United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 915_95_2311

Appeal No. EAT/915/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 November 1995

HIS HONOUR JUDGE H J BYRT QC

MRS J M MATTHIAS

MRS P TURNER OBE

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MR J C MASON          APPELLANT

DOW CORNING LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

ON BEHALF OF THE APPELLANT


 


JUDGE BYRT QC: This is an appeal against the decision of the Industrial Tribunal sitting at Cardiff on 30 June 1995, when they unanimously dismissed an application for unfair dismissal on two grounds.

The first ground was that the Tribunal found that the Originating Application had been presented outside the three month period commencing with the date of the termination of the employment and secondly, they held that the Applicant had no contract of service with the Respondents.

Quite shortly, the facts are that the Appellant had begun working for the Respondents in about October 1986. He was introduced to that arrangement by a recruitment agency called Kelter.

The finding of the Industrial Tribunal was that he was working for himself. They came to that conclusion after having heard all the evidence, some of which is repeated in paragraphs 3, 4 and 5 of their extended reasons. In paragraph 6, they say that no one factor is definitive of the relationship. You have to look at the broad picture and ask whether the full spectrum of facts indicate that an individual was working for himself. They came to the conclusion, on weighing all that evidence, that in he was.

The second aspect of the case relates to the application out of time. The termination of the employment (if that is what it was) was on 7 October 1994. The Appellant had filled in his Originating Application by 7 September, but he did not present it to the Regional Office of the Industrial Tribunals until 4 February 1995. If that be the case, that is approximately one month out of time.

There is provision in Section 67 of the Employment Protection (Consolidation) Act 1978, subsection 2, which enables the Tribunal, in certain circumstances, to grant an extension of time for the filing of the Originating Application, but that is only where the Tribunal is satisfied that it has not been reasonably practicable for the complaint to be presented within time.

The Appellant's case was that he had been engaged in a tripartite negotiation with Kelter, and the Respondents. That was one ground and, as a result of that, it seemed he delayed. The fact that he was negotiating is no reason why he should have delayed filing an Originating Application to commence these proceedings before the Industrial Tribunal.

Secondly, he says that he was wrongly advised by the Citizens Advice Bureau to the effect that he should first of all exhaust his rights of appeal within the organisation itself. The Tribunal attached significance to the Appellant's own admission that when he received the Originating Application he had been made aware of the three month time limit by the Industrial Tribunal Office and in consequence, it is difficult for him to say that he was misled by anybody. He knew what he had to do.

As a result the Industrial Tribunal found that his application was out of time and they declined to find that it was not reasonably practicable to have applied in time.

So far as the issue relating to the contract of services is concerned, it is our view that it is quite a difficult point for the Tribunal to decide because there were several factors they had to take into account when deciding what was the relationship between the Appellant and the Respondents. However, there is no suggestion that the Industrial Tribunal did not have all the relevant facts before it, and if that be the case, it would be difficult to argue that they did not take them into account. Having done so, they came to a conclusion that there was no contract of service.

This is an appellate tribunal. We can only deal with questions of law, not questions of fact. The only point of law that arises is whether the decision of the Industrial Tribunal was one which no reasonable Tribunal could have come to on the evidence. We feel that it would be quite impossible for us to come to such a finding when it is apparent from their reasons the Industrial Tribunal had given this matter such careful thought.

So far as the application being out of time is concerned, again there is no dispute. The Appellant admits that the application was out of time. The sole issue before the Tribunal was whether it was not reasonably practicable to have made the application in time. Again, this is a question of fact for the Tribunal to decide, having heard all the evidence and it is irrelevant whether we would have come to the same conclusion if the matter had been argued in front of us.

The Appellant has not appeared to argue this matter in front of us, but the above matters seem to be the relevant features of this appeal. We have considered them with care, and at the end of the day, feel there is no alternative for us but to dismiss this appeal.