United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G HARRISON (of Counsel) Messrs Simon & Co Solicitors 28 South Road Southall Middlesex UB1 1RR


 


JUDGE PETER CLARK: The appellant, Mr Ali, was summarily dismissed by the respondent, Noon Products Ltd, on 4th February 1998. The respondent says that he was dismissed for gross misconduct, that is, assaulting a fellow employee; he contends that the real reason for his dismissal was in order to discourage employees from joining the GMB union. The respondent denies that allegation.

He consulted solicitors who prepared a form IT1 alleging both unfair dismissal and wrongful dismissal which he signed and dated 27th April 1998, that is, one week within the primary limitation period for both complaints of three months.

It seems that the form IT1 was not received by the Employment Tribunal. Whether or not it was posted is not clear from the relevant tribunal decision. It matters not. A further copy of the form IT1 was faxed to the Employment Tribunal on 31st July 1998. The respondent, in addition to resisting the claim on its merits, took the point that the claim was out of time.

The limitation point was set down for a preliminary hearing before a full Employment Tribunal sitting at London (North) on 12th November 1998. The appellant did not appear and was not represented at that hearing. Apparently, he had not put his solicitors in funds. The tribunal considered a letter from the appellant's solicitors and an affidavit from Mr L Sangha who then had conduct of the case. We see from a subsequent review decision dated 12th March 1999 in this case that in their letter of 10th November 1998 the appellant's representatives indicated that neither they nor the appellant would be attending the hearing and that they were unable to present any further evidence in addition to the written representations furnished with that letter.

By a decision with extended reasons dated 1st December 1998 the tribunal dismissed the complaint. They found that there was no evidence of posting on 27th April 1998, although as Mr Harrison submits on one reading paragraph 5 of their reasons they appear to accept that the Originating Application was sent in April 1998. They also found that there was no follow up system of checks by the appellant's solicitors to ensure that the Originating Application had arrived until a check was carried out on 29th July 1998. They found, applying the strict test laid down in Capital Foods Retail Ltd v Corrigan [1993] IRLR 430, applied in Camden NHS Trust v Kennedy [1996] IRLR 381, that it should reasonably be expected that solicitors should employ a checking system to ensure that the conduct of business is taking a normal course and there was no evidence of such a satisfactory system. It was reasonably practicable for the complaint to have been presented within time. Accordingly, the claim was time-barred and would be dismissed.

In this appeal Mr Harrison expressly abandons the contention advanced in the Notice of Appeal that the tribunal misdirected themselves in their interpretation of Kennedy. However he submits that it is implicit in that decision that having found that the solicitors failed in adopting a proper checking system, it is then necessary to go on to see whether that failing caused the application to be out of time.

We are unable to accept that submission. Looking at the facts in Kennedy, limitation expired on 27th December 1994. The Originating Application was posted on 19th December. The solicitor having conduct of the applicant's case expected to receive an acknowledgement around 5th January 1995. However, he heard nothing and on 30th January he telephoned the tribunal office to be told that the application had not been received. A copy of the Originating Application was then promptly sent to and received by the tribunal on 2nd February 1995.

As we understand the ratio of the EAT decision in Kennedy, it is to be found at paragraph 17 of the judgment of Judge Colin Smith QC, where he said:

"A competent solicitor practising in this field must be taken to appreciate the vital importance of complying with time limits strictly and having in place a system designed to ensure that such limits are complied with at the time when they are supposed to be being complied with."

That is the position in this case. The solicitors for the appellant took no steps to ensure that the Originating Application was presented within the three month limitation period. Their system of checking was, this tribunal found, inadequate. In these circumstances we can see no basis for distinguishing this case from the case of Kennedy and, indeed, the earlier case of Corrigan.

Mr Harrison also invited us to apply the just and equitable principle, which is to be found in the discrimination statues, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. In our judgment, that is not permissible. There is a clear distinction to be drawn between the reasonable practicability test under the Employment Rights Act 1996 and the identical test under the Extension of Jurisdiction Order 1994 on the one hand and the discrimination legislation just and equitable test on the other.

It seems to us that this appeal raises no arguable point of law. The reality is that if the appellant has a remedy it must be against his solicitors in negligence.