United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS AMANDA DINGLE (Legal Executive) Messrs David Wagstaff & Co Solicitors Treviot House 186-192 High Road Ilford Essex IG1 1LR
For the Respondent	MR NIGEL MATTHEWS (The Respondent in person)


 


MR JUSTICE MORISON (PRESIDENT): By a unanimous decision of an Industrial Tribunal held at London (South) on 28th August 1996 Mr Matthews' complaint of unfair dismissal against the London Central Bus Co Ltd was accepted as falling within the tribunal's jurisdiction.

The facts relating to this matter may be shortly stated. Mr Matthews commenced employment on 2nd July 1990 with them, and was dismissed on 14th February 1996. Accordingly he had been employed by them for more than five years, but less than six, and as such under the statute was entitled to a minimum period of notice of five weeks. He was in fact on the occasion of his dismissal paid his minimum period of notice moneys in lieu of notice on that occasion. In those circumstances the question arose as to what was the effective date of termination of his employment. That question arose because his application to the Industrial Tribunal was presented on 29th May 1996 which was more than three months after 14th February 1996, but if time was to start five weeks after 14th February 1996, that is when the notice if given would have expired, then it was within time.

The Industrial Tribunal concluded that the effective date of termination of his employment for the purposes of the application of the three month time limit period dated from 20th March 1996, and therefore they held that the application was presented within time. In our judgment, that was a decision which was wrong.

The effective date of termination where moneys are paid in lieu of notice, is the date when the employee ceases to be employed. That is the date of the dismissal. In those circumstances, the effective date of termination was 14th February 1996. We do not need to review the provisions of the statute which governs this matter, it suffices to say that Section 97 of the Employment Rights Act 1996 does not apply so as to extend the period from 14th February 1996 to the 20th March 1996, because the provisions of Section 97 apply to extend the employment in circumstances such as in calculating continuous service for the purposes of calculating whether the applicant has two years continuous service a prerequisite to a tribunal's jurisdiction to hear a complaint of unfair dismissal.

In those circumstances, the question then arises as to whether the tribunal had jurisdiction to entertain Mr Matthews's application, bearing in mind that it was presented beyond the three month time limit period.

In this case Mr Matthews was a member of and consulted his union about his dismissal. The union was the Transport & General Workers Union ["TGWU"] of whom Mr Bill Morris is the General Secretary. The first thing we should say straight away is that on 9th October 1996 an Employment Appeal Tribunal presided over by me with Mr Crosby and Mr Morris ruled on an application to determine whether there was an arguable point of law, ruled that there was an arguable point of law, and that the matter should proceed to a full hearing. It is manifestly clear from what Mr Matthews has told us, that it was inappropriate that Mr Bill Morris should have been a member of that tribunal, because, and I am sure quite unwittingly on his part, he had actually been written to by Mr Matthews in connection with Mr Matthews's dismissal. He was therefore plainly disqualified from considering the matter as a member of the Employment Appeal Tribunal. We, therefore, being a freshly constituted panel have reviewed the previous decision, and have come to the clear conclusion that the decision was correct, but we wish to make it plain to Mr Matthews that we have looked at it again.

He wrote to Mr Morris, seeking assistance in connection with his dismissal; and what he had told us this morning which we have no reason to doubt, is that he was passed from one person to another over a lengthy period of time and was not given the support and advice which he believes he was entitled to receive. Whether or not that constituted negligent conduct on their part, and whether or not that negligence, if it were negligence, caused the late presentation of this complaint is not a matter on which we can reach any conclusion and do not do so. It is sufficient for our purposes, however, to note that Mr Matthews did have access to and made contact with an organisation which was capable of giving him proper advice as to the obligation to present a complaint within the relevant time limit period. Accordingly this is not a case, in our judgment, where it can possibly be said that it was not reasonably practicable for Mr Matthews to present his complaint within the three month time limit, that is three months from 14th February 1996.

Accordingly, the application having been presented out of time, in circumstances where it was reasonably practicable for it to have been presented within time, deprives the Industrial Tribunal of jurisdiction to adjudicate upon this complaint, and we therefore allow the appeal. At the same time we express considerable sympathy with Mr Matthews, who we regard more as the victim of the circumstances, rather than as the author of his own misfortune.