United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD GREENING (of Counsel) Messrs Tayntons Solicitors 8-12 Clarence Street Gloucester GL1 1DZ
For the Respondents	MISS MELANIE TETHER (of Counsel) Messrs Wragge & Co Solicitors 55 Colemore Row Birmingham B3 2AS


 


JUDGE COLIN SMITH QC: This is an appeal by the appellant, Mr P R James against the decision of an Industrial Tribunal held at Bristol on 27th November 1995, when the Chairman, sitting alone, decided that the Industrial Tribunal could not consider the appellant's complaint for unfair dismissal because the Chairman found that a complaint had not been presented within three months of the appellant's dismissal on 14th October 1987, and that it was reasonably practicable for such a complaint to be presented within the time limit set by section 67(2) of the 1978 Act.

The appeal and cross-appeal raise three points which can be summarised as follows. Namely:

(1) Whether in all the circumstances in deciding the question whether a complaint had been presented to an Industrial tribunal before the end of the period of three months from the dismissal the Chairman had jurisdiction to consider and make findings in relation to the appellant's case that he had completed and sent an originating application to the Industrial Tribunal within three months of 14th October 1987.

(2) Whether if so the Chairman's findings that the appellant did in fact complete and send an originating application in proper form to the Industrial Tribunal within three months of his dismissal was a perverse finding in that there was no evidence to support it.

(3) Whether, and this is the main point on appeal, the Chairman was wrong in law in concluding that the completion and delivery by the appellant to the Industrial Tribunal of the 1987 originating application within three months of his dismissal did not amount to the presentation of a complaint within section 67 of the 1978 Act in that the Chairman misconstrued the effect of section 67 and Rule 1(3) of the 1985 Regulations.

The Background

As is apparent from the decision of the Industrial Tribunal, the further prosecution of this complaint by the appellant that he was unfairly dismissed arises as a result of the fairly recent Court of Appeal decision of R v Secretary of State for Employment ex-parte Seymour-Smith and Perez [1995] IRLR 449. It was as a direct result of the promulgation of that decision as we understand the situation that the appellant presented his complaint to the Industrial Tribunal dated 4th September 1995 and received by the Industrial Tribunal on 25th September 1995, i.e., almost eight years after his dismissal in October 1987.

Following that decision the appellant will, if enabled so to do, seek to contend that the Industrial Tribunal should dis-apply the amendment which was made to section 64(1)(a) of the 1978 Act by the Unfair Dismissal (Variation of Qualifying Period) Order 1985 to increase the qualifying period for acquiring the right not to be unfairly dismissed from one to two years.

The appellant was employed by the Wesleyan Assurance Society Ltd as a life inspector from 28th October 1985 until he was summarily dismissed without notice on 14th October 1987. The appellant wishes to maintain that he was unfairly dismissed. Plainly he would not qualify in any event to complain of unfair dismissal unless he can rely upon the Seymour-Smith and Perez case. But another difficulty faced the appellant because, in order for an Industrial Tribunal to consider his complaint and to decide the issues under the Seymour-Smith and Perez decision, and whether or not the dismissal was fair, the appellant had to establish that he had presented his complaint within three months of the dismissal or that it was not reasonably practicable for him so to do.

The Chairman having considered the case of Biggs v Somerset County Council [1995] IRLR 452 and the judgment of the President in that case, decided with regard to the 1995 application that he was not satisfied that it was not reasonably practicable for the applicant to have presented his complaint within three months of the dismissal. He held following Biggs v Somerset County Council and Mrs Margaret McManus and others v Daylay Foods Ltd [Appeal No. EAT/92/95] another decision of the Employment Appeal Tribunal, and applying the principles in those cases to the Seymour-Smith and Perez case, that the correct analysis was, on the present state of the law, that although the domestic legislation said the direct opposite, the appellant in fact always had the right to present a complaint for unfair dismissal, and accordingly he must be deemed to have known that this was always the law. There is no appeal before us today in relation to that finding of law. In any event the Chairman went on, on the basis that the decision in Biggs might be overruled by the Court of Appeal, so that it was not reasonably practicable for the appellant to present his complaint within three months, to exercise his discretion under section 67(2) to hold that it would not be reasonable for him to grant the required extension of time, i.e., some eight years to enable the appellant to proceed with the complaint which he had presented in September 1995. Here again there is no appeal from this alternative ground for the decision.

Thus it is apparent with regard to the originating application presented by the appellant in September 1995, the Industrial Tribunal held:

(1) It was reasonably practicable to present that complaint within three months of the dismissal so that the Industrial Tribunal could not consider it.

(2) In the alternative, that no extension of time would be granted under section 67(2) with the same result.

There is no appeal against either of those decisions.

However, it is apparent from the decision of the Chairman that, as part of his decision as to whether there was before him a complaint which satisfied the requirements of section 67(2) of the 1978 Act, the Chairman considered submissions made to him by the appellant, then in person, relating to the appellant's assertion that within three months of his dismissal he had completed and sent an originating application to the appropriate Industrial Tribunal office of which the appellant could not produce a copy and which the appellant believed had been returned to him by that tribunal office. By paragraph 2 of his decision, the Chairman made important findings relating to those submissions by the appellant. Thus in paragraph 2 of the decisions the Chairman found as follows:

"2 The applicant commenced employment with the respondents on 28 October 1985. He was dismissed from that employment without notice on 14 October 1987. He says that he completed and sent an Originating Application to the Industrial Tribunal within the period of 3 months following his dismissal. He is unable to produce a copy of that document and registration of it for the period from the date of his dismissal to the end of 1988 cannot be traced by the Tribunal Office. He thinks that it may have been returned to him. It seems to me likely that he was asked by the Tribunal, under the provisions of Rule 1(2) of the Rules of Procedure contained in Schedule 1 to the Industrial Tribunal (Rules of Procedure) Regulations 1985, which were the Rules of Procedure then in force, if he wished to proceed with his unfair dismissal complaint because he had less than 2 years' continuous employment with the respondents and that he failed to notify the Tribunal that he wished to proceed. Whilst the applicant is not able to produce a copy of this document or any papers relating to this matter there is no reason why I should not believe that he took these steps and I propose to deal with this issue on the basis, in fact, did so."

On the basis of those findings which he made, the Chairman held however, in paragraph 6 of the decision, that the sending of the 1987 originating application to the Industrial Tribunal could not amount to the presentation of an originating application within the time limit prescribed by section 67(2) because, so the Chairman held, of the effect, as he found it to be, of Rule 1(3) of the Rules, i.e., the Industrial Tribunals (Rules of Procedure) Regulations 1985. Under Rule 1(3) of the 1985 Rules of Procedure it is provided that in circumstances where a notice has been served under Rule 1(2) an application is not to be treated as received for the purposes of Rule 2 unless the applicant notifies the Secretary of Tribunals that he wishes to proceed with it. Basing himself upon this Rule, the Chairman decided that in circumstances where a notice had been served on an applicant under Rule 1(2) that an application would not be registered unless the applicant stated in writing that he wished to proceed with it; then if no such written notice is given, the effect in law by virtue of Regulation 1(3) is that the application is not any longer to be regarded as presented with section 67(2) of the 1978 Act or Rule 1(1) of the 1985 Rules. Thus the Chairman appears to have held that because an application in circumstances where no written notice is served by the applicant under Rule 1(2) is to be treated as not having been received for the purposes of Rule 2, it must follow from that that it can no longer be regarded as having been presented for any purposes including section 67(2) of the 1978 Act.

We turn directly to consider the submissions before us dealing with this main point of law which we have identified above as the third matter for our consideration. Counsel for the appellant, Mr Greening, submitted that it is quite clear upon authority, namely that of the Court of Appeal in Hetton Victory Club Ltd v Swainston [1983] ICR 341 particularly the judgment per Waller LJ at page 345B-G and from Dodd v British Telecommunications plc [1988] ICR 116 particularly at page 122C-H, that presentation of a complaint occurs when the complaint is in fact physically delivered to the relevant tribunal office, and that presentation does not require any action on the part of the body to which presentation is made. He submits, therefore, on authority, that we are bound to hold, on the findings of fact of the Chairman relating to the 1987 application, that the 1987 originating application was duly presented. He submitted further, that nothing in Rule 1(3) of the 1985 Rules in any way alters or affects this position. He submitted that the only effect of that provision, i.e., Rule 1(3),properly construed, is that in circumstances where the Rule applies (and they would have applied to the appellant's 1987 application) the application shall not be treated as received, and these are the key words in his submission, "for the purposes of Rule 2". It is only for the purposes of Rule 2 that the application is to be treated as not being received. For all other purposes he submits it is to be treated as received and thus it remains properly presented within section 67(2) and Rule 1.

Counsel for the respondents, Miss Tether, submits that so to construe the effect of the Act and the Regulations offends common sense. She submits that the practical common sense construction of Rule 1(3) is that unless notice is given in writing by the applicant that he wishes to proceed, he cannot pass through the gateway, as she called it, of action under Rule 2, which enables the complaint to be registered, served on the other side and in due course considered by an Industrial Tribunal. She submitted that the Rule should be interpreted so that unless the applicant can get through the gateway to Rule 2 in one way or another, the application must be deemed to be set aside and no longer presented, so that section 67(2) must be read as subject to Rule 1(3) and Rule 2 of the 1985 Rules. She submits that Industrial Tribunals are set up to provide a speedy form of relief. An application should not be allowed to linger on or wither on the vine in some sort of limbo where it is incapable of ever being served upon the other side or considered by an Industrial Tribunal.

We have found this to be a short but difficult point of construction. We have concluded that on this point the appellant is right because:

(1) On authority it is clear that an originating application can be presented by being physically delivered to the relevant office of tribunals without any action needing to be taken by the office.

(2) On the plain wording of Rule 1(3) an application is only to be treated as not having been received "for the purposes of Rule 2", and in our judgment not for any other purposes.

(3) In our judgment there are difficulties in construing Rule 1(3) as being capable of invalidating the presentation of a timeous complaint, since there is no secondary time limit by which a written notice must be given by an applicant that he wishes to proceed under Rule 1(3). Thus it would be quite unclear and uncertain at what point in time as a matter of law the original presentation of complaint no longer had that status.

(4) Because we do not consider that our decision will open the floodgates to many claims made years ago being revived. In order for a complaint to be revived it must still have been presented within three months of the dismissal.

(5) Because we do not consider that the effect of our decision in any way gives the appellant an unfair advantage over those who have pressed on with their complaints and had them dismissed on the basis of United Kingdom law prior to the recent cases of Biggs and Seymour-Smith and Perez.

(6) Because there is no real prejudice to the respondents in our judgment, since they still will be able to argue that the appellant's complaint should be dismissed for want of prosecution, and/or that despite Seymour-Smith and Perez he is not able to bring a claim for unfair dismissal because he does not have the necessary service.

We find, accordingly, in relation to that first main ground of appeal, that the Chairman did err in law in relation to his construction of the relevant legislation.

We turn on to consider the other two points raised on the appeal and cross-appeal. Counsel for the respondent submitted that the Chairman had no jurisdiction in any event to entertain argument or make findings in relation to the 1987 application, because no proper written notice had been served by the applicant under Rule 1(3). We do not accept this submission. In our judgment the relative informality of proceedings such as these entitled the Chairman to consider whether the 1987 application was in time in the light of what had emerged at the hearing. The presentation of the 1995 originating application which was properly before him together with the submissions made by the appellant in person before the Chairman, in our judgment amounted to a sufficient notice in writing under Rule 1(3) to give the Chairman such jurisdiction.

Finally we consider whether the Chairman's finding of fact, in relation to the 1987 originating application were in any way perverse findings. In our judgment it was open to the Chairman to make the findings he did in relation to the 1987 originating application without hearing sworn evidence on the matter. It is plain from his decision that he heard and accepted submissions from the appellant and that he investigated the matter carefully. We are satisfied that there was sufficient material before him to enable him to conclude the primary facts relating to the 1987 application were established, i.e., that it was in proper form and physically delivered to the relevant office of the Industrial Tribunals within three months of the dismissal.

Accordingly for those reasons this appeal on these narrow grounds is allowed since we hold as a matter of law that the 1987 application was presented in time under section 67(2), and that the Industrial Tribunal has jurisdiction to hear it in accordance with the Rules and we remit it to the Industrial Tribunal in order for them so to do.

Legal Aid taxation granted to the appellant.