She issued her IT1, as it is called, and she at first instructed solicitors who were experienced in this field, and then, becoming dissatisfied with their services apparently, she decided to withdraw her instructions from them and she went to her trade union officer, whom she clearly trusted, Mr O'Callaghan of the CPSA; and he took the IT1 which had been drafted but not served. This was on 28 September 1993. He deleted the names of the solicitors and he then put in his own name, accepting responsibility for the matter.

He tells us that this was the very first case in which he had been involved, accepting responsibility for a complaint of unfair dismissal. He rang up Croydon, that being the place which seemed to be the appropriate Tribunal, and he spoke to the officer of the Tribunal there and said he was sending them an IT1, a form of application. He was not told by the clerk, to whom he spoke, that that was the wrong thing to do and he explains to us that the form did not have attached to it the explanations which the form does when you obtain a copy from a Post Office or other public office. It has attached to it a list of directions which include the proper way of presenting the application. The application must be presented to the Central Office of the Industrial Tribunals which is at Bury St Edmunds. That is the address where the Secretary is to be found and all applications in England have to be sent there and that is all explained.

So it was wrong to send it to Croydon, although the clerk, who may have been just as unfamiliar with these matters as Mr O'Callaghan, did not enlighten Mr O'Callaghan about that and off it went on 30 September. Nothing was heard, whether from Croydon or anywhere else, for some time, and on 2 November Mr O'Callaghan phoned Croydon. He was told, apparently, that if anything was sent to Croydon which should be sent to the office in Bury St Edmunds, then it would be sent on. But we do not in fact know, nobody knows, whether the IT1 did, in fact, get to Croydon and whether, in fact, it was sent on.

The requirement of the statute is that it should be presented within three months of the effective date of dismissal. Presentation is effected by its being delivered to the correct address, to the Secretary of the Industrial Tribunals, and it cannot be effected by sending it anywhere else, or in any other way.

So we do not know if the form ever got to the Central Office. Mr O'Callaghan, being rightly concerned about time, and having phoned Croydon on 2 November, sent a fax of a copy of the IT1 to the correct address this time, to Bury St Edmunds, and it was duly stamped and that was treated as the application.

As can be seen, on the basis that the dismissal was on 27 July, this application was, on the face of it, out of time. Mr O'Callaghan has told us today, and has indeed said in his Notice of Appeal, that he wished to assert that in fact dismissal did not take place until 5 September or thereabouts; because Mrs Bouaka was entitled to five weeks notice and the letter which was sent to her telling her that, unhappily, the positive vetting test meant that she could not continue with her job, thereby implied that she was dismissed at the end of five weeks. That is backed up, he says, by the fact that she was in fact paid for those five weeks at the higher rate at the Home Office.

The difficulty with that is that on the form IT1, which is with our papers, it is quite clearly stated that her employment ended on 27 July 1993 and it was accepted by the employers that that was her case. Of course, they did not accept that there had been any dismissal. They said, so far from it being a dismissal, she has never been dismissed. All that has happened is that she has reverted to her previous job having failed one of the conditions, through no fault of her own, of her provisional promotion to the post of Immigration Officer.

But at any rate, the matter was throughout dealt with on the basis that the effective date of termination, if there was an effective date, was 27 July. The Industrial Tribunal make that plain in their decision. They held a preliminary hearing; at first, it was said, to establish whether in fact there had been a dismissal or not. Then it appeared, quite plainly, that if there was a dismissal on 27 July the application was out of time and they therefore had to enquire whether it was reasonably practicable to present it within the three months. And they did so.

Mr O'Callaghan now says that in fact, this being his first case, he was taken aback by what was happening. He did not know how to respond to the matter. He did not raise with the Tribunal his alternative submission that, in fact, dismissal did not take place until September. He did not ask for leave to amend the IT1 and he was, generally speaking, disadvantaged. He has since looked up various cases which dealt with rather different facts and he says, "well I enquired about the IT1 within five weeks of sending it off" and he says "as soon as I learned that there was no trace of it having been received at the proper place, I sent off a fax and therefore it should be held that it was not reasonably practicable". He says he did not do himself justice at the hearing.

On the face of it the Industrial Tribunal was not only entitled, but bound, to look into the question whether "it was reasonably practicable"; whether it had been presented in time. They found that it had not, and there was indeed no evidence that it had been presented by being sent to Bury St Edmunds within the three months and if not, whether it was reasonably practicable to send it within the three months.

On 30 September, which was within time on any view, Mr O'Callaghan was duly instructed. He sent the IT1 to the wrong address. It is manifest that Mr O'Callaghan was accepting the duties of a representative. He certainly did not explain to anybody that this was his first case and therefore he could not accept the full responsibilities of a representative without assistance.

He could have applied to his union headquarters and sought advice there. He could, of course, have taken advice from solicitors if he thought it right to do so, provided his union had authorised him to do so, but he did not do any of those things. He made a mistake, which no doubt is a very natural and understandable mistake for a beginner (if I may use that expression without, of course, wishing to be offensive in any way). He did not do those things, but it seems to us absolutely manifest, as indeed it seemed to the Industrial Tribunal, that it was reasonably practicable to present the complaint in time.

Of course, before this Mrs Bouaka had been represented by solicitors. So she had, at all material times, had the advantage of advice. In those circumstances it was quite different from the type of case which Mr O'Callaghan has referred to, where the IT1 is sent to the Central Office of Tribunals, but there is no record of it being received or something of that sort. He never did send it to the Central Office, so those cases have nothing to do with it, with respect. And the question is, whether Mr O'Callaghan having made this mistake, it can be said that it was not reasonably practicable for him to do the job correctly and carry out his duties correctly to Mrs Bouaka. It seems to us, as it seemed to the Industrial Tribunal, that inevitably that was so.

The point about the effective date of dismissal was never raised with the Tribunal and therefore they cannot be criticised for not considering that point, and in all the circumstances, it seems to us that Mr O'Callaghan never explained to the Tribunal that he was disadvantaged, that he was inexperienced in this field; they would perhaps have been surprised if he had done, but they would then have had to listen to what he said about being disadvantaged and not being able to do the case justice then, and would have had to consider whether to give him an opportunity to seek further advice.

However it is looked at, however it is put, it seems to us that this is a case where there is no fairly arguable point of appeal. We cannot, of course, hear appeals on matters which were not raised before the Tribunal and the decision of the Tribunal, which was reached, that it was reasonably practicable for this complaint to be presented in time, seems to us to be quite unchallengeable as a matter of law. In all the circumstances, we have to say that there is no fairly arguable point of law that we can discover here and therefore the appeal falls to be dismissed at this stage.