United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A PARR (of Counsel) Forest of Dean District Council High Street Coleford Glos GL16 8HG
For the Respondents	(1) MR S FLETCHER (of Counsel) Solicitor to the Council Cheltenham & District CAB 14 Royal Crescent Cheltenham GL50 3DA (2) NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: Prior to 1 April 1997, Forest of Dean District Council (the Council) had contracted out its dog warden service to Watchdog Services Ltd, (Watchdog). On 1 April 1994 the Applicant, Mr Roger, commenced employment with Watchdog as a dog warden. On 31 March 1997 the Watchdog contract with the Council came to an end. It was not then possible to re-tender immediately and the Council engaged the Applicant on a two month, full time contract as a dog warden, to expire on 31 May 1997.

Prior to 31 March the council had represented to the Applicant that the provisions of TUPE did not apply so as to effect a relevant transfer of his employment from Watchdog to the council. In due course K9 Transit Environmental Services Company Ltd, (K9), tendered successfully for the dog wardens service contract.

On 20 May 1997 the Applicant was interviewed by K9 for the post of dog warden but was not successful. The post was filled by a woman. On 31 May 1997 the fixed term contract between the council and the Applicant expired and the Applicant was not employed by the council after that date.

On 1 June the contract between the council and K9 for the provision of dog warden services commenced.

On 17 June 1997 the Applicant presented an Originating Application to the Industrial Tribunal claiming redundancy pay and holiday pay against Watchdog only. (The first complaint.)

On 24 July the Applicant attended the Citizens Advice Bureau to obtain advice as to any claim he might have against K9 for sex discrimination in relation to their failure to interview him for the post of dog warden.

On 8 August 1997, having earlier entered a Notice of Appearance, Watchdog applied to the Industrial Tribunal to amend that Notice, to allege that there had been a TUPE transfer of the dog warden service from Watchdog to the Council on 1 April 1997 and that consequently the Applicant had no claim against Watchdog.

On 11 August leave was granted for that amendment by the Industrial Tribunal and on 14 August, for the first time, the Applicant received notice of Watchdog's amended case.

On 11 September the first complaint came before an Industrial Tribunal sitting at Bristol under the Chairmanship of Mr M E Woods and at that hearing the Applicant erroneously informed the Tribunal that his employment with the Council terminated on 30 June 1997. In the circumstances that were put before that Tribunal it was decided to adjourn the proceedings against Watchdog in order to give the Applicant an opportunity to issue a fresh originating application against the Council and K9 on the basis of a dismissal by the Council on 30 June 1997.

Had that been the correct date a fresh application put in before the end of September 1997 would have been within the ordinary three month limitation period. Conversely, if the date of dismissal was the 30 June, it would not be appropriate to amend the first complaint, which had been presented before that date.

On the following day, 12 September, the Applicant presented his second complaint, alleging unfair dismissal, redundancy holiday pay and, by a subsequent amendment, sex discrimination against the Council and K9. The sex discrimination complaint being against K9 only.

By their notice of appearance, dated 8 October 1997, the Council took, among other points, the point that the complaint was out of time. That issue came before a second Industrial Tribunal, sitting at Bristol on 12 November 1997, Chairman, Mr C F Sara, sitting alone.

In relation to the question as to whether the second complaint was out of time, the Chairman recorded that there was now no dispute but that the effective date of termination of the contract of employment between the Council and the Applicant was 31 May and not 30 June 1997, and that accordingly the primary limitation period expired on 30 August 1997.

The Chairman went on to consider the escape clause under Section 111(2) of the Employment Rights Act 1996. That is, that where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months and the complaint is presented within a reasonable time thereafter, the matter may be allowed to proceed.

The Chairman expressed his reasons for allowing the matter to proceed at paragraphs 9 to 11 of the Extended Reasons, promulgated on 25 November 1997, in these terms:

"9. I consider in respect of the period up to 14 August 1997 that it was not reasonably practicable for the applicant to bring the proceedings. The Council had led him to believe that there had been no transfer and as far as K9 were concerned he believed that there was no way one could bring proceedings against somebody who had not employed you. Ignorance of a person's rights is not enough in itself to render it not reasonably practicable to bring proceedings within the three month period, but this was a much more complex situation than knowing whether he had any rights to a redundancy payment or unfair dismissal. He was entitled to rely on the assertion by the Council and not challenged at the time by Watchdog that there had been no relevant transfer.

10. The difficult period, in my view, is from 14 August 1997 to 12 September 1997. By that time he was aware that Watchdog were alleging that there had been a transfer and he should have realised that he needed to bring some proceedings. I have come to the conclusion that his belief that this would be dealt with by an amendment to the proceedings was both genuine and reasonable. There is a considerable difference between a person who does not start proceedings in time and a person who starts proceedings in time but does not understand the detailed procedures for adding additional parties.

11. I have come to the conclusion that it was not reasonably practicable in the sense, set out in Palmer v Southend-on-Sea District Council [1984] IRLR 119, or reasonably feasible, for the applicant to bring the proceedings during the period between 14 August 1997 and 30 August 1997 when time ran out and that by proceeding as soon as he was informed by the Tribunal that there was a need to bring fresh proceedings, he brought those proceedings within a reasonable period thereafter."

Against that finding the Council now appeal. Mr Parr puts the appeal on the basis that the Chairman's conclusion that it was not reasonably practicable to present the second complaint within the primary limitation period was perverse. We are reminded by Mr Fletcher that the Appellant who relies on this ground of appeal faces a high hurdle. We were referred to Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309, in which Lord Donaldson MR gave this guidance, which we take from the head note:

"A decision of an Industrial Tribunal can be characterised as "perverse" only if it was not a permissible option. In order to hold that a decision was not a permissible option, the EAT will almost always have to identify a finding of of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do that, the EAT should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and was therefore perverse."

The first point, which Mr Parr takes in support of the appeal is that the Chairman's finding, at paragraph 10 of the Reasons, that the Applicant's belief that the matter would be dealt with by an amendment to the proceedings was genuine and reasonable, misapplies the statutory test as it has been explained by the Court of Appeal in Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119. He submits that it is not a question of whether the Applicant's belief was reasonable or not and he cites in support of that proposition a passage from Riley v Tesco Stores Ltd and Anr [1980] IRLR 103 at paragraph 10(3) from the judgment of Lord Justice Stephenson.

His Lordship said this:


"Where an employee alleges ignorance of his right or of how or when he should pursue it, or is under some mistaken belief about these matters, an Industrial Tribunal must look at the circumstances of his ignorance or belief and any explanations that he can give for them, including any advice which he took, and then ask itself whether the ignorance or mistake is reasonable on his or his advisors part, or whether it was his or his advisor's fault. If either was at fault or unreasonable it was reasonably practicable to present the complaint in time."

It seems to us on this first submission that the Chairman was perfectly entitled to reach a view as to whether the Applicant's explanation for not issuing the second complaint between 14 and 31 August 1997 was reasonable. For the purpose of determining the overall question identified by May LJ in Palmer, as to whether or not it was reasonably feasible to present the complaint within time. In our view that is a permissible finding and accordingly we reject the first submission.

Secondly he submits that the Applicant, having obtained advice from the Citizens Advice Bureau earlier in the history of the matter, cannot be said to have discharged the burden of showing that it was not reasonably practicable to present the complaint in time in circumstances where he did not seek advice after the amendment of Watchdog's Notice of Appearance to the first complaint. We cannot accept that that failure on his part, if it be a failure, is sufficient to vitiate the Chairman's overall conclusion.

It should be remembered that the purpose of his seeking advice earlier was in order to consider whether or not he had a claim for sex discrimination against K9. The subsequent turn of events resulting from Watchdog's amendment to its Notice of Appearance to the first complaint does not, in our view, necessitate a finding that to have failed to obtain further advice during the relevant two week period is such as to make it inevitable that the Industrial Tribunal would find that it was reasonably practicable to present the complaint within time.

We have to look at the decision of the Chairman as a whole and we remind ourselves of the further observation by May LJ, in Palmer, that the answer to the question in this case is pre-eminently an issue of fact for the Industrial Tribunal and it is seldom that an appeal from its decision will lie. In our judgement this is not one of those exceptional cases where the ground of perversity is made out and, accordingly, we shall dismiss this appeal.