United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K JANES Cheshire County Council Welfare Rights Service Hamilton House Hamilton Place Chester CH1 2BH


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law which Mr Jones wishes to raise in a Notice of Appeal against a decision of an Industrial Tribunal Chairman, sitting alone. The Chairman's decision is contained in writing in a decision which was sent to the parties on 22 January 1998 following a hearing on 23 December 1997.

Mr Jones made a complaint against his former employers, The Post Office, alleging that he had been unfairly dismissed. The preliminary issue determined by the Chairman, sitting alone, related to the time at which the notice of application had been presented to the Industrial Tribunal.

Looking at the Tribunal decision they found that the dismissal effectively occurred on 2 August 1997, which, as they then observed, meant that he should have completed and presented his application to the Industrial Tribunal by 1 November. In fact, they received it on 4 November, so that it was a few days out of time.

The reason why it was not presented before is dealt with in the Industrial Tribunal decision starting at paragraph 3 through to paragraph 8. Essentially it appears that the Applicant was initially suspended before he was dismissed. He took advice from his trade union at that time and subsequently, after his dismissal, he sought their further advice. He was advised, according to the Tribunal decision, to immediately submit his application for unfair dismissal and he was told that he had three months in which to do it.

The Applicant had a right of appeal which was still extant and there was a question mark as to whether he might have been misled in some way about his status, pending the determination of that appeal but the Tribunal was satisfied, having regard to the terms of the letter of dismissal, that he was effectively dismissed on 2 August 1997. There was also some suggestion that Mr Jones may have thought that he had submitted an application to the Industrial Tribunal, but checks were made both of the region concerned and at other regions, and there has been no trace of such an application.

He went to see his solicitor after the internal appeal had been rejected on 20 October. Mr Jones was told to put in his IT1 and found out by 23 October that nobody else had received it; he then sought help from a friend, Miss Goodyear, who was a school teacher. She filled in the form, probably on 31 October, took it to school with her the following Monday and did not send it off and regrettably it arrived out of time.

The issue which Mr Janes, on behalf of the Appellant, would like to go forward for a full hearing, is the question as to what is the effective date of termination of Mr Jones's contract of employment. He says that the letter of dismissal contains the termination of the contract of employment but it cannot become effective until after it has been received by the Appellant. Termination requires communication to the individual concerned and it cannot be effective until communicated. The Industrial Tribunal have not considered that in their decision and he says it is reasonably arguable that in fact the application was presented to the Industrial Tribunal within time because of the delay between the date when the letter may have arrived and the date when it was in fact seen by Mr Jones. We regard that point as arguable without giving any indication as to the likely outcome of the appeal on that issue.

Secondly, Mr Janes would also wish to argue that effectively since the friend concerned was not a qualified advisor, the harsh rule which appears to have been adopted by the Tribunals, namely, where there has been a competent advisor instructed not to allow time to be extended, should not be applied. As it seems to us, there is no doubt that it was reasonably practicable for this Applicant to have presented his complaint within time, assuming time ran from 2 August 1997. We see nothing wrong with the Industrial Tribunal's decision on the case, assuming that they have got the effective date of termination correct.

Accordingly we would not allow the matter to proceed to a full hearing on that aspect of the appeal. Mr Janes quite rightly recognises that the first point was his main point and on that we are confident that the matter should go ahead for a full hearing.