United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE PETER CLARK: Mr Parmar was a loyal and long serving employee of the Respondent. His employment extended from October 1971 until termination by the Respondent on grounds of his age on 30 September 1996. He was then aged 62 years.

He was very unhappy that the Inland Revenue wished to dispense with his services before he reached the age of 65. He appealed internally to everyone that he could think of. That took time. That process finally ended on 5 February 1997. When every internal avenue had been exhausted he resorted to the Industrial Tribunal. He presented a complaint of unfair dismissal on 12 February 1997, more than six weeks after the ordinary three month limitation period had expired.

The Respondent resisted the claim. They took two preliminary points, which went to the Industrial Tribunal's jurisdiction to hear his complaint. First, that he had passed the normal retirement age of 60, and was therefore excluded from bring his complaint by virtue of Section 109 of the Employment Rights Act 1996 (the Act); secondly, they took the limitation point.

Both those preliminary issues were taken before a Chairman sitting alone at the Stratford Industrial Tribunal on 28 July 1997. He found for the Respondent on both counts, and for the reasons which he gave with a decision promulgated on 14 August 1997, he dismissed the complaint.

Now there is an appeal by Mr Parmar against that decision. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go to a full appeal hearing. Mr Vineall, who appears on behalf of the Appellant under the ELAAS pro bono scheme, accepts that he must show an arguable point of law in relation to both points if this matter is to proceed any further.

We deal first with the limitation point. Plainly the claim was presented outside the primary limitation period provided for in Section 111(1)(a) of the Act. The question before the Chairman was whether the Appellant was able to rely on the escape clause in Section 111(2)(b), that is, that it was not reasonably practicable for him to present the claim within time and that he presented the complaint within such further period as the Industrial Tribunal considers reasonable. The Chairman dealt with that point at paragraph 5 of his reasons in this way:

"It is clear that the Applicant is out of time, but he has asked me to entertain his application so far as it contains a complaint of unfair dismissal under section 111(2)(b). I must decline to do so as it was, in my judgment, reasonably practicable for the Applicant to have presented the application before the end of the period of three months. The only reason advanced by the Applicant for not presenting the Originating Application sooner is that the Respondents delayed answering letters of appeal from him. It is clear law that such delay does not prevent time running against the Applicant. By parity of reasoning, insofar as the Applicant claims a breach of contract, I also must decline to entertain that claim. This Tribunal has no jurisdiction to hear his claim or claims by reason of their being out of time."

In support of this part of the appeal Mr Vineall has drawn to our attention the steps which the Appellant took to pursue the matter internally, culminating with his final appeal to the adjudicator which received an unfavourable reply on 5 February 1997. He has been unable to cite to us any authority which might assist the Appellant in persuading this Tribunal that the Chairman erred in law in the conclusion which he reached as to limitation.

In our judgment the Chairman correctly stated the law. Time here began to run on 30 September 1996, not when Mr Parmar's avenues of appeal internally were exhausted: see J Sainsbury Ltd v Savage v [1981] ICR 1. Further, the Court of Appeal have stated in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 that the question as to whether it was reasonably practicable for the complaint to be presented within time was essentially one of fact for the Industrial Tribunal, and that delay pending the outcome of an internal appeal will not, of itself, be a good ground for extending time under the reasonably practicable formula, thus resolving the conflict between two earlier Employment Appeal Tribunal authorities, Crown Agents v Lawal [1979] ICR 103 and Bodha v Hampshire Area Health Authority [1982] ICR 200.

Applying that guidance we find ourselves unable to hold out any prospect of this part of the appeal succeeding at a full hearing.

Mr Vineall, on the Appellant's instructions, nevertheless invites us to go on to consider the second part of the appeal in relation to the normal retirement age point. We decline to do so. Our finding on the limitation point means that even if the Appellant had a good point of appeal and we express no view on this part of the case, in relation to the normal retirement age point, the Industrial Tribunal's decision that it had no jurisdiction to entertain this complaint would, in any event, stand.

In these circumstances we see no purpose in adjudicating on the second point and for these reasons this appeal must be dismissed.