United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS P M DUFFAY (Representative) The Employment Law Advice Centre 22 St Edmund's Road Northampton NN1 5EH


 


JUDGE WILSON: This is has been the preliminary hearing for the proposed appeal by the original applicant against the decision of the Employment Tribunal sitting in Bedford on 16th May 2000, that the application should be dismissed because the tribunal had no jurisdiction to hear it. The reason why there was no jurisdiction was that the application had not been presented within the three months limited by statute, subject to any extension which in its discretion a tribunal might be inclined to grant if it decided it was not reasonably practicable for the application to have been presented in time.

1. The applicant complains of constructive dismissal and/or breach of contract by his employers. He worked as a maintenance engineer having been an ex-regular soldier and being someone serving in the Territorial Army. He says he was called up for 7 months compulsory service in Kosovo with effect from 26th June, but was deselected because the respondent company put in a claim for the cost of his absence which was beyond the limit for the Army to pay. When that happened he had raised a grievance procedure within the company twice, fruitlessly, and he claimed that he had no option but to resign if he wanted to go to Kosovo. Therefore, he complained the company was in breach of the trust and confidence that should underwrite a contract of employment and were guilty of constructive dismissal.
2. The respondent company denied this and claimed that the application was out of time in any case. It therefore sought the preliminary hearing, which is the subject of the proposed appeal. In any case it is plain that the applicant was not called-up but was responding to an invitation to volunteer. The Ministry of Defence confirmed this view to the company but the company claimed that the applicant was intransigent as he had been over the grievance procedure. The company suggested that he was trying to use the system and that the application was frivolous.
3. The matter came before the tribunal who delivered a decision with extended reasons. They found that on 22nd June a circular letter had been sent which said, amongst other things, that the recipient "would not called out without the prior approval/agreement of your employer". With that letter was one for Mr Davies to hand to his employers, which he did. It was found that there had then been discussions, the upshot of which was the respondents did not give their consent.
4. The tribunal found that the applicant was not only well aware of his right to make an application to the tribunal at the time of his resignation in July 1999, but had determined at that point that he would make such an application. The applicant had a period of 17 days between his resignation on 22nd July and leaving for Kosovo on 8th August, and the tribunal found that there was no evidence of him taking any steps whatsoever during that period. The applicant gave no evidence about the availability of advice to him in Kosovo, and no evidence about whether there were means of communication from Kosovo by telephone or letter for example. The tribunal found that he was totally preoccupied with military duties in Kosovo until he returned for a short leave on 5th December 1999. On 7th December he sought advice in respect of his claim which was prepared and lodged on 8th December 1999.
5. The Employment Tribunal went on to direct itself concerning the provisions of section 111 of the Employment Rights Act 1996 and dealt also with Article 7 of the Employment Tribunals Extension of Jurisdiction Order 1994. It then referred to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 at Schedule 1 which, amongst other things, provides that an application can be submitted by a relative, friend or agent of the applicant, so long as they have the applicant's authority to do so.
6. In paragraph 11 the Employment Tribunal found that it was clearly:

""reasonably practicable" for Mr Davies to have made his application within the seventeen days before he left for Kosovo."

7. Mrs Duffay today says that that is not the right approach because every applicant has three months in which to make the application and relies upon the decision in Schultz v Esso Petroleum Co Ltd [1999] 1 All ER [1999] IRLR 488 CA.
8. That was dealt with by the tribunal. They said in paragraph 12 that it was for the applicant to satisfy them on a balance of probabilities that it was "not reasonably practicable" for his application to have been submitted by 21st October. They pointed out that it was not a compulsory Call Out and that in fact Mr Davies had resigned in order to be able to volunteer. On the basis that Mr Davies was engaged in active service towards the end of the three months period and as a result unable to take any step to promote his application to the tribunal, he had deliberately put himself in that position. He had taken no preparatory steps and his circumstances were different from those in Schultz. He had put himself into the position where, as he now claimed, it was impossible to present his application. There were steps which he could have taken. He could have made arrangements for the issue of the application, whether personally or through a third party, and he has given no explanation as to what steps he took or tried to take in Kosovo. He simply relied on his preoccupation with military duties. Finally, once Mr Davies returned home for his short leave, he acted promptly in taking advice and presenting his application to the tribunal. His very prompt action at that time demonstrated the ease with which he could have presented his application before he left for Kosovo. Therefore, the tribunal found that there was no ground upon which they should extend the time, which was in line with the decision by the Chairman sitting alone for a review.
9. We can see nothing in this case, nor in anything which has been put before us, which indicates that there would any prospect of success were the matter to proceed to full argument. In those circumstances the appeal must be dismissed at this stage.