United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE C SMITH QC: This is an application by Mr Solly for leave to proceed to a full hearing of an appeal against the decision of the Industrial Tribunal, the Chairman sitting alone, held at Bury-St-Edmunds on 14 February 1997, when the Chairman decided that the Applicant's complaint for unfair dismissal was out of time so that the Industrial Tribunal had no jurisdiction to hear it.

We have had the benefit of a very clear and relevant submission by Mr Stewart, on behalf of Mr Solly, in which the point is taken that the Industrial Tribunal here, should, on the facts that they found, have followed the principle laid down in the case of Owen v Crown House Engineering Ltd [1973] ICR 511, in the sense that it is submitted to us that, as the Industrial Tribunal found in this case, that the Applicant, Mr Solly, believed that he had arrived at an oral agreement with the University, then in those circumstances, that was a situation which was analogous with the situation that obtained in Owen, when the employers there had specifically requested that the potential applicants for compensation should hold their hands in the course of negotiations. Indeed, it was submitted to us that this was a stronger case so that in that way the submission went, the Chairman erred in the conclusions he reached.

It is unnecessary, in our judgment, to do more than refer, very briefly, to the facts which the Industrial Tribunal found. In outline, it is apparent that the Applicant's employment as a Computer Systems Administrator had been terminated on 23 May 1996, thus it is clear that, as the Industrial Tribunal held, on application of the statutory provisions relating to time limits, as set out in Section 111 of the Act, the final day for presentation of the complaint within the three months was 22 August 1996.

So the crucial issue for the Tribunal was whether it had not been reasonably practicable for the Applicant to present his complaint within that period. There have been a great number of authorities on what is the meaning of "reasonably practicable" and it has not been an easy phrase for the courts to construe, but the better view is, undoubtedly, as laid down by the Court of Appeal in the very well known case of Palmer, that "reasonably practicable" means reasonably "feasible" to present it within that period and it is clear that the Industrial Tribunal were setting themselves the correct test, although they did not refer to Palmer in terms.

The Industrial Tribunal then went on to find the necessary facts. The Chairman refers to those in paragraph 4. He found as a fact in these terms:

"4(c) Thereafter at some time in July 1996 the Applicant entered into negotiations with the Respondent in the hope that an agreement for further employment could be reached."

We interpose to say that we do not know the details of those negotiations. The Industrial Tribunal carried on:

"These negotiations had not resulted in a finalized agreement by the time the primary three month period expired on 22 August 1996 and although he believed that satisfactory terms had been orally agreed by about 15th August [1996] he awaited a written form of agreement from the Respondent's solicitors."

There was then a further finding of fact that, during the negotiation period, the Applicant was much concerned with the possibility of presenting a claim for unfair dismissal, and went to see a Solicitor in Beckenham about that. Now that is a finding of fact by the Industrial Tribunal.

Then there are references to other detailed facts relating to the history of the matter and the contact the Applicant made with the enquiry hotline on 22 August, and his contact with the Citizens Advice Bureaux and the Chairman finds, as a fact, in sub-paragraph (g) that the Applicant decided not to present the application at that time, that is to say, by posting it on the 22nd, that is what the Industrial Tribunal found.

The Industrial Tribunal said that he did this because he did not wish to run the risk of irritating the Respondent or jeopardising the agreement which he believed he had made. Then in fact what happened was, as is clear from the Industrial Tribunal's findings, that the proposed written agreement when it was received on 4 September, was unsatisfactory and he then sent in the application.

In our judgment those were the facts that were found, and we then turn to look to see what the Industrial Tribunal's conclusions were and they are expressed in paragraph 7 of the decision. The Industrial Tribunal found that the Applicant knew about the primary time limit and that he wished to explore the consequences of disregarding it so as not to prejudice his relationship with the Respondent. The Industrial Tribunal concluded that the Applicant took the risk of what he consciously decided to do, ie not to present his application in time. The Industrial Tribunal went on in this way:

"The fact that he was still effectively in negotiation with the Respondent could not operate to suspend the need to present the application in time."

In our judgment, it must be said now, on authority, that Owen v Crown House Engineering Ltd is a special case. It is the exception rather than the rule in our judgment. Indeed, that was exactly what Sir Hugh Griffiths, as he then was, said at page 517 of the report. He said:

"This is not to say that in all cases where parties are negotiating an employee is relieved of observing the time limit. This is a special case founded upon the action of the employers which caused the employees to hold their hand."

In our judgment that was the way in which the Industrial Tribunal here approached the matter in accordance with that proposition and, in our judgment, the Chairman was entitled to distinguish the situation on the facts before him, from the situation which obtained in Owen for the reasons that he gave in paragraph 7(ii) of the decision.

The position was that, although it was hoped that the oral agreement would bear fruit, the reality, on the finding of the Industrial Tribunal, was that the parties were still effectively in negotiation, as the Industrial Tribunal found, and in those circumstances it is vital to understand the distinction between what is a reasonable course to take, on the one hand, and what is a reasonably feasible course to take on the other hand. There is, unfortunately, a very great deal of difference between those two situations and, whilst we have some sympathy with the position of the Applicant in this particular case, in our judgment the Industrial Tribunal were entitled to reach the decision they did. The Chairman was entitled to reach the decision he did, in the manner which he did, for the reasons he gave, which were in our judgment in line with principle and authority and accordingly, this application must be dismissed.