United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1325_95_2006

Appeal No. EAT/1325/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th June 1996

HIS HONOUR JUDGE J HULL Q.C.

MRS J M MATTHIAS

MR N D WILLIS

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MR J CONNOLLY          APPELLANT

HOECHST ROUSSEL LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR P ARCHER

(Advice Worker)

Thamesdown Law Centre

26 Victoria Road

Swindon

Wiltshire

SN1 3AW


 


JUDGE HULL Q.C.: This is an appeal to us by Mr John Connolly, and we are holding this hearing in accordance with our Practice Direction to see whether Mr Connolly has a fairly arguable point of law on which he can proceed.

Mr Connolly, who is now aged 60, was employed for a substantial period as a leading process technician in manufacture and packaging by the respondents, the well-known firm of Hoechst Roussel Ltd in Swindon.

His employment began on 3rd September 1979 and he was dismissed, allegedly for redundancy, on 30th November 1994. There were no proceedings at the time, but at the end of July 1995, according to Mr Connolly, he discovered that he had been "replaced", as he put it in his application to the tribunal; that is to say not that he had been replaced at the time, but that he had been replaced rather more than eight months after the alleged redundancy.

He went off to see an adviser (I think Mr Archer who has appeared before us today, to whom we are very grateful) and on 15th August 1995 he issued his IT1 to the Industrial Tribunal complaining of unfair dismissal. Putting it very shortly, what he was saying was "I was not truly redundant and I invite the tribunal to make that inference from the fact that I was replaced in July". He was of course out of time under Section 67 of the Employment Protection (Consolidation) Act 1978. The tribunal is prevented from trying cases where the complaint is not made within three months of the effective date of termination of the employment, save in exceptional circumstances. Section 67(2) provides:

" (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 or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

That is a strict period and the ratio of it, the reason underlying it, is that Parliament intended these tribunals to act in a summary way. It was hoped, when the legislation was passed, that in many cases a person who had been unfairly treated by an employer would be reinstated or re-engaged and of course if that was to happen it was necessary for the proceedings to be heard summarily and quickly. Unhappily to some extent that has been disappointed in practice. But that does not mean that the time limit is not a strict one; the words "not reasonably practicable" are strict, and they gain added strictness from the fact that the burden is and always has been on the employer to show what is the cause of the dismissal under Section 57. It must be an admissible reason for dismissal. So that if in the present case Mr Connolly had made his complaint within the three months the burden would have been on the employers to say and prove that he was redundant.

The Court of Appeal has however recognised that there are cases where an employee has quite reasonably concluded that the reason for his dismissal is (for example) redundancy and that he has been treated fairly, and he then finds out after three months has elapsed something which shows quite plainly that that was not so. In those circumstances the tribunal is entitled, but not bound, to find that it was not reasonably practicable for the complaint to be brought within the three months and to entertain an application made within a reasonable time thereafter. A number of cases which have been concerned with that. The case of Machine Tool Industry Research Association v Simpson is a case in the Court of Appeal reported in [1988] IRLR 212. The facts were very different in that case.

[The headnote] "When Ms Simpson was told that she was being made redundant, she had no reason to suspect that there was anything unfair about her dismissal. She knew that her employers were considering a move which would involve staff reductions and so accepted that she was being dismissed on grounds of redundancy.

Subsequently, however, she heard that another employee had been re-engaged. That led her to believe that the real reason for her dismissal may not have been redundancy. She therefore made a complaint of unfair dismissal but that was received by the Industrial Tribunal some three days outside the statutory three-month time limit."

In the present case the learned Chairman who was hearing the application for leave to proceed, notwithstanding that more than three months had elapsed, cited from that decision in the Court of Appeal, a passage in the headnote:

"An industrial tribunal is entitled to find that it was not reasonably practicable for a complaint to have been presented timeously where during the three months' limitation there were crucial facts unknown and reasonably unknown to the applicant which then became known as facts to him such as to give him a belief and a genuine belief that he had a claim to be brought before the industrial tribunal."

Now, the Chairman of course was perfectly entitled to cite from the decision of the Court of Appeal. He then went on:

"3 The applicant's case is that in July 1995, as a result of various re-organisations within the employer company another employee then appeared to be doing what was his old job. He accepts that that did not occur until July 1995 [in other words, more than eight months after his redundancy] and has not produced any evidence to suggest that there was any significant fact which had occurred during the three month limitation period and which he only later discovered. The relevant fact did not occur until July 1995."

What is said by Mr Archer is that that shows that the Chairman was taking a wrong approach. In the grounds of appeal (which I think are drafted by Mr Archer) he says:

"The rationale of the decision is that a late claim on the basis of "unknown facts" can only succeed if those unknown facts occurred within 3 months of dismissal. It is submitted that this is an error of law. It is submitted that there is no authority to support the proposition that the "unknown facts" must have occurred within 3 months of dismissal."

All the Court of Appeal was saying was that as a matter of law (for reasons which I do not need to go into at length) it is open to a tribunal, notwithstanding the matters I have referred to, to say that it was not reasonably practicable for the complaint to be presented within three months, if the employee finds out something after the three months, which in fact occurred during the three months, that is manifestly correct. Because of course the question of whether there was a redundancy or not has to be judged at the time of the redundancy. It may well be that events which occur a short time afterwards, or indeed a long time afterwards, will assist the tribunal in arriving at their conclusion about that, but they must logically point back to what happened within the period of three months and often probably much closer than that, right back to the time of redundancy.

It seems to us that the Chairman was merely observing, as he was entitled to observe, that here there was no suggestion that the job had been replaced within the three months; on the contrary, there was no replacement for the applicant until more than eight months later. Did that point back to the time of redundancy so as to show that there were unknown factors at that time, unknown to the applicant, so that he could now say that it was not reasonably practicable for him to bring the matter before the tribunal within three months? That must be a question of fact for the tribunal. The Chairman or the full tribunal must have in mind the provisions of Section 67. It must bear in mind that if there has been deceit or concealment by the employer that may make it "not reasonably practicable". It may well be that if something is discovered shortly afterwards, that that will throw a flood of light back three months to show that indeed it was not a question of redundancy at all. Those were matters of fact for the Industrial Tribunal.

It is perhaps right to record that the employers strongly challenge what was said. The Chairman had before him the IT3 in which they said that in fact there had been a very substantial reduction in numbers, including those in the grade of the applicant. Although it was true that one man had been promoted (which was what the applicant was talking about) to his own grade, there were now fewer of them too. That was what the employers said, but of course the Chairman was not going to go into all that. He was not bound to set out the entire jurisprudence on what Section 67(2) means. What is said is by Mr Archer, is that that shows an error of approach by him because logically there may be events which occur after the three month period which show that it was "not reasonably practicable". We accept that as a hypothetical matter; of course they may legitimately point back to the time of dismissal and are apt to show a different state of affairs from that which the employee reasonably took to be the position. The Chairman was of opinion in the present case that that was not so, and that was a question of fact for him. The test was not satisfied in this case.

We think that he was fully entitled to take the view which he did as a matter of fact. We do not think that what the Court of Appeal said in that very different case was intended to lay down any strict logical rules, and we do not think that the Chairman was adopting any strict logical rules, he was merely saying that this discovery, eight months later, did not point back to significant facts within the three month limitation period. It seems to us that that is the fair way to read this decision. So far as one can tell on paper, it was the sort of decision which in the circumstances one would expect. This is a strict test, it is a strict time limit for reasons which are benevolent both to applicants and to respondents. It must only be the exceptional case which is allowed to proceed after the three months is over, when something like eight months or more has elapsed. So in the circumstances we say that we can find no arguable point of law here, even with Mr Archer's assistance. The appeal must be dismissed now, rather than going on to a full hearing.