United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE LINDSAY: We have before us by way of a preliminary hearing the appeal of Miss C. M. Salinger in the matter Salinger against Heidelberg Graphic Equipment Ltd. The appeal is against a decision promulgated on 14 January 1998 after a hearing on 11 November 1997. A review of this decision was later declined, but we have before us no appeal against that refusal to review. We simply have an appeal against the decision promulgated on 14 January 1998.

The position is that Miss Salinger was dismissed by Heidelberg with an effective date of dismissal as 31 December 1996. Her IT1 claiming unfair dismissal was dated 18 July 1997 and the decision of the Chairman sitting alone at that hearing on 11 November 1997 was:

" ... that the Originating Application was received outside the time limit set by S111(2)(a) and (b) Employment Rights Act 1996 and the Tribunal shall not consider the complaint. The Originating Application is dismissed."

It is necessary first, therefore, to look at section 111 and in particular subsection (2):

"(2) Subject to subsection (3), an industrial tribunal shall not consider a complaint under this section 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."

So that, so far as concerns complaints outside the specified three months, the onus is on the late complainant. The court has to be satisfied, and it is prima facie for the complainant so to satisfy it. It is to be noted that there is not some broad "just and equitable" test here, but whether it was not reasonably practicable for the complainant to have presented the complaint within the period of three months is the question upon which the legislature has fixed. Comparison may be made there with section 76(5) of the Sex Discrimination Act 1975 and section 68(6) of the Race Discrimination Act 1976, both of which have a just and equitable test. It is only here if the Industrial Tribunal is satisfied that the complaint in time was not reasonably practicable that it is empowered to specify some extended period, as to which it has a discretion - "as the Tribunal considers reasonable".

The fixing of whatever further period is selected can be described as a matter that is in the discretion of the Industrial Tribunal, but the question of whether an Industrial Tribunal can have properly been satisfied that a timely presentation was not reasonably practicable is chiefly a matter of law not involving a matter of discretion.

It has to be noted that the test is whether the presentation was not reasonably practicable. A mere desirability, for example, of delay in presentation would not satisfy that test. It is far from easy to say what is inside and what is outside reasonable practicability. It has been interpreted by the Court of Appeal as meaning "reasonably feasible", but a tactical decision to delay, for example, and it is only given as an example, could not be expected to satisfy the test of "not reasonably practicable".

If reasonable practicability as a test is not satisfied, then it does not matter how desirable it might have been that there should have been an Industrial Tribunal decision in the case. At several points in her argument Miss Salinger has emphasised that for the employer Heidelberg to, as she puts it, get away with acting as it did, would not only be unjust to her but would be a bad example to other employers. We do not attach relevance to that argument. We are concerned only with the test of reasonable practicability that the section directs us towards.

Recognising and, indeed, anticipating the difficulty that she might have, given the lateness of her application, Miss Salinger accompanied her IT1 with a carefully prepared sheet of paper headed "Reasons for Late Application". We will not set it out in full, but there are some items there that should have attention drawn to them. She says:

"1. I was unemployed as from 1st January 1997, and while looking for a job, was advised by various agencies and individuals that I would seriously damage my chances of re-employment if I had a case for Unfair Dismissal pending, no matter how justified the complaint might be."

She makes a point about having to get a reference from her employer and that, in effect, to have lodged a complaint at an early stage might have risked her chances of getting another job, because it would be likely to lead the previous employer to withhold a good reference. We do not attach weight to that. It seems to be a bad point because it would seem from the material in front of us that in any event the employer had given her a good reference as early as 15 January 1997. Continuing, at her paragraph 3, she says:

"3. I began in a new position on 17 February 1997. By 31 March, I had only been in this job for six weeks. Because of my experience at Heidelberg UK, I still felt very insecure and was afraid to do anything that might 'rock the boat'.

4. ...I had not regained sufficient confidence by 31 March to be able to submit an application."

There she recognises that her ability to submit an application is an important point and she concluded by saying:

"I was fully aware of the three-month deadline; it was neither negligence nor lethargy that led me to miss the final date for an application to be received, but a fear of jeopardising my future prospects of employment, together with the fact that I still had not recovered sufficiently from the psychological effects of the situation."

So those were presented to the Industrial Tribunal as the reasons for the lateness in her application. Before the Industrial Tribunal Miss Salinger was represented by a Union Official, Mr Quigley, and she gave oral evidence to the Industrial Tribunal. Importantly, she also submitted and referred to a letter from Dr Colin Leonard, her GP. It is a typed letter of one and a third pages that was put in front of the Industrial Tribunal. In some respects it is a remarkable document. It is dated 15 October 1997. The only meeting between that doctor and this patient (to speak of Miss Salinger here as the patient) that is actually referred to, is on 15 November 1996. The letter begins: "I saw the above named on 15th November 1996", but it does appear from the text that there must have been some contact later, although quite what the contact was is not explained in the letter. It says apropos, a meeting between another doctor in the practice, Dr Alice Wong and Miss Salinger on 6 February 1997 (in other words, a date within the three month period) that Dr Alice Wong found Miss Salinger, at the time, to be "still anxious and tired". The letter concluded:

"There is no doubt that Miss Salinger is very distressed at the way an apparently happy job with Heidelberg led to a sense of being victimised, undervalued and rejected.

She says 'I have never been so badly treated as at Heidelberg', 'If I found I made a mistake in my new job, I became panic stricken and felt my job was at risk'. 'For the first three months in this new job I expected people to behave unreasonably towards me. I could not trust anybody and became very panicky'."

And then, the doctor continues, having given those quotations from what Miss Salinger had told him:

"This suggests she has quite a degree of post traumatic stress as a consequence of her treatment at Heidelberg. It is clear that she has not fully recovered from this stress as yet."

Notably, that letter does not say that, given her physical or mental condition in the three months with which we are concerned, that she either could not, or could readily or could not readily be expected to have lodged an IT1 in the period down to 31 March 1997. The only evidence, indirect as it is, directly as to her state during that three months, was that Dr Alice Wong had found her anxious and tired. Although the last paragraph which we have cited suggests that there has been some degree of continuing stress, quite what the consequences of the stress were in relation to an ability or an inability to present an IT1 is not there addressed.

The Chairman in his extended reasons sets out a number of findings of fact in paragraph 4. Again, we bear in mind the whole list of items 4.1 - 4.9 but shall not quote every one of them. But he did find that the Applicant was aware, as at 31 December 1996, of the three month period within which she had to bring the Originating Application under section 111 (2) (a). He found that the Applicant started employment with Allianz Cornhill on 17 February 1997, so she got another job, and she has told us today that it was work much as had been her work at Heidelberg. Continuing, at his 4.5 the Chairman found that:

"As a result of the decision of the Respondent to dismiss her on 7th November the Applicant suffered and continued to suffer stress at least until 15th October 1997."

So, in other words, he accepted the conclusion of the letter from the doctor which we have read. He went on, at paragraph 4.6 to hold that:

"The Applicant made the conscious decision not to submit an Originating Application for unfair dismissal before she started employment with her new employer on 17th February 1996 [it should say 1997, the typescript says 1996].

"4.7 After she started work for her new employer she continued to review the issue of whether to bring an Originating Application complaining of unfair dismissal against the Respondent. She decided not to do so until such time as she felt secure in the new job. By the end of the first week of July 1997 the Applicant began to feel secure in her new job and the Originating Application was submitted to the Tribunal on 21st July 1997.

4.8 While the Applicant did suffer stress as a result of her dismissal by the Respondent, and that stress continued until 15th October 1997, that was not the reason why she did not bring the Originating Application until 21st July 1997."

And hence, the Chairman concluded at 4.9:

"It was reasonably practicable for the Applicant to have presented her complaint at any time after 31st December 1996."

And so, accordingly her application was dismissed, as on that finding it had to be.

At the very root of the way Miss Salinger makes her complaint against that conclusion is the allegation (and here I quote):

"The bottom line was that my psychological state at the time quite simply prevented me from acting."

That is what she says in papers put before us and it seems to encapsulate the central and most important part of her complaint against the decision of the Industrial Tribunal by the Chairmen alone. The question for us is, could an Industrial Tribunal, properly directing itself, not have come to the conclusion to which this Chairman arrived? Anything short of that, given that there is no other arguable error of law which we can detect, would not suffice to upset the ordinary position which is, firstly, that an evaluation of witnesses is for the Industrial Tribunal which sees them and hears them and, secondly, that the EAT is concerned only with errors of law.

As to Miss Salinger's mental and psychological state in the three months down to the end of March 1997, it cannot be taken that on such a subject an indication by the patient herself, the complainant herself, is necessarily reliable and has invariably to be accepted, let alone where the complainant's view, the patient's view, is necessarily given in evidence months afterwards. Quite commonly people are unable properly and accurately to describe their own psychological state. It does not necessarily suffice merely for Miss Salinger to say, "my state was such that I was quite unable to present a complaint. My state was such that I was quite simply prevented from acting", which is how she puts it. So, even if she herself said that that was the case to the Industrial Tribunal, it by no means follows that the Industrial Tribunal had so to conclude. But, apart from her own evidence, there was only the doctor's letter which, strikingly, does not, at any point, say that in practical terms she was throughout the three months, down to 31 March 1997, unable to present an IT1. She was, after all, able to hold down another job from 17 February 1997 and it has to be remembered that the Industrial Tribunal has to be satisfied; the onus is on the Applicant.

Miss Salinger, in the course of a well considered and well presented argument, has drawn our attention to Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 in the Court of Appeal, but it is hard to derive much that assists her from that case. That case uses the expression "reasonable feasibility" in place of "reasonable practicability" as an aid to construction. So be it, but it also emphasises that the matter is quintessentially a matter of fact. It is an empirical test. The proper forum is the Industrial Tribunal, unless there is plain perversity, and the case shows that the question is to be left to the good sense of the Industrial Tribunal. It also poses the question, "has the employee been physically prevented from presenting the complaint"? Even if one adds, "or mentally prevented from presenting the complaint", one still has a high burden that the Applicant has to satisfy.

Whether we would have concluded, as the Chairman did, is of course irrelevant. Whether the Industrial Tribunal could have decided in Miss Salinger's favour is equally irrelevant. She has sought to put in front of us some later medical indications that have, of course, not been tested by cross-examination and which possibly might have been sought to be so tested had they been presented at the Industrial Tribunal. But they are, quite plainly, not material which this Tribunal had in front of it at the time it came to make its decision.

We have some sympathy for Miss Salinger's position. It might be (this is, of course, speculative) that if only the medical case had been better presented at the time, then a decision in her favour might (and we only say might) have emerged. But if we ask ourselves whether, properly directing itself, the Industrial Tribunal here could only have decided in her favour and not as this one did, we have to conclude that that is not the case. We are unable to detect an error of law on the material that the Chairman had presented to him at the time.

Accordingly, notwithstanding some sympathy for Miss Salinger's position, we have to dismiss the appeal even at the preliminary stage.