United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MILLER (Representative) Free Representative Unit 49-51 Bedford Row London WC1R 4LR


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether the Applicant, Mr Amir Nejad, has an arguable point of law in respect of a prospective appeal against a Tribunal's decision, which was sent to the parties on 19 August 1996, by which they concluded, as a preliminary issue, that his complaint of unfair dismissal was presented out of time.

There is no dispute in this case that the complaint of unfair dismissal was one day out of time. It is not in dispute that the test, which the Tribunal had to apply, was the question as to whether it was reasonably practicable for the complaint to be presented before the end of the period of three months; in other words, within time.

The Industrial Tribunal heard evidence from the Applicant, which is set out at paragraph 7 of their Decision. Included within those facts, as they were found by the Tribunal, was the fact that the complainant had been to the Citizens Advice Bureau for advice on his employment position and his rights in relation to unfair dismissal, very soon after the termination of his employment. It was his evidence that the adviser told him that, as he had less than two years' service, there was no point in fixing an appointment for him to come and see the adviser again, as he had no case for unfair dismissal.

The Tribunal next note that, on 14 June 1996, a serious incident occurred at his home involving his neighbour. They obviously were referring to something which occurred which was relevant to the question as to whether it was reasonably practicable for him to have lodged his complaint.

In paragraph 7(5) they say this:

"(5) A day or two before he presented his IT1 to the Tribunal, he was at his local unemployment office and he was advised by a woman officer at that office that he had a good case and he was encouraged to proceed. She gave him an 0800 number to telephone for further advice. As a result, he finally faxed his IT1 to the Tribunal on 6 September 1995."

The Industrial Tribunal's decision is recorded in paragraph 9 which I will incorporate into this judgment, but not read at the present moment.

It is submitted, on behalf of the prospective Appellant, by Mr Miller, with considerable ability in support of a clearly set out skeleton argument, that the Industrial Tribunal have misdirected themselves in law. He took us straight to paragraph 9 which contains the Tribunal's reasoning and he argues that, effectively, what the Industrial Tribunal have done is to say that, because the Applicant sought advice from the Citizens Advice Bureau, that was effectively an end of the matter and that, even if he was given bad advice, that would make no difference to the question as to whether it was reasonably practicable for the complaint to have been presented within time. He correctly drew our attention to the decision in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 and to the passage of May LJ in the judgment, which is set out at the penultimate page at letter 'B', and I just cite the first sentence:

"What, however, is abundantly clear, on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie."

The Court thereafter indicated that there were a number of considerations to which the Industrial Tribunal would direct their attention, with the sentence at the end of that passage which reads:

"Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account."

The second authority to which our attention was drawn is the case of London International College Ltd v Sen [1993] IRLR 333, and in particular, the judgment of Bingham LJ, the Master of the Rolls, who indicated that the law cannot be, that merely because an individual has consulted a legal adviser and received advice, that inevitably prevents him from arguing that it was not reasonably practicable to put in his complaint within time. The argument that was rejected was that just because there may be a target which could be sued, it followed that the employer was in a better position than he would have been if the employee had gone and sought advice from somebody who could not be sued.

It seems to us that those cases will have been well known to every Industrial Tribunal and we approach this case in the expectation that the Tribunal have correctly applied the law in this matter.

Against that background it seems to us that no criticism can be made of the Industrial Tribunal's decision at paragraph 9. The Industrial Tribunal plainly were looking at all the facts, including the fact that wrong advice may have been given to the Applicant, but they have noted that a day or two before he presented the IT1 to the Tribunal, he was given what, on any view, was encouraging advice. The fact that he finally faxed his IT1 to the Tribunal on 6 September, one day out of time, was strongly indicative of the fact that the Applicant could have faxed his Originating Application to the Industrial Tribunal the previous day, because it was a day or two before he presented his IT1 that he received this encouragement.

It seems to us in those circumstances that the sentence which reads:

"Regardless of the quality of the CAB's advice, it cannot be said that, having received such advice, it was not reasonably practicable for him to present his IT1 to the Tribunal within the statutory three month limitation period"

is a reflection of the facts which they have set out in paragraph 7, including the fact that it was a day or two before the complaint was actually presented, that he discovered that he had a good case.

In those circumstances, bearing in mind the three-month time limit, it was his obligation to deliver the complaint by fax, if needs be, to the Industrial Tribunal the previous day. It would then have been within time.

It seems to us, in those circumstances, that the Industrial Tribunal have complied with their obligation to have regard to the facts in the light of the authorities which were binding on them.

Accordingly, we will dismiss this appeal as it does not seem to us to raise an arguable point of law, despite Mr Miller's cogent and well presented arguments.