United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FRED EDWARD JR. (of Counsel) Messrs D J Harry & Co. Solicitors 32-36 Rye Lane London SE15 5BS


 


JUDGE HICKS QC: Miss Cumberbatch, the appellant, was employed by the respondents, Blue River Project, and the matter with which we are concerned does not involve any investigation of the background facts because it is concerned purely with the jurisdiction of the Industrial Tribunal to entertain her complaints by reason of the requirement that such complaints be presented within a period of three months from the relevant date.

The tribunal, in the form of a Chairman sitting alone, had before it four categories of complaint. They were the subject of a single application but had to be treated separately. One was for unfair dismissal and wrongful dismissal, one was for deductions from earnings under the Wages Act, one was for race discrimination and one for disability discrimination and victimisation. The number of separate complaints was in fact more than four but they fall into those four categories, as the tribunal rightly understood, in relation to the time limit provisions. Those four statutory provisions about time limits, however, themselves fall into two groups, and for practical purposes only those two groups need be considered.

The unfair dismissal and the unlawful deduction claims depended on a test turning on whether it was reasonably practicable for the applicant to present her complaint within the time limit. The race discrimination and disability discrimination claims rested on whether, if not presented within the time limit, it was just and equitable for the tribunal to extend the time.

The facts were that the applications were presented on the day after the last day required by the statutory provisions. The Chairman found no difficulty in exercising what was plainly his discretion in relation to the race discrimination and disability discrimination complaints to extend the time so as to admit those two complaints, holding that it was just and equitable to do so. The words "just and equitable", as is not in dispute, do confer a general discretion. He exercised it in Miss Cumberbatch's favour. Naturally she does not complain about that, and there is no cross-appeal by the respondents.

In relation to the unfair dismissal and unlawful deduction claims, however, the Chairman conducted a careful examination of the facts and the reasons for Miss Cumberbatch's lateness, which amounted simply to the fact that she misunderstood the way in which the time was calculated and left it to what she thought was the last day, but in fact landed on the day after the last day. Having carefully considered those facts and reasons he came to the conclusion that it had been reasonably practicable for her to present her complaint within the time limit and that therefore there was no jurisdiction to extend it.

The way in which he expressed that conclusion is to be found in paragraph 23 of his reasons, in which he said:

"23. I then turn to consider whether it was reasonably practicable for the Applicant to present her Originating Application on or before the 28 October, and it is clear to me that it was. She had a choice and a freedom, when to present her application, and she chose to present it at the very end of the period. [I interpose that that must mean, in the context, what she thought was the very end of the period.] It is not suggested on her behalf that she was misled by anyone about the time period. The most that can be said is that she made an assumption which turned out to be incorrect. Although, as I have said, it was a reasonable mistake on her part, it was a mistake which she could easily have avoided by seeking advice or researching the position, given that she is said to have prepared her own Originating Application by her own efforts, and at the same time, had solicitors who were acting for her and advising her, and who could have assisted her with an informed view of the expiry of the time period."

Against that conclusion, Mr Edward before us advanced three grounds of appeal, which we propose to take in reverse order.

Ground 3, as appearing in the Notice of Appeal, is that in the light of new facts and medical evidence it was not reasonably practicable for Miss Cumberbatch to present her case within the three months' period. As Mr Edward very properly accepted he has not made any application on behalf of Miss Cumberbatch for the admission of new evidence. He accepts, as we understand it, that such an application would be doomed to failure because of the impossibility of satisfying the test required if such an application is to be successful. In any event he does not make such an application, and he now accepts that, that being so, this ground inevitably must fail and we agree.

Ground 2, as argued by Mr Edward, turns really on the absurdity, as he puts it, of the fact that an application presented at any time up to midnight on the last day is in time, whereas one presented even five minutes after midnight on the next day is out of time, although in the real world neither application will be considered before the office opens for business on the next working day, and both are equally likely to be considered at the same moment when that happens. Everybody understand that those are the practicalities, but nevertheless the statute provides a date by which this must be done. Decisions of binding authority have stretched that date to its ultimate limit in favour of applicants, by leaving it open to them to present complaints even by fax up to midnight on that day, although the law might well have developed on the basis that it had to be done within working hours. In that sense there has been a concession in favour of applicants. To use that state of affairs then to mount an argument for saying "well, in that case, we might as well go to the next day after all", is simply to make an absolute nonsense of the statutory provisions. There is a date. It must be kept. There is an exception where it is not reasonably practicable. This ground simply does not begin to get anywhere near an arguable point.

Ground 1 to which as I said we have come last, is the one which Mr Edward has most eloquently and persistently argued. It is that this issue of reasonable practicability is not just a question of fact, as dealt with by the Chairman. Mr Edward submits that even after making an adverse finding of fact, as the Chairman here did, and did as we have held unappealably - even after doing that - the Chairman still has a residual discretion to extend the time in exercise of what Mr Edward submits is an inherent jurisdiction.

The concept of inherent jurisdiction is indeed familiar in English law, and we accept that the superior Courts of this country, the High Court and those superior to the High Court, have such a jurisdiction which sparingly, but nevertheless occasionally, is exercised and does not depend upon any power conferred by statute. As we understand the law, however, and Mr Edward has not been able to point us to any authority to the contrary, there is no such inherent jurisdiction on the part of a court or tribunal which has been created by statute. The powers of such courts and tribunals are to be found in the relevant statute and if they are not in the statute they do not exist. That proposition has been established by quite clear authority in the case of inferior courts such as the County Court, and we have no doubt whatsoever that it applies also to the Industrial Tribunals, and indeed to this Employment Appeal Tribunal. We have only the jurisdiction which statute has given us, the Industrial Tribunals (or now Employment Tribunals) have only the power which the statute gives to them, and the statutory jurisdiction to extend time, in this instance, is quite clearly contrasted as between the cases where there is a general discretion on just and equitable grounds and those where the only ground for extension is that it was not reasonably practicable to comply with the time limit. Whether it is reasonably practicable is, on the face of it, clearly a question of fact. The Chairman rightly, in our view, treated it as such.

Not only are the statutory words dealing with extensions in discrimination cases on just and equitable grounds distinguished from those, limited to factual tests of reasonable practicability, in the case of unfair dismissal and unlawful deduction claims, there are other examples of time limits in this employment field. For example, there is the requirement that in order for the tribunals to have jurisdiction, in general, over claims for unfair dismissal (there are exceptional cases) there must be two years' employment. In the case of the two year employment requirement, there is not even an extension comparable with that for reasonable practicability. The axe falls (or the gate fails to open, perhaps, is a more accurate metaphor) and it either does or does not. Nobody has ever suggested that tribunals have any inherent jurisdiction to entertain cases where, for example, the employment is for nearly two years, but not quite. As Mr Edward very properly accepted, his proposition of an inherent jurisdiction would inevitably give such a power - to be exercised, he says in exceptional circumstances - but the truth is that there plainly is no such power and there equally is no such power in the case of the extension of the three months' limit on the ground of lack or reasonable practicability.

The one authority which, on the face of the Notice of Appeal, we certainly understood Mr Edward to be advancing to the contrary is the case of Marleys (UK) Ltd v Anderson [1994] IRLR 152, where according to the Notice of Appeal, it was stated that the tribunal must in each case look at the particular circumstances of the case before exercising its discretion. However, on enquiry, it appears that that is not a direct quotation from Marley. We have read Marley and it has on the face of it nothing to do with discretion. It concerns a number of points about the jurisdiction to extend on the ground of lack of reasonable practicability, but treatment of reasonable practicability there is entirely consistent with the approach of the Chairman here, that there was an issue of fact before him which he found, and in our judgment inevitably found on the evidence before him, against the applicant.

For those reasons we consider that there is no arguable ground of appeal and we dismiss the appeal at this stage.