United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D ROBINSON (OF COUNSEL) (Instructed by) Messrs Addie & Co Solicitors 9 Masons Yard Duke Street St James's London SW1Y 6BU


 


JUDGE PETER CLARK: Mr Kirwan was employed by the Respondent Trust from 23^rd July 1990 until his summary dismissal effective on 23^rd September 1998.

1. He consulted a firm of Immigration Specialists, not solicitors as such, Messrs Femi Omotoso & Co, who prepared an Originating Application on his behalf alleging race discrimination, wrongful dismissal, unlawful (we think unfair) dismissal, victimisation and loss of wages.
2. It appears from the decision and extended reasons of an Employment Tribunal sitting at London (North) on 15^th March 1999, that the person dealing with his claim sent the Originating Application by recorded delivery post to 93 Ebury Bridge Road, London on 16^th December 1998. That was the former address of the London (South) and Central Office of Employment Tribunals until 1992. The package was returned and a copy of the Originating Application was then faxed to the London (North) regional office on 23^rd December 1998, one day out of time. Meanwhile, a copy had been sent to the Respondent who received it on 21^st December, that is within the ordinary 3 month limitation period.
3. The Employment Tribunal concluded that it was reasonably practicable to present the Originating Application within time. Accordingly, they dismissed the claims of unfair dismissal and unlawful deductions from wages. The claim for wrongful dismissal was withdrawn following payment by the Respondent of notice pay.
4. The claims of race discrimination and victimisation were permitted to proceed by the Tribunal under the just and equitable provision contained in Section 68(6) of the Race Relations Act 1976. Against the decision dismissing the claims of unfair dismissal and unlawful deductions the Appellant now appeals.
5. Before us today, Mr Robinson takes essentially two points. The first is that the Immigration Specialists who assisted the Applicant in the preparation and lodging of his Originating Application were not skilled advisers for whose acts the Appellant must bear responsibility. We have been referred to the Court of Appeal decision in Walls Meat -v- Khan [1979] ICR 52 and we also bear in mind, the Court of Appeal's observations on who are skilled advisers in the case of Riley -v- Tesco [1980] ICR 323. Bearing those cases in mind we are quite satisfied that the firm assisting the Applicant must be regarded as skilled advisers and in particular, Mr Jokosenumis, whom we are told has a law degree and was a member of that firm at the time, was a skilled adviser for present purposes. We therefore reject that first submission.
6. The second submission is that the Tribunal reached a perverse conclusion. Mr Robinson accepts, on the authority of Palmer -v- Southend-on-Sea Borough Council [1984] ICR 372, that the question of whether or not to permit an out-of-time application to proceed is one of fact for the Employment Tribunal. However, he submits that this Tribunal reached a perverse conclusion on the issue of reasonable practicability for 2 reasons. First, he submits that this is a case in which the Respondent suffered no prejudice. It is common ground that the Respondent was given notice of the claim within the 3 month period. However, the question under Section 111(2) of the Act is whether or not the claim was presented to the Tribunal within time and if not, whether it was reasonably practicable for it to be presented within that period. It seems to us that the question of prejudice to the Respondent is irrelevant to the question posed by Section 111(2)(b), whereas it is a material factor when considering the just and equitable escape clause under the discrimination legislation. (See British Coal Corporation -v- Keeble [1997] IRLR 69.)
7. The second reason advanced for the submission that this was a perverse decision is that there was only a 1-day delay in lodging the application and that the Tribunal ought to have taken into account the fact that they were allowing the discrimination claims to proceed under Section 68(6) of the 1976 Act. Again, it seems to us that these are not material considerations for the Tribunal when deciding whether or not it was not reasonably practicable for the complaint to be presented within time. Of course, it would be relevant to consider the further delay of only 1 day if the Tribunal had found that it was not reasonably practicable for the complaint to be presented within time, but they did not reach that stage in the statutory process.
8. So far as the Tribunal's decision to extend time in relation to the discrimination claims is concerned, that discretion was exercised under a different and wider power contained in Section 68(6) of the 1976 Act. It follows that, in our judgment, this further submission is not made out. In these circumstances, harsh though it may seem, where attempts were made to lodge the application within time, our jurisdiction being limited to correcting errors of law we have concluded that no such error is made out in this Appeal and consequently it must be dismissed at this stage.