United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR ROBERT HOWE (of Counsel) Messrs Orchard Solicitors 99 Bishopsgate London EC2M 3YU
For the Respondent	MR JOHN BOWERS (of Counsel) Messrs Wilkin Chapman Solicitors PO Box 16 Town Hall Square Grimsby DN31 1HE


 


JUDGE LEVY QC: This is an appeal from a decision of an Industrial Tribunal at Leeds held on 23rd July 1996, when on a preliminary point the Industrial Tribunal decided that an application by Mr G C Bartlett, who was in person, was presented outside the time limit of three months provided s.67(2) of the Employment Protection (Consolidation) Act 1978, but the tribunal found that it was not reasonably practicable for him to have presented the application within that period, and it was presented within such further time as was reasonable.

The appeal against that decision came before this tribunal on the ex parte basis on 15th January 1997, when it was permitted to come to a full hearing. At the full hearing today there has been a hard fought contest between Mr Howe for the employer, Burns International Security Services (UK) Ltd, the appellant, and Mr Bowers on behalf of Mr Bartlett. Below the appellant was represented by a representative from the Company.

The reason for the extension of time being granted is found in the conclusions of the Industrial Tribunal's decision. The originating application has been presented at the Central Office of Industrial Tribunals on 2nd May 1996. The applicant had been dismissed in March 1995, and therefore, says he was approximately a year outside the time limit of three months provided by s.67(2) (now s.111 of Employment Rights Act 1996) in presenting his application..

In paragraph 4 of the decision the tribunal say this:

"4. The applicant was unaware of any right to bring a claim for unfair dismissal in the Industrial Tribunal. He had attended the Job Centre, and had made application for unemployment benefit, but he assured us that at no time had the Job Centre informed him of his right to bring a claim for unfair dismissal.

5. It was during a conversation with a friend in mid April 1996 that the applicant became aware of the possibility of making a claim in the Industrial Tribunal.

6. He immediately sought advice of the Citizens Advice Bureau; he went to the Job Centre and obtained an originating application. He completed this and presented it at the Central Office of Industrial Tribunals on 2 May 1996."

Then in paragraph 9:

"9. Most people know of the existence of Industrial Tribunals and of the right to bring a claim for unfair dismissal, since the Tribunals have been in existence for 30 years. However, the applicant has said on oath that he did not know his right to come to the Industrial Tribunal; he only reads the local evening paper in Grimsby, and does not see any national newspapers; he left school at 16 in 1972 with no 'O' levels and clearly from his evidence had only a very limited knowledge of current affairs."

In paragraph 11:

"11. As soon as the applicant had heard of the possibility of a claim in the Industrial Tribunal he acted with commendable speed and we are satisfied that he acted within such time as we consider to be reasonable."

On behalf of the employer, Mr Howe has submitted that the tribunal clearly misdirected itself as to the correct test to be applied to the facts as it found them. He submitted first that the tribunal apparently considered that Mr Bartlett's mere subjective ignorance of his rights was sufficient to make it "not reasonable practicable" for him not to present his claim in time, but it did not go on to consider the objective element of this test, i.e., whether he could reasonably have been expected to be aware of his rights, or to make appropriate enquiries. As a second ground of appeal, he submitted that the tribunal failed to consider whether the extent of the delay was reasonable.

We have been cited many cases, and it is clear that most cases are decided on their own facts, but there are principles of law to be considered. One of the many cases which Mr Bowers cited to us was a unreported Court of Appeal decision of Moore v Thrings & Long [15th November 1996], where, of the periods of time, Waite LJ said:

"There is no dispute that the effects of this provision (as stated in Walls Meat Co v Khan [1979] ICR 52) is to require an Industrial Tribunal in a case where a complaint is presented after the three month period to consider two questions:

(1) was it or was it not reasonably practicable for the employee's complaint to be presented within three months?

(2) if it is found in answer to question one that it was not reasonably practicable, was the further period taken before lodging the complaint reasonable?"

We do not find the reasoning of the Industrial Tribunal satisfactory on either of these two questions.

Another of the cases which is being cited to us is Porter v Brandridge Limited [1978] ICR 943, where Waller LJ said at page 948:

"The onus of proving it was not reasonably practicable to present the complaint within a period of three months was upon the employee. That imposes a duty upon him to show precisely why it was that he did not present his complaint. He has to satisfy the tribunal that he did not know his rights during the whole of the period of 11 months and that there was no reason why he should make inquiries or should know of his rights during that period."

That leads back in turn to a decision of the Court of Appeal in Wall's Meat v Khan [1979] ICR 52 (to which Waite LJ referred), where Shaw LJ said at page 58:

"... They thus have jurisdiction to consider whether any extension of the time would be reasonable and if so, what should be its duration. It is in this latter context that it may be relevant to take account of such matters as failure to seek advice or to bestir himself in some was to ascertain what his position is in regard to his dismissal."

It is these sorts of questions which the Industrial Tribunal appears not have to asked, and then reached a decision which Mr Bowers accepted in the course of his address was an unusual one.

It seems to us that Mr Howe's submissions are right. We have considered whether it would be appropriate for us to substitute our own answer to the questions which should have been asked or to remit the matter to an Industrial Tribunal for a further hearing. Because of the contents of a letter, which we find at page 7 and 8 of our bundle, dated 1st May 1996, which Mr Bartlett sent to the Industrial Tribunal, which may or may not explain the reasons for the delay in part, we think that the matter has got to go back for a further hearing where this very long period has to be explained away before the conclusion which was originally reached by the Industrial Tribunal can be reached at a further hearing.

We will hear from the parties what route they think should follow, whether it should be decided by a Regional Chairman whether the case should be heard by a Chairman alone or whether they ask us to direct that it should be heard by a tribunal of three.

Having heard further submissions, we conclude that it should be left to the Regional Chairman to decide whether this matter should be determined by a rehearing by a Chairman alone or full panel. There is of course power under the law as we now understand it for it to be heard by a Chairman sitting alone.

Legal Aid taxation granted for the respondent.