United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: This case raises a limitation point. The Appellant, Mrs Savage, has been unable to attend this preliminary hearing today due to the recent birth of her child. We have therefore proceeded to consider the matter on the basis of the papers and the Appellant's written representations and Notice of Appeal.

She was employed by the Respondent from 20 September 1993 until her dismissal on 20 November 1995. Following that dismissal she presented a complaint of unfair dismissal only to the Industrial Tribunal within time. That matter came before an Industrial Tribunal on 22 October 1996. During the course of that hearing it appears that she raised for the first time an alleged unlawful deduction from her wages. It was her contention that she was entitled to a bonus payment for the year ending 1 December 1995. It is and was the Respondent's case that her employment terminated on 20 November 1995, and accordingly she was not entitled to the bonus. We are not here concerned with the merits of that dispute.

It is not clear whether the Appellant, who appeared in person, applied to amend her first Originating Application to add the unlawful deduction claim. At all events, no amendment took place; the Chairman on that occasion told her that she should submit a new Originating Application raising the new claim.

Eventually she did present a further Originating Application, raising that claim on 10 February 1997.

On 11 August 1997 that matter came before a Chairman, Miss A.M. Lewzey, sitting alone at Stratford Industrial Tribunal on a preliminary question as to whether the claim was time-barred. In Extended Reasons dated 4 September 1997 the Chairman identified the first question as being on what date time began to run. The Chairman appears to have raised a number of possibilities without firmly deciding which was the relevant date. We think that was because, on the date most favourable to the Appellant, namely the date of the first Industrial Tribunal hearing, that is, 22 October 1996, the ordinary three-month time limit had expired before the complaint was presented on 10 February 1997. We emphasise that this is the date most favourable to the Appellant; we think that had it been necessary to decide the point the relevant date would have been much earlier.

However, proceeding on that basis, the Chairman then considered whether it was not reasonably practicable for the Appellant to present the complaint within three months starting on 22 October 1996 and found that it was reasonably practicable so to do. Accordingly she dismissed the complaint.

The basis for the Chairman's decision was the ratio of the Employment Appeal Tribunal decision in Capital Foods Retails Ltd v Corrigan [1993] IRLR 430, to which reference is made in paragraph 13 of the Reasons, and which, we would add, is a case that has been followed and applied by the EAT in Camden & Islington Community Services NHS Trust v Kennedy [1996] IRLR 381.

The effect of those cases is that where an applicant has submitted an Originating Application by post within the three month period and no acknowledgement has been received from the Industrial Tribunal within a reasonable time, for an applicant or her adviser to have acted reasonably, it is necessary to make some enquiry as to whether the application has in fact been received.

On the facts of this case, based on the Appellant's account, she believed that she had three months from 22 October 1996 to submit her form IT1. She sent it to the Tribunal at the end of November 1996. She telephoned the Tribunal in mid-January 1997 to see why she had received no response. She was then told that no application had been received and that she should send another form IT1. At that stage she was, on her account, still within time. Yet she delayed until after the deadline had expired. Indeed, she had dated the form IT1 finally submitted 1 February 1997, but did not present it to the Industrial Tribunal until 10 February 1997.

In these circumstances we find it wholly unsurprising that having made a number of assumptions favourable to the Appellant, the Chairman was unable to conclude that on these facts it was not reasonably practicable for the Appellant to present her complaint within time.

So far as this appeal is concerned we are quite unable to say that such a finding discloses any arguable error of law. In these circumstances we shall dismiss the appeal.

Having dismissed the appeal we should add this. The effect of our judgment is simply to uphold the Chairman's decision that the Appellant's claim under section 13 of the Employment Rights Act 1996 is time-barred. There has been no determination of the claim on its merits. The Appellant is not prevented from pursuing a claim for breach of contract in relation to her alleged entitlement to the 1995 bonus payment in the County Court where the limitation period is six years. The Court of Appeal has recently ruled that the fact that a claim for breach of contract could have been brought before the Industrial Tribunal, but was not, does not give rise to an issue estoppel between the parties.