United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J TAYLER (Counsel)


 


HIS HONOUR JUDGE WILKIE QC

1. This is an appeal by the Amalgamated Engineering & Electrical Union against: (i) a decision by the Employment Tribunal sitting in Manchester that the effective date of termination, on the assumption that the Applicant was an employee of the Appellant, was 12^th February 1998, that being a unanimous decision; (ii) the majority decision that it was not reasonably practicable for the Applicant to have presented his compliant alleging unfair dismissal before the end of a period of three months beginning with the effective date of termination; and (iii) the further decision of the majority that it was reasonable to extend the time for presentation of the complaint until 18^th May 1998, the date when the complaint was in fact made.
2. In essence the appeal is on the footing the majority decision was wrong in law or, alternatively, perverse in the light of the unanimous findings of fact that, on any view, the relationship of employment had terminated by 12^th February 1998. The majority took the view that the Applicant was placed in a difficult position by the inept way in which the Respondents dealt with the matter. Had he been dealt with in a straight forward way the majority concluded it may well have been that there would have been no need for an application at all. The way it was dealt with was such that the confusion in his mind prevented him from putting in his application. The majority was of the view that this placed an impediment in the way of the Applicant arriving at a decision whereby he could present a complaint to the Tribunal. In the light of that and in the light of the fact that he put in an application within a week or 6 days after the deadline, the majority was satisfied that that was a reasonable period by which to extend the time for presentation of a complaint.
3. The minority view was that, as the Applicant was clearly aware by 12^th February 1998 that his position with the Respondent was at an end, he, being an experienced Trade Union officer aware of the existence of the Tribunals, could have put in a complaint in time but did not. The minority view was that there was no impediment which prevented the complaint being put in and, in those circumstances, the minority found that it was reasonably practicable for him to have presented the complaint in time. The appeal is on the basis that the majority applied the wrong legal test in that if failed to distinguish between a factor which prevents it being reasonably practicable as exemplified by the case of Palmer –v- Southend –on-Sea Borough Council 1984 ICR 372 and a factor which may make it undesirable or inconvenient to bring a complaint as identified in the case of Singh –v- The Post Office 1973 ICR 437. In addition it is said that the decision of the majority is simply perverse. By that we assume is meant it was such that the immediate response of an objective outsider looking at it would say "well my goodness they have got that wrong". In our judgment this is an appeal that must succeed in the light of the finding of fact that by 12^th February, as Mr Simpson well knew, his employment relationship had come to an end. The 3 month period which then began was one in which there was no impediment preventing it being practicable reasonably for him to put in his complaint.
4. We have before us the notes of evidence of the Chairman of the evidence given by Mr Simpson. In particular in cross examination he says this

"I was aware about unfair dismissal being a right for employees. I had no prior experience of unfair dismissal claims. I was aware of the three month time limit at the same time. I could have put in the IT1 after 10 February, there was nothing stopping me. I waited until the March meeting to see what Dougherty had to say. Why wait after 11 March until May? No answer."

In the light of that evidence from the Applicant himself, we are frankly at a loss to see how the majority could have come to the view that it was not reasonably practicable for him to have put in his application within the period of 3 months from 12^th February. Any impediment that there might have been had ceased by 11^th March. He therefore had in excess of 2 months from that date without any impediment to putting his application. Therefore we are forced to the conclusion either that the majority have erred in law in that they have not answered the correct question or, alternatively, if they have posed themselves the correct question, their answer to it is such that we have taken the view that it must be wrong. Accordingly we uphold this appeal and overturn the decision of the majority. Therefore the application, not having been made in time, it having been reasonably practicable for the application to have been made in time, we rule that his application be dismissed.

5. In this matter we have been assisted by Mr Taylor of Counsel who has submitted a helpful skeleton argument. This is a case, though listed for a full hearing requiring the attendance of both parties, where we have not had the advantage of the presence of, or any oral or written argument by Mr Simpson, he having indicated to the Tribunal as early as 21^st October that he did not intend to be present at the hearing. We have therefore decided this case without the advantage either of him being here or receiving any written submissions from him.