United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON.
For the Respondent	RESPONDENT NEITHER PRESENT NOR REPRESENTED.


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for full hearing following the directions of an earlier division of this court at a preliminary hearing, Mr Peter Lancaster seeks to have set aside as erroneous in law the decision of the Southampton Employment Tribunal dismissing on a preliminary issue his complaints of unfair dismissal against his former employers D E K Printing Machines Ltd. The decision of the Tribunal is contained in extended reasons at pages 6-10 of the appeal file before us, sent to the parties on 12 March 1999 after a hearing on 9 March 1999 before a full tribunal of 3 members. That Tribunal hearing had been understood by both parties to be the full hearing into the merits of Mr Lancaster's originating application, which he had made dated 22 December 1998 but is recorded as having been received in the Tribunal office on 4 January 1999. Although the Respondents to the proceedings had not raised any issue about the originating application not having been submitted within the prescribed time limit when the proceedings came on for hearing before the Tribunal, the Tribunal themselves then for the first time raised the issue that Mr Lancaster's originating application was out of time as not having been submitted within the three-month time limit prescribed by s.111 Employment Rights Act 1996 for a complaint of unfair dismissal.
2. The effective date of termination of Mr Lancaster's employment was found by the Tribunal and is accepted to have been 30 September 1998, so that the three months prescribed by s.111 for the submission of an originating application complaint for unfair dismissal expired on 29 December 1998. The only issue therefore considered by the Tribunal and all that they required the parties to make submissions about at the hearing, was the question of whether Mr Lancaster's complaint had been made, so as to fall within the provisions of s.111 (2)(b), permitting the Tribunal to entertain the proceedings at all on the ground that it had been made:

"Within such further period as the Tribunal considers reasonable in a case it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the specified period of three-months."

3. Mr Lancaster who was representing himself at the Tribunal proceedings, was taken by surprise by this but made two submissions on that issue. First, he explained to the Tribunal that he had himself been under some misunderstanding about the time limits, even though he accepted very frankly before us that he had left matters until rather late in the day before actually taking the steps to lodge his originating application. We are not concerned with that first ground on which the Tribunal held against him, but only with the second, which concerned the steps Mr Lancaster had actually taken in attempting to lodge his application at the end of December 1998. As recorded by the Tribunal in paragraphs 26-30 of their extended reasons the problem had come about because he had sent his application using the Royal Mail Special Delivery Service, posting it on 23 December 1998 in the expectation that it would be delivered to the Tribunal office on the following day, or at any rate within a few days thereafter, which would have been in time. As the Tribunal said:

26. "The only other matter which does cause us concern is that, when the Applicant realised that he might be near the time-limit of 29 December 1998 (although he told us that he was not sure whether it was 29 December 1998 or 29 January 1999), he sent the letter by special delivery on 23 December 1998 and he paid the appropriate fee to the Post Office. The fact that he used special delivery leads us to believe the he thought he was very close to the expiry of the time-limit, and that 29 January 1999 was probably not in his mind.

27."In normal circumstances, if an Applicant uses first class post, in the absence of any evidence to the contrary, it can be assumed that the letter would be delivered two days later. Possibly, by using special delivery it might be assumed to be delivered earlier. However, we note that the Applicant posted the letter on 23 December 1998 as is apparent from the envelope in the Tribunal file. This was one day before Christmas Eve.

28. "The 23 December 1998 was a Wednesday and 29 December 1998, the date by which the Application had to be presented was the Tuesday of the following week, i.e the day after the Bank Holiday Monday.

29. "Christmas is notorious for postal delays and to send a letter the day before Christmas Eve, even with special delivery, and to expect it to arrive on a particular day after the holiday period is, in our view, unrealistic. The Applicant clearly should have taken steps either to hand deliver the application, or to pay for a courier, or to post it much earlier. He had ample time and opportunity to take any of these steps, but he failed to do so.

30. "We find, in the circumstances, that it was reasonably practicable for the application to have been presented within the time-limit of three months and therefore the application fails and it is dismissed."

4. The Tribunal correctly approached the question they had to decide under s.111 (2) (b) on the basis that delivery to the appropriate Tribunal office was required before the document could be said to have been "presented". That is well established by the previous authorities on the subject of what is required in order to lodge a complaint of unfair dismissal within the prescribed time limit. In other words, the date of posting is not the date of delivery or presentation to the Tribunal office; rather it is the date of receipt at the Tribunal office that counts for this purpose. The question of what is implied by the requirement in s.111(2) (b) by the expression:

"Where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

has been the subject of a certain amount of judicial authority. The written submissions of the respondents, which we have taken into account in this case, refer us in particular to an earlier decision of another division of this court, presided over by Slynn J as he then was, in Beanstalk Shelving Ltd v Horn [1980] ICR 273. That was a case in which a Tribunal had accepted that an applicant, who had relied on delivery by the first class post taking place on the following day, had taken steps which were reasonable and was not prevented from having his application considered by the consideration that it might have been practicable in some way to post the application earlier, allowing more time. As Slynn J explained in that case, the expression "reasonably practicable" has been given a somewhat extended meaning in this particular context, as he says on page 275 D:

"If the matter were not covered by authority we would have been disposed to consider that the words "not reasonably practicable" meant were not reasonably capable of being done, or could not reasonably have been done within the period. It is quite plain, subject to what is said to be the postal delay that it was perfectly possible for the complaint to have been put in earlier. However the matter is not free of authority. In Dedman v British Building and Engineering Appliances [1974] ICR 53, the Court of Appeal considered the meaning of the phrase "practicable", although it is right to bear in mind as we have been told, that at that stage the period within which a claim had to be put in was four weeks. There the wording was not "reasonably practicable but "practicable". Lord Denning MR at page 60 said that the phrase should be given a liberal interpretation in favour of the man. He continued:

Strictly speaking it is nearly always 'practicable' for a man to present his claim within four weeks: unless he is so ill as to not be able to write and he has no one to do it for him. Take a case where he posts his complaint two days before the four weeks are up and it is delayed in the post so that it arrives one day too late. Strictly speaking, it was 'practicable' for him to have presented it in time, because he could have posted it one day earlier. But the English Court would hold him saved by the escape clause on the ground that it was 'not practicable.'

5. And giving the decision of the Employment Appeal Tribunal in that case, Slynn J made it clear that the question was not actual physical practicality at any stage during the three month period, but that if a reasonable expectation of delivery within the 3 month period existed, then the application could be properly considered. In his words at page 277 letter A:

"Accordingly, on the basis of these authorities, the question is whether, if a letter is posted by first class post, on a particular day, it can be expected, in the ordinary course of post to arrive within the time limit for making an application. Here the Industrial Tribunal were confident that it could have been expected in the ordinary course of post, having been sent first class, to have arrived on the following day. The Tribunal would not appear, it would seem, from the notes of evidence, to have had a great deal of evidence as to the position; but it is clear they were told it was sent first class; and they were referred to what is said in notes to the Supreme Court Practice [1979] that if a letter is sent by first class mail at that time, service will be treated as if having been effected on the next day after posting."

Although it is fair to add that Slynn J said that that desirable level of service might have slipped by the time of the case before them. The decision of the Employment Appeal Tribunal in that case, therefore, confirmed that the issue for the Tribunal was whether there was a reasonable expectation from the steps which the Applicant actually took of the originating application being delivered at the Tribunal office in time, which is of course a less stringent test than the question of actual physical practicability at any date in the three-month period.

6. Looking again at the reasoning of the Tribunal in this particular case, we think there are grounds for criticism of the approach they took. In particular there appears to us to have been a failure on the part of the Tribunal shown in their stated reasons to enquire or to take proper notice of the special nature of the Royal Mail special delivery service in this case. In our judgment the fact that Royal Mail special delivery ought to involve an expectation of next day delivery is a matter of which judicial notice can properly be taken by a Tribunal without that having to be specially proved by evidence in each individual case. Here the Tribunal appear to have accepted that the employment of a commercial courier would have satisfied the requirements of s.111 (2) (b), as is shown by the reference to the use of a courier being a "possible alternative for the Applicant" in paragraph 29 of their extended reasons. What we find unexplained in the Tribunal's stated reasons is why a similar principle was not applied to the use of the Royal Mail special delivery service, which in the normal course of events can be expected to result in guaranteed next day delivery.
7. We think this point, and the apparent failure of the Tribunal to enquire into the details of the actual service used by the Applicant, is of particular importance in this case where the Applicant was an unrepresented party, taken by surprise at the hearing when this question was raised by the Tribunal itself, without prior warning, as a preliminary point in what he had been expecting to be the substantive hearing of the merits of his claim for unfair dismissal. In fact, if he had been given the opportunity he would, it is clear to us, have been able to produce evidence from the Royal Mail itself as to the nature of the guarantee given in the special delivery service, and also of the fact that the use of this service on 23 December 1998 should have resulted in delivery to the Tribunal office on 24 December, the day after posting, without any difficulties at all. Such a letter has been produced by Mr Lancaster in the course of this appeal and is before us at page 5 of the appeal file. In particular it confirms that the Tribunal office was open on 24 December 1998 and the Royal Mail is unable to explain why the item had not been delivered before noon on that date, as is the guaranteed normal time of delivery when the special delivery service is used. That letter from the Royal Mail is not necessary to read in detail but it does show an extremely apologetic attitude on behalf of the Royal Mail service and appears to indicate that the failure to deliver this item in the normal way by noon on 24 December 1998 was something totally abnormal and unexpected.
8. The written submissions of the respondent, all of which we have taken into account since they have quite properly not thought it necessary to attend in person before us on the hearing of this appeal, take the point that nonetheless, the questions of reasonableness and reasonable practicability on which the Tribunal determined this case were issues of fact and degree for an Employment Tribunal itself to consider and not matters in which this court should interfere. We have taken account of those submissions, but for the reasons we have already indicated we are satisfied that in this case the Tribunal did err in failing to show, so far as the recorded reasons for its decision are concerned that the question of a reasonable expectation of delivery in time, as shown by the authority of Beanstalk Shelving Ltd v Horn [1980] ICR 273 to which we have referred, had been adequately addressed.
9. For that reason, we allow this appeal. We set aside the decision of the Tribunal on the preliminary issue and on that issue, we substitute our own decision that under s.111 (2) (b) of the Employment Rights Act 1996, this originating application was presented within a reasonable period after the expiration of the three-month time limit in circumstances where having regard to the somewhat specialised meaning of "not reasonably practicable" to which we have referred, the application can and should be properly entertained. We therefore remit the case to the Tribunal for hearing and determination of the substantive issues raised by the complaint of unfair dismissal made by Mr Lancaster in his originating application.