United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BROWN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law against a jurisdictional decision of an Industrial Tribunal held at Lincoln, by which it concluded that Mr Cussons' complaint of unfair dismissal had been presented to them out of time, and they were not prepared to extend the time for considering it.

The complaint was against his former employers, the East Lindsey District Council, by whom he had been employed from 1988 until the effective date of termination of his employment, which was 5 September. He exercised his right of appeal and on 16 October 1995 his appeal was rejected. He told his union that he now wished to proceed by way of a complaint to an Industrial Tribunal and, assuming that the union would be dealing with the matter, went on holiday, returning on 1 December 1995 to find a letter from the union saying that they could not support an application to an Industrial Tribunal.

On 4 December the employee visited the local CAB for the second time. He had previously been there on 8 September in connection with benefits and had obtained a pamphlet giving advice in connection with Tribunal proceedings, which pamphlet contains information about time limits.

On the visit that he made on 4 December he was told to take Solicitor's advice and arranged an appointment for 7 December. A complaint should have been lodged by 4 December 1995 and the Solicitor advised him that any such application was now out of time, but that he should seek Counsel's advice. Apparently, Counsel was not instructed by the Solicitor until April and Counsel wrote an advice on 22 May 1996.

The statutory provisions which apply to time limits in Industrial Tribunals is now very well known. The first question they must ask themselves was, whether it was reasonably practicable for the employee to have presented his complaint within three months of the effective date of termination of his employment. He had available to him, although he did not read, the information about the time limits. He was therefore potentially aware of the time limits as of 8 September. He could be forgiven for thinking that his union would be dealing with the matter between the period of 16 October and 22 November.

Having received the bad news from his union, whilst one could criticise the period of time he took between 22 November and 4 December, it seems to us that that would be somewhat harsh, but it does seem to us that, as of 7 December, it was the duty of his Solicitor either to present a complaint then and there to the Industrial Tribunal or to take advice from Counsel immediately, so that the position could be considered before a complaint was lodged.

We have no doubt at all that the Industrial Tribunal were entirely justified in concluding that the further delay of over five months before the presentation of the complaint was wholly unreasonable and therefore, even if they would have extended time up until 7 December, they were correct, in my judgment, as a matter of law, in the conclusion that they arrived at that it would not be just or reasonable to extend the time by a period of five months. That being so, it seems to us that the grounds of appeal in this case do not raise any arguable point of law.

Mr Brown has attractively presented to us an argument by analogy with a decision of the Court of Appeal relating to the just and equitable provision in the time limits in the discrimination legislation. It seems to us that that decision has no bearing on the decision that was arrived at in this case, and we would emphasise that there is a manifest distinction drawn by Parliament between the time limit provisions in relation to unfair dismissal on the one hand, and discrimination on the other.

Accordingly, we are satisfied that there is no arguable point of law. It is always unsatisfactory when cases are dealt with on technical procedural grounds so that an employee does not have the opportunity of having his grievance properly determined, but it seems to us that in this case the Industrial Tribunal were right to apply the law as it stands, in the way in which they did, and accordingly, the appeal must be dismissed.