United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R N SCOTT (Representative) 40 Colne Tinkers Bridge Milton Keynes MK6 3DJ


 


MR JUSTICE BELL: This is an ex-parte preliminary hearing in respect of an appeal by Robert Nelson Scott of Milton Keynes, who being dyslexic and not always in good health, has been supportively assisted by his father, Richard Nelson Scott, of Austin, Texas. Previously Mr Richard Nelson Scott has assisted with written material, but he has gone to the extent of coming all the way from Texas to London to argue the appeal at this preliminary hearing before us today and before we go any further we would like to record our gratitude to Mr Scott senior and our admiration for the support which he has given his son.

The bare history is that the Appellant, Robert, worked for the Respondent, D.H.L International (UK) Ltd, for many years until he was dismissed from his employment on 9 December 1996. On 27 March 1997 he presented an Originating Application alleging unfair dismissal. Section 111(2) of the Employment Rights Act 1996 provides that, subject to an exception which does not apply to this case, an industrial tribunal shall not consider a complaint by any person that he was unfairly dismissed by his employer unless it is presented to the Tribunal:

"(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

Mr Scott's complaint was presented just over three and a half months after the effective date of termination of his contract of employment, so the Industrial Tribunal had to decide whether it nevertheless had jurisdiction to hear his complaint by the application of paragraph (b) of the subsection.

A preliminary hearing was held on 4 August 1997 to enquire into the matter. Mr Scott was represented by Counsel and the employer by its Solicitors. The Industrial Tribunal's decision, entered in the register on 31 October 1997, was unanimously that the Tribunal did not have jurisdiction. A review of the decision was refused and so Mr Scott has appealed against the decision.

The extended reasons for the decision set out a full yet succinct account of relevant matters and events, including Mr Scott's ill-health, his concern to gather information after and in relation to his dismissal, the part played by his father overseas, the Respondent's failure to respond to some requests and his and his father's ignorance of the law and procedure, including time limits. The Industrial Tribunal recited the relevant parts of Section 111(2) and among its conclusions said:

"The Tribunal finds that from early February 1997 the Applicant and his father had jointly gathered together what they perceived as the relevant information, and that on the evidence of the correspondence we have seen, this was in the context of an understanding that some claim could be brought by the Applicant against the Respondent in respect of his dismissal.

As indicated above the Tribunal accepts that the Applicant did not have knowledge of the detail of the law regarding complaints of unfair dismissal, nor of the time limit imposed by legislation. We find though on the evidence that there was a general understanding that his remedy lay with an Industrial Tribunal, and that he knew that at least from early February."

And then a little later:

"So far as the seeking of advice or contacting a Tribunal was concerned, within the period to 8 March they took no action at all.

The Tribunal has had to consider whether it was practicable for them to have done so. Although the Tribunal recognises a harshness in the decision, a harshness which at least on the prima facie facts of the Applicant's evidence on the substance of this case appears exacerbated, it is the Tribunal's view that even after early February it was reasonably practicable for the Applicant to have lodged his complaint by not later than 8 March. This decision is made even taking into account the particular difficulties of the Applicant described above.

It is our conclusion that from 9 December 1996 to 8 March 1996 it was reasonably practicable, and that even if one looked only at the period after the information had been gathered we take the view that he did have sufficient time. In our view he did know that he had a potential claim.

With this conclusion the Tribunal decides that section 111(2)(b) of the Act is not applicable in this case. We do not therefore need to analyse in this decision any actions taken after the expiry of the said three months' period.

It follows therefore that it is the decision of the Tribunal that, having failed to meet the requirements of section 111(2)(a) of the Act, the Applicant's complaint must fail for want of jurisdiction."

The Appellant/Applicant has raised a number of matters in the Notice of Appeal and additional written material. We have read all that. We have heard what Mr Richard Nelson Scott has had to say this morning and listened as he read out very clear further submissions. One particular point made in the Appellant's skeleton argument at paragraph 4 reads as follows:

"It is submitted that the Tribunal misdirected itself in law by looking narrowly at the question of whether it was 'reasonably practicable' for the Applicant to have lodged the Complaint in time. It is submitted that the Tribunal should have given weight (or greater weight) to the extent to which the Respondent Employer contributed to the Applicant's delay and, if the extent of delay caused by the Respondent Employer exceeded the extent by which the Application was late, should have allowed the Application on the grounds that fairness and justice required that the Respondent Employer should not be allowed to claim benefit, or to receive benefit, from an Applicant's delay which was induced by their own unreasonable delay."

This morning Mr Scott senior has enlarged on that by contending that the Industrial Tribunal's decision was wrong in law in three respects, firstly, in exercising its discretion, as he put it, the Industrial Tribunal did not give proper consideration to the question of the merits of the actual claim. Secondly, he contends that the Industrial Tribunal did not take proper account of the employer's delay and, thirdly, he says that the Industrial Tribunal took no account of the prejudice to his son on the one hand and the lack of prejudice in a delay of something just under three weeks to the employer on the other.

Those points seem to us to go back to the question of whether the Industrial Tribunal had a general discretion to do what was fair and just, and, if it did, whether it should have exercised it in favour of the Appellant in this case.

Mr Scott has referred us to the well known case of Kwik Save Stores Ltd v Swain and quoted well known passages to the effect that a litigant should not, in the ordinary way, be denied an adjudication of his claim, or for that matter his defence to a claim on its merits, because of procedural default and that in deciding whether time should be extended to allow procedural step to be taken, account should be taken not just of whether there is any excuse for a delay, but also of a number of other relevant factors such as the actual merits, whether any prejudice from delay can be compensated by orders for costs and so on.

However, the Kwik-Save case involved a procedural rule or rules in the Industrial Tribunal's procedural rules where a discretion was specifically allowed for.

In this case it is quite clear from the wording of section 112(2), which is the primary legislation passed by Parliament, that there is no such general discretion just to do what the Tribunal deems to be just in the circumstances. Of course, if the behaviour of a Respondent such as the employer in this case or any other factor, results in it not being reasonably practicable for an applicant to have lodged a complaint of unfair dismissal within the three month period, the Industrial Tribunal must go on to consider whether the complaint has been presented within such further period as is reasonable, but in our judgment the Industrial Tribunal in this case considered all relevant factors and reached a decision which it was entitled to reach, that it was reasonably practicable for the complaint to be presented before the end of the period of three months from the termination of employment.

It is quite clear from section 111(2) that once a Tribunal comes to the conclusion that it was reasonably practicable to present the Originating Application in time, there is no question of any general discretion to extend time on grounds of fairness or justice. There is no jurisdiction once that conclusion is reached.

We have unanimously come to the conclusion that the Industrial Tribunal applied the correct test to the material before it. We cannot say that it reached a conclusion which no reasonable Tribunal, properly directed, could have reached. It follows that, in our view, there is no arguable point of law arising on this appeal, which we are therefore afraid, Mr Scott, means that it must be dismissed at this stage.