United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE KEENE: This is a preliminary hearing held for the appellant to show cause why his appeal should not dismissed for failing to disclose an arguable point of law.

His claim before the Industrial Tribunal was for unfair and wrongful dismissal by his employers, the respondent in this case. The Industrial Tribunal dismissed his claim on the basis that it was out of time. It was agreed that his employment by the respondent was terminated on 15th December 1995, so that the originating application should have been filed by the end of 14th March 1996, in accordance with s.67(2) of the Employment Protection (Consolidation) Act 1978, as it then was. In fact the originating application - IT1 - was only filed on 23rd March 1996, nine days out of time.

This matter then came before the Industrial Tribunal to determine whether or not the terms of that provision s.67(2) had been satisfied. The Industrial Tribunal correctly approached the question of whether it could and should exercise its power to extend time under that subsection. The tribunal correctly noted that it could only extend time where it was satisfied:

"that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

There was and is no doubt that during the three months following his dismissal a great deal happened to the appellant. Three days after his dismissal he went to the respondents' offices armed with a cigarette lighter and a can of petrol and threatened to set fire to the premises. He was arrested and charged but released on bail. During the three months following the termination of his employment, he appeared twice in the Leigh Magistrates Court for remand purposes. The tribunal noted that he was on bail throughout those three months.

He made one attempt at suicide and was referred to a consultant psychiatrist. He was at all times an out patient during his psychiatric treatment. Although he was depressed and distressed, the tribunal found that he was not disabled, and in particular it noted that in the middle of February 1996, during the three month period, the appellant went to see and was advised by a very experienced trade union solicitor. As the tribunal said in its decision, at that stage with four weeks still to go the appellant was aware that the clock was running and that he had to get his application in in time. In fact the advice of the trade union solicitor was that on its merits the claim was unlikely to succeed, and as a result of that the appellant then sought alternative advice.

However, as the tribunal accepted, the appellant was preoccupied with the more pressing problems of the forthcoming criminal trial and so he let matters slip. In effect the tribunal found that he did not give this matter the priority that it needed. We note that there was no suggestion that the appellant was at any stage misled by his employer or anyone else as to the time limits. The tribunal concluded that he was aware of the time limits and of the possibility of making a claim for unfair dismissal so long as it was done within that time.

The tribunal properly took into account the fact that the appellant had been expertly advised. It held that in all the circumstances it was at all times, and certainly during February and early March 1996, reasonably practicable for him to have brought this claim within the statutory three months.

Today, Mr Kane who has appeared on his own behalf, has really endorsed the finding of the tribunal that he was preoccupied with his other problems. As he has said to us today, he did not have the time and inclination to get things sorted out because of the pressure of the pending court case. He said to us that he was under real pressure and, as a result, he could not get his head round things. He has argued that there is a point of law because he suggests that the Industrial Tribunal Chairman did not take into account the degree of pressure that he, the appellant, was under given the pending serious criminal charges which he faced.

Like the Industrial Tribunal, we feel some sympathy for the appellant. But we are required to ask ourselves whether there is any arguable point of law raised in this appeal. Whether we would have made the same decision as the tribunal is not the point. The decision that it made was one of fact for it to decide. We cannot accept the argument that the Industrial Tribunal Chairman failed to take into account the preoccupation of the appellant with his pending court case. The Chairman expressly mentions that in his lengthy and careful decision. The weight to be attached to that as a factor was, as is well-known, a matter for the tribunal to decide. It seems to us that the tribunal adopted the correct approach as a matter of law to this issue. Since its decision was essentially one of fact, it can in a case like this only be regarded as wrong in law if no reasonable Industrial Tribunal properly directing itself could have reached this conclusion on the evidence which it had before it. In our view the proposition that no reasonable tribunal could have arrived at that decision is unarguable.

With some regret, it has to follow that there is no arguable point of law disclosed in this appeal, and on that basis, this appeal must be dismissed at this stage.