United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MORTON (of Counsel) ELAAS


 


JUDGE PETER CLARK: The appellant, Mrs Dawson, was employed by the respondent and its predecessors from 24th May 1982 until her dismissal effective on 11th August 1997.

The background to her dismissal was that she went off sick on 24th May 1996, never to return to work before her eventual dismissal.

Immediately following that dismissal she contacted a full-time official of the CPSA union, Mrs Janet Owen. Mrs Owen was not called before the Industrial Tribunal, but we have considered, de bene esse, a written statement from her dated 5th April 1998. Apparently the appellant told her that she wished to appeal internally against the dismissal decision. Mrs Owen dictated an appeal letter over the telephone, which was then typed up by the appellant's brother, Mr Walton. The letter was sent to the respondent. It requested an appeal and indicated that the appellant would be represented by Mrs Owen. A copy of that letter was sent to Mrs Owen.

Mrs Owen attended at the hearing of the internal appeal with the appellant on 1st October. The appeal was dismissed.

On 3rd October the appellant made an attempt on her life in a state of depression and was admitted to hospital. She was allowed home in late November 1997 and whilst at home signed a form IT1 which was presented to the Industrial Tribunal on 26th November 1997, that is, some two weeks out of time. She claimed that her dismissal was unfair.

The matter came before a Chairman, Mr J Major, sitting alone at the London (North) Industrial Tribunal on 18th February 1998 to determine the preliminary issue as to whether the claim was time-barred. S. 111(2) of the Employment Rights Act 1996 provides:

"... 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."

This claim having been presented outside the three month time limit it was for the appellant to show that it was not reasonably practicable to present her claim in time. Port v Bandridge Ltd [1978] ICR 943.

We remind ourselves as an appellate tribunal whose jurisdiction is limited to correcting errors of law, that the question of what is or is not reasonably practicable is essentially a question of fact for the Industrial Tribunal. Palmer v Southend-on-Sea Borough Council [1984] ICR 372. In that case May LJ reviewed the earlier authorities and stated that the overall test was whether it was reasonably feasible to present the complaint within time. He listed a number of factors which the tribunal might wish to consider including whether the appellant had been advised at the material time, and whether she had been physically prevented from complying with the limitation period, for example, by illness.

In his decision with extended reasons dated 16th March 1998 the Chairman concluded that the appellant had access to professional advice from Mrs Owen. He bore in mind her hospitalisation from 3rd October 1997. Nevertheless, he concluded that the appellant had not shown that it was not reasonably practicable for the complaint to be presented within time. Accordingly it was dismissed.

In this appeal Mr Morton, who appears on behalf of the appellant under the ELAAS pro bono scheme, submits that the Chairman fell into error by not considering the relevant period of time in three phases. First, the period from the date of dismissal to the conclusion of the appeal against the dismissal, that is 11th August until 1st October 1997; secondly, the period from the conclusion of the internal appeal until when it was reasonably practicable for the appellant to draft and send her form IT1 to the Industrial Tribunal; and, thirdly, any delay between the time when the appellant was fit enough to draft her form IT and present it and when she actually presented it, that is on 26th November 1997. He submits that even if it was reasonably practicable for the complaint to be presented during the period 11th August to 1st October, nevertheless, after that date in the light of the appellant's hospitalisation, it cannot be said that it was then reasonably practicable. He argues that it is only common sense for an applicant or potential applicant to await the outcome of an internal appeal hearing, provided that takes place within the primary three month limitation period before presenting a complaint. In the particular circumstances of this case, it follows, in his submission, that it was not reasonably practicable to present the complaint within time.

We cannot accept that submission. It is quite clear that Parliament has provided that the whole of three month period should be considered when the tribunal decides whether or not it was reasonably practicable to present a complaint within time. The Chairman took into account the circumstances from and after 3rd October 1997, but he also took into account that the appellant had received the benefit of assistance from a professional representative, in the form of Mrs Owen. The evidence did not relate whether or not Mrs Owen advised the appellant at any stage as to her right to bring a complaint of unfair dismissal, and the time limits applicable to that right. However, the Chairman found that either she did receive the appropriate advice, in which case there was no reason why the application should not have been lodged in time, or she did not receive the appropriate advice, in which case her remedy lies elsewhere.

We revert to the guidance provided by May LJ in Palmer. This was essentially a question of fact for the Industrial Tribunal Chairman. We are unable to identify any error of law in his approach, and accordingly, this appeal must be dismissed.