United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I WRIGHT (of Counsel) Messrs Oldham Rust Jobson Solicitors Queensville House 49 Queensville Stafford ST17 4NL


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal Chairman sitting at Birmingham on 22 April 1998. The Chairman decided that the Tribunal had no jurisdiction to hear the Appellant's claim that he was unfairly dismissed by the Respondent.

The Originating Application was received at the Tribunal office more than three months after the termination of the Appellant's employment and the Chairman refused to extend time for presentation under Section 111 (2) (b) of the Employment Rights Act 1996. The Chairman found that it was reasonably practicable for the Originating Application to have been presented to the Tribunal offices within the three month time limit.

The Appellant worked for the Respondent from March 1995 until his dismissal on 21 October 1997. The last day for presentation of the IT1 was 20 January 1998. On 19 January, the Appellant posted his application first class from his home in Stafford to the Birmingham office of the Tribunal. He addressed it to: Phoenix House, 1-3 Newhall Street, Birmingham B3 3NH. Unfortunately, he did not address the envelope to the Regional Tribunal office or mention the word "Tribunal" in any way on the envelope. The building at Phoenix House is in multiple occupation. Because there was no addressee, the envelope was returned to him, undelivered. He then consulted his solicitors, who put in a further application for him, which arrived on 4 February 1998. They applied for a preliminary hearing to deal with the problem of late presentation.

The Chairman considered the facts and noted first, that the Appellant had left the posting of his application to the very last minute. He was taking something of a chance, as one cannot guarantee delivery on the next working day, even by first class post. However, the Chairman said that, if the late presentation had been due only to a postal delay, he would have extended time. The Chairman also noted that the Appellant had not named the Tribunal office as the addressee. This, he regarded as a basic error and he concluded that this was the Appellant's fault, even though, as he acknowledged, the Appellant was "an uncomplicated manual worker" and "not a great letter writer". He recorded that the Appellant had accepted that he had made a basic error. The Chairman directed himself by reference to the case of Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53 and observed that the rules were clear and both parties should abide by them. He was not prepared to extend time.

In this appeal it is said that the Chairman should not have found that the Appellant's failure to address the envelope adequately was the Appellant's fault. It is submitted, as it was submitted to the Chairman, that the fault lay with the Employment Tribunal Service, whose leaflet gives the address of the Industrial Tribunal's Regional Office in Birmingham as Phoenix House, 1-3 Newhall Street, Birmingham, B3 3NH. It is submitted that the full address is 2nd Floor, Phoenix House. Our attention has been drawn to the fact that on the list of Tribunal offices, some offices provide an address which does specify the floor of the office block in which the Tribunal offices are situated. It was submitted also that the leaflet ought to instruct applicants to address their envelope to the Industrial Tribunal office, rather than providing only a list of addresses.

We have been told that, although this point was argued before the Tribunal Chairman, the leaflet itself was not produced. However, we think it highly likely that the Chairman would be familiar with the leaflet. We have not been shown the whole of the leaflet and we do not know what other advice is given within that leaflet. Nor indeed, have we been shown a full copy of the IT1. We believe that the IT1 will contain, on the back, an instruction as to where the form should be sent. We believe that the Chairman would be wholly familiar with both the advisory leaflet and the IT1. He was therefore, in a better position than we are. In any event, it appears to us that first, there is no reason to think that this Chairman has misdirected himself in law. The submission that is made amounts in truth, to a submission that his finding of fact that this was the Appellant's fault, was perverse.

We cannot accept that. This Chairman saw the Appellant, heard him give evidence and found out the basic facts of the matter. The conclusion of fact which he reached, that this error was primarily the Appellant's own fault, was one which, in our view, he was plainly entitled to reach.

It is our view that there is no merit in this appeal and it must be dismissed at this preliminary stage.