United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE CHARLES: The parties to this appeal are Mr Robinson and The Post Office. The matter comes before us today by way of preliminary hearing. The purpose of a preliminary hearing is for the appellant to identify to us a reasonably arguable point or points of law on the appeal. Mr Robinson is the appellant and was the applicant before the Employment Tribunal.

1. He appeals against an order of the Employment Tribunal sitting at Leicester. The Extended Reasons for that decision were sent to the parties on 24th August 1999.
2. The decision was that:

"… the Tribunal does not have jurisdiction to consider the application which is dismissed."

3. It appears from paragraph 2 of the Extended Reasons that on its face the IT1 in the relevant box identified the claim as being one for unfair dismissal, but the Employment Tribunal, in our judgment correctly, having regard to the particulars of the claim, also considered it to contain a claim under the Disability Discrimination Act 1995 (the 1995 Act) and they so treated the application.
4. The Employment Tribunal held that both claims were brought out of time, which indeed they were, and refused to extend time in respect of both applications.
5. As the Employment Tribunal point out, the statutory test under the Employment Rights Act 1996 (the 1996 Act) is different to that under the 1995 Act. The Employment Tribunal set out the relevant statutory provisions in paragraph 3 of the Extended Reasons.
6. Mr Robinson brought an internal appeal against his dismissal. That was not finally dealt with until the letter dated 19th August 1999 was sent to him. That letter simply records as follows:

"I have carefully considered your appeal which you presented with Mr Holmes on 20 April in Stoke On Trent.

I have given full consideration to everything you and Mr Holmes put forward in mitigation at the appeal and made further enquiries about the points you raised.

In the light of all the evidence I believe you have been treated fairly and reasonably and I can find no grounds on which to overturn the decision to dismiss you.

Your appeal is therefore unsuccessful and your dismissal from Post Office employment must stand."

7. That letter was written two days after the hearing before the Employment Tribunal, which took place on Tuesday, 17th August 1999.
8. As we understand the Extended Reasons, the reasoning contained in paragraphs 10-12 thereof relates primarily to the claim for unfair dismissal and thus to the test in s.111 of the 1996 Act, that is a test of reasonable practicability. During the course of his submissions to us, Mr Robinson showed us a letter from the Citizens Advice Bureau referring to the case of Schultz v Esso Petroleum Co Ltd [1999] IRLR 488, where, according to the newspaper or periodical extract he showed to us, the Court of Appeal held that reasonable practicability means more than reasonably capable of being done and the best approach was to ask whether it was reasonably feasible for the applicant to bring his claim in time. Paragraphs 10-12 of the Extended Reasons are in the following terms:

"10. We are satisfied that the applicant did not know that there was a time limit as a result of advice from his union at the time when he was originally dismissed. Approximately six weeks later at the appeal that was confirmed to him by Mr Holmes and in particular he was told of the three month time limit, the type of claim that he could submit and that he would have to submit the claim as the union would not do it for him. Despite what the applicant had said to us we are not satisfied that he was incapable of looking after his affairs generally, as he has alleged. We take account of the fact that he was able to drive a long distance to and from the appeal, that Mr Holmes did not see anything untoward in his ability to understand what was said that day, that he had a number of telephone discussions with the union after that to pursue his internal appeal and that he was able to arrange medical evidence for it. It is clear that the applicant was able to pursue the issues relating to the internal appeal promptly and with vigour.

11. It seems to us that the applicant was concentrating on the outcome of the appeal in order to get his job back and wanted to resolve that first. In doing so he ignored the advice that has been given to him by him union. It was only much later when he obtained the Tribunal forms (at the time when the appeal was still ongoing) that he again spoke to the union and within 24 hours of obtaining the form and speaking to the union had faxed his full application to the Tribunal. That itself is an important factor in showing that, with the assistance of his partner, which was always available to him he was fully able to react promptly and properly once he decided to do so.

12. We consider that there is no reason why the applicant could not reasonably have submitted his application in time, having taken union advice and by the fact he was able to do so when the point arose. Although we accept that the applicant had medical and personal problems, none of those effectively prevented him from submitting his claim. We are satisfied, therefore, that it was practicable for the application to have been presented in time and that his claim under the Employment Rights Act 1996 must fail."

9. In our judgment having regard to the line of authorities, of which Schultz is an example, relating to the approach to be adopted in assessing whether it was reasonably practicable for an applicant to bring his claim in time, Mr Robinson has not raised a point that is reasonably arguable to the effect that the Employment Tribunal erred in law in their application of the test set out in s.111 of the 1996 Act. Accordingly, we dismiss that part of his appeal.
10. The test under 1995 Act is different. The power to extend time is one which the tribunal can exercise if it considers that it is just and equitable to do so in the all the circumstances of the case.
11. In our judgment the first sentence of paragraph 11 of the Extended Reasons, which we have cited earlier is an important finding in respect of the 'just and equitable' test. We repeat that it is in the following terms:

"It seems to us that the applicant was concentrating on the outcome of the appeal in order to get his job back and wanted to resolve that first."

12. In his submissions to us this morning Mr Robinson has made assertions to the effect that he was being told by the Post Office that if and when he provided them with an expert medical opinion showing that he could work in different circumstances, the Post Office would put the relevant changes into effect.
13. So far as those allegations are concerned, they do not form part of the findings of the Employment Tribunal, but the sentence in paragraph 11 of the Extended Reasons we have cited does show that (a) Mr Robinson was concentrating on the outcome of the appeal, and (b) his purpose in bringing that appeal was to get his job back or to set aside the dismissal.
14. It seems to us that it is at least arguable that a recommendation made under the 1995 Act could also achieve that result so far as Mr Robinson is concerned.
15. The Employment Tribunal deal with the test under the 1995 Act in paragraph 13 of the Extended Reasons, which is in the following terms:

"13. The test under the Disability Discrimination Act 1995 of whether it is just and equitable to extend time is a different situation, which we have considered carefully and at length. We accept that bearing in mind the applicant is still proceeding with his internal appeal and in the circumstances generally of the evidence to be put forward that there is no prejudice that the respondent would suffer by the delay in the application, other than the fact that the respondent had to face a claim which would otherwise be out of time. Equally whatever the applicant says, the respondent is not responsible in any way for the applicant's delay in submitting his application. However, the applicant was concentrating on the appeal and was able to do so despite advice he had received on two occasions from his union about an application to the Tribunal and the time limits and did not do so. We take into account that the time limit had to have some meaning and just because there is no prejudice to the respondent does not mean that the limit can be avoided. We consider that the applicant should have submitted his claim in time and that with the advice he could have had and did have, both from his union and his partner, should have submitted it in time. On balance we do not consider that it would be just and equitable to extend the time in order to allow this application to proceed when it was presented some three weeks late. It follows, therefore, that as the application under both Act is out of time this application shall be dismissed as being beyond the jurisdiction of the Tribunal."

16. It is apparent from that paragraph that the Employment Tribunal took into account the fact that Mr Robinson was still proceeding with his internal appeal. They also found that there was no prejudice to the Post Office caused by the delay, other than that which inevitably flows from the exercise of a discretion to extend time (i.e. that it would have to defend the claim on its merits)
17. It seems to us, having regard to the terms of the statute and a trilogy of cases recently dealt with in this Tribunal, namely: Aniagwu v London Borough of Hackney and others [1999] IRLR 383, London Borough of Waltham Forest and others v Omilaju (Unreported) heard in this Tribunal on 17th January 2000 by the President and a case called Dean v London Borough of Islington (Unreported – EAT/594/97), which was an appeal heard by a Tribunal chaired by myself recently, that a reasonably arguable point of law arises as to the weight that an Employment Tribunal in exercising the "just and equitable test" should give to the fact that an employee is continuing with the internal process of appeal, in particular when, as in this case, the possible outcome of that appeal would be for the employee to get his job back and that is the main thrust or focus of the proceedings that the employee subsequently seeks to bring out of time.
18. In short, the issue is how in assessing what is just and equitable in all the circumstances the fact that an employee is exercising internal processes rather than going to law to achieve his or her main purpose of getting his job back should be taken into account. Notwithstanding the fact that they did have regard to the fact that Mr Robinson was pursuing his internal appeal, in our judgment it is reasonably arguable in this case that the Employment Tribunal erred in law in respect of the weight they gave to that point in the circumstances of this case.
19. We will therefore direct that this appeal proceed in respect of the appeal against the refusal to extend time under the 1995 Act. We will give it Category A and a time estimate of one day.
20. Finally, we would like to make the following points. Mr Robinson has represented himself today. He has difficulty travelling to the Tribunal. He made submissions to us to the effect that he found it difficult to get over his points and that he did not understand some of his points.
21. In our view he was able to get over the general nature of his points, but he is not legally trained and there is little doubt that he will have some difficulty in dealing with the technicalities of the legal arguments that will arise on the substantive appeal. He has had the benefit of being able to talk to an ELAAS representative this morning. It will be helpful if the ELAAS representative would also kindly explain to him the prospect or possibility of him obtaining Legal Aid. We would wish it to be recorded that if Mr Robinson is within the financial limits for Legal Aid, that this is a case which raises a reasonably arguable point of law, in respect of which, Mr Robinson would benefit from receiving legal advice and from being represented before this Tribunal. Not only would he benefit, but also we believe that this Tribunal would benefit from having both sides represented on this appeal.