At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS E HART
MR T C THOMAS CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellants | MR J BENNETT (Representative) Employee Relations Advisor 3 Meadow Close Marlow Bucks SL7 1QJ |
JUDGE PETER CLARK: The Applicant before the London (North) Industrial Tribunal, Mr Lazarevic, commenced employment with the Respondent Hotel as a luggage porter on 15 April 1985. His employment came to an end on 21 July 1997 when he was summarily dismissed on the grounds of his conduct. It is alleged that he was drinking alcohol on duty contrary to the Respondent's rules. That allegation was denied by the Applicant.
He took advice from "Law for All" of the Law Shop, Acton, West London. His representative presented his Originating Application to the London (North) Regional Office complaining of unfair dismissal on 21 October 1997, one day out of time. The Respondent resisted the complaint and took the limitation point.
That point was taken as a preliminary issue before a Chairman, Mr G. Flint, sitting alone on 16 January 1998. The Chairman found the following facts, recorded in his extended reasons dated 23 January 1998.
On 20 October 1997, the last day for presenting the complaint within time, the Applicant's representative, Ms Barlow, attempted to fax his form IT1 to the London (North) office on a number of occasions up until 9 pm, but the fax machine at the Regional Office was out of order. It gave off an engaged tone. On the following day the form IT1 was lodged with that Regional Office by fax.
The Chairman considered whether it was reasonably practicable within section 111 (2) (b) of the Employment Rights Act 1996 to lodge the complaint within time. He found that it was not. The Applicant's representative could not reasonably be expected to deliver the document, either personally or by courier, between 9 pm and midnight on 20 October. He further found that the complaint was presented within a reasonable time after expiry of the primary limitation period, that is, on the following day. He therefore allowed the matter to proceed to a hearing on its merits.
In this appeal by the employer against the Chairman's decision, Mr Bennett contends that the Chairman erred in law in finding that it was not reasonably practicable for the Applicant to present his complaint within time where there were alternative means by which the form IT1 could be served; in particular by faxing the Central Office of Industrial Tribunals or another Regional Office of Industrial Tribunals, as is permitted by Rule 20 (2A) of the Industrial Tribunal Rules of Procedure. He submits, as he did below, that once 5.30 pm came on 20 October, and the Applicant's representative had failed to get through on the Woburn Place fax number, alternative methods of communication ought to have been used. Clearly those arguments were considered and rejected by the Chairman below. In support of his submission he has referred us to the EAT decision in Ford v Stakis Hotels & Inns Ltd [1987] ICR 943. We have not found that case of particular assistance in the instant case. The facts in Ford were that the employee resigned from his employment on 28 February 1985 and on 28 May his Solicitor delivered his Originating Application, claiming that he had been unfairly dismissed at the Regional Office of the Industrial Tribunals one day after the expiry of the three month period for presenting a complaint.
An Industrial Tribunal considering the issue of jurisdiction under what was then section 67 (2) of the Employment Protection Consolidation Act 1978 found that, although the Regional Office had no letter-box and had been closed the previous day, a bank holiday, nevertheless the three month period had expired on the date of presentation and they held that they had no jurisdiction to hear the claim. The employee's appeal succeeded on the basis that since there was no letter-box or other means of communication, expressly or impliedly authorised by the Tribunal by which the complaint could have been presented on the bank holiday, that day was dies non and the time for presenting a complaint, standed until the next day. Since the complaint had been presented on that next day the Industrial Tribunal ought to have held that they had jurisdiction to consider the complaint.
Mr Bennett has referred us to passages in the judgment of French J, given on behalf of the Tribunal in that case, but we cannot see that the ratio of that case, nor indeed observations made about presentation of complaints in the circumstances which arose in that case, are of assistance in the instant case.
We remind ourselves that the question as to whether or not it was reasonably practicable to present a complaint within time, is essentially a question of fact for the Industrial Tribunal: see Palmer v Southend-on-Sea Borough Council [1984] ICR 372. In the present case we think that some assistance is to be derived from the postal delay cases, and the reasonable expectation of the Applicant whose complaint arrives out of time by post: see for example Birmingham Midshires Building Society v Horton [1991] ICR 648 and St Basil's Centre v McCrossan [1991] IRLR 455. In those two cases the Appeal Tribunal was not prepared to hold that the Industrial Tribunal below had reached a perverse conclusion in accepting the evidence of the Applicant's Solicitor in Horton and the Applicant himself in McCrossan, that they had a reasonable expectation that the delivery of the form IT1 posted first class would arrive the following day.
Here, in our judgment the Chairman was entitled to conclude that the Applicant's representative could reasonably expect that she would be able to serve the form IT1 by fax on the last day of the three month period to the local Regional Office, and further that having failed to get through to that office by 9 pm it was not unreasonable to wait until the following day to serve the form IT1.
It is a matter of judgment for the Industrial Tribunal Chairman hearing the preliminary issue as to whether or not other steps ought to have been taken and that failure to take those steps rendered it reasonably practicable to present the claim within time.
We are unable to characterise the Chairman's decision in this case as perverse, or to discern any error of law in his approach. Accordingly, this appeal is dismissed.