United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N GILL (Representative) Messrs Ronald Fletcher Baker & Co Solicitors 80a Stoke Newington Road London N16 7XF
For the Respondents


 


JUDGE PETER CLARK: This is an appeal by Mr Loyaha against a decision of the London South Industrial Tribunal sitting on 23 January 1998 dismissing his complaints of both unfair dismissal and unlawful racial discrimination on the grounds that they were time barred. That decision, with Extended Reasons, was promulgated on 9 February 1998.

The Appellant was employed by the first Respondent as a security officer from 23 November 1994 until his summary dismissal effective on 23 April 1997. He appealed internally. That appeal was heard and dismissed on 15 May 1997. There is no suggestion in the Tribunal's Reasons that his dismissal was suspended pending the outcome of the internal appeal.

The Industrial Tribunal record in their Reasons that it was the Appellant's evidence that he was advised by a solicitor that the time limit of three months for presenting an Originating Application to the Industrial Tribunal ran from the date of the internal appeal. If that advice was given, it was wrong. The time ran from 23 April and expired on 22 July 1997.

The Tribunal further record in their findings of fact that on 21 July 1997 the Appellant completed the Originating Application in the presence of his solicitor and then sent it by registered post, on that day, to the Tribunal office. The form IT1 was not faxed to the Industrial Tribunal, thus ensuring that it was presented within time. The Tribunal record that no evidence of posting by recorded delivery was produced by the Appellant. At all events, it arrived on 23 July, one day out of time.

Mr Gill, who appears on behalf of the Appellant today, seeks to challenge the findings of fact by the Tribunal. First, that the Originating Application was completed in the presence of a solicitor. Secondly, that it was sent by registered post. His instructions from the Appellant are that he, the Appellant, told the Industrial Tribunal nothing about a solicitor being present but said that he sent it first class, posting it at a named post office at 11am, expecting it to arrive the following day.

As an Appeal Tribunal we cannot go behind clear findings of fact by the Industrial Tribunal and we proceed on the basis of the facts as found by the Tribunal.

The case was first listed for hearing on 30 September 1997. On that occasion the Appellant did not attend. The claim was dismissed. He then applied for a review. The review was granted at the second hearing on 23 January 1998 and the Tribunal proceeded to consider the limitation point.

It found that, for the purposes of the unfair dismissal complaint, it was reasonably practicable for the Appellant to present the complaint within time. As to the racial discrimination claim, the Tribunal decided that it would not be just and equitable to extend time under Section 68(6) of the Race Relations Act 1976. Accordingly both complaints were dismissed.

The question as to whether it is reasonably practicable to present a complaint of unfair dismissal within time is essentially a question of fact for the Tribunal, Palmer v Southend-on-Sea Borough Council [1984] ICR 372. Further, the Tribunal has a wide discretion as to whether or not to extend time for bringing a complaint of racial discrimination under the just and equitable provision. The Employment Appeal Tribunal will rarely interfere with the exercise of that discretion, Hutchison v Westward TV Ltd [1997] ICR 279. However, the point taken in this appeal is not directed to the Tribunal's general exercise of discretion, but whether the Tribunal considered that the Appellant had a reasonable expectation that the form IT1, posted at 11am by first class post at a main post office, would arrive the following day.

We have earlier indicated that we do not propose to depart from the Tribunal's findings of fact. But let us assume in the Appellant's favour that that was the case which he put before the Industrial Tribunal. The expectation as to delivery of postal packets has changed over the years as appears from the extract from Harvey on Industrial Relations and Employment Law put before us by Mr Gill.

In 1968, when the 1st and 2nd class post system was introduced, the High Court deemed that a package posted 1st class would be delivered the following day (Practice Direction [1968] 1 WLR 1489). By 1977 the EAT refused to take judicial notice of next-day delivery, see Burton v Field Sons & Co Ltd [1977] ICR 106, on which Mr Gill relies. In 1985 the deeming provisions in the High Court changed so that, subject to proof to the contrary, documents posted 1st class were deemed to arrive on the second working day after posting, (PD [1985] 1 WLR 489). In St Basil's Centre v McCrossan [1991] IRLR 455, Wood J, sitting in the EAT, suggested that in determining what is a reasonable expectation of delivery, Industrial Tribunals may derive guidance for the 1985 High Court Practice Direction.

In the present case it is therefore far from clear that any evidence was led on behalf of the Appellant, who appeared in person below, as to his reasonable expectation of delivery. But if it was, we consider that the Tribunal was entitled to conclude implicitly that there was no reasonable expectation of delivery on 22 July and that in any event the problem could be simply overcome by faxing the form IT1 from the Appellant's solicitor's office.

In these circumstances it seems to us that this appeal discloses no arguable point of law and accordingly it must be dismissed at this preliminary hearing stage.