United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MO SETHI (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. The Appellant, Mr Devenney, commenced employment with the Respondent company on 1 September 1997; he was a Branch Manager. After that employment came to an end he presented an Originating Application to the Bedford Employment Tribunal on 5 September 2000. That was the date on which it was received at the Tribunal.
2. In his Originating Application he complained of constructive unfair dismissal. He gave as the effective date of termination (EDT) of his employment 26 June 2000.
3. By their Notice of Appearance the Respondent denied that they had dismissed the Appellant. They contended that he had resigned on 26 May 2000 in circumstances not amounting to constructive dismissal. They also took a preliminary point. If the EDT was 26 May, then his complaint was presented outside the primary limitation period of 3 months, set by Section 111(2)(a) of the Employment Rights Act 1996.
4. That preliminary issue came on for hearing before a Tribunal sitting at Watford on 7 December 2000. By then, the Tribunal record, it was accepted by the Appellant that the EDT was indeed 26 May, so that his complaint was out of time.
5. He relied on the escape clause provided by Section 111(2)(b) of the Act. He contended that it was not reasonably practicable to present the complaint within time.
6. As to that the Tribunal heard evidence from the Appellant and his wife. Based on that unchallenged evidence they made certain findings of fact, principally:

(1) That the Appellant had been of work suffering from stress since March 2000. His doctor had prescribed Prozac.

(2) By 2 June 2000 he had been able to discontinue psychotherapy sessions.

(3) At about that time he consulted a solicitor in Chelmsford who was not expert in employment law and was 3-4 weeks later referred by that solicitor to a second solicitor. About two weeks thereafter the Appellant saw that second solicitor, but having discussed fees decided he could not afford his services.

(4) From then on, that is from late July, the Appellant, with the assistance of his wife, began to formulate an application to the Employment Tribunal.

(5) By then he had found a new job which started on 2 June as a Manager for a scaffolding company. That job included dealing with paperwork and administration, so the Tribunal found..

(6) Shortly before 23 August, they found, the Appellant came to the view that his employment with the Respondent had in fact ended on 26 May. He hastily completed his form ET1 and signed and dated it 24 August. We interpose that the last day for presenting the application was 25 August.

(7) On 24 August Mrs Devenney posted the Originating Application, first class, to the Bedford Employment Tribunal. It did not arrive until 5 September.

7. In these circumstances the Tribunal asked themselves whether it was reasonably feasible for the Appellant to have presented his application to the Tribunal on or before 25 August. They found that it was. The Originating Application could have been hand-delivered or faxed to the Tribunal on 24 August. It would then have been in time.
8. As to the method of presentation used, first class post, the Tribunal found that it was not reasonable for the Appellant to expect first class mail to arrive the following day. Accordingly they dismissed the complaint as being out of time.
9. Against that decision Mr Devenney now appeals. This is a preliminary hearing, held to determine whether the appeal raises any arguable point of law to go to a full hearing with both parties present. He is today represented by Mr Sethi of Counsel under the Elaas Pro Bono scheme.
10. Mr Sethi first submits, on instructions, that the Appellant did not agree before the Tribunal that the EDT was 26 May. We are not prepared to re-open that question on appeal. The agreement is clearly recorded at paragraph 3 of the Tribunal's reasons. The Appellant's evidence on the point also appears in their findings at paragraph 8.
11. Thus, the real question is whether the Tribunal erred in law in finding that it was reasonably practicable to present the complaint within time. That is largely a question of fact for the Employment Tribunal. See Palmer v Southend-on-Sea Borough Council [1984] IRLR 119.
12. As to that issue, Mr Sethi points to four factors which he submits the Tribunal were required to take into account; the Appellant's illness; inaction by solicitors; postal delay and the Appellant's mistaken view of the effective date of termination. We are not persuaded that the last is a relevant factor and no authority to that effect has been cited.
13. The first two factors were, in our judgement, permissibly considered by the Tribunal at paragraphs 10 and 11 of their reasons, respectively. The real question in this case, we think, concerns the postal delay.
14. In days of yore, when the 1^st/2^nd Class post system was introduced, the High Court was able to deem, see Practice Direction [1968] 1 WLR 1489, that documents posted first class would arrive the day after posting. However, initial optimism as to the efficiency of the service, did not equate with reality and in 1985 a new Practice Direction was issued [1985] 1 WLR 489, whereby 1^st Class mail was deemed to arrive on the 2^nd working day after posting, an assumption formerly made in respect of 2^nd Class post under the 1968 Practice Direction.
15. In St. Basil's Centre v McCrossan [1982] ICR 140, Mr Justice Wood, then President, suggested that in determining what is a reasonable expectation for delivery, Tribunals may derive guidance from the Practice Direction [1985], subject to any evidence to the contrary, as to which there was none in the present case.
16. That is what this Tribunal did. They found at paragraph 12 of their reasons that it was not reasonable for the Appellant to expect 1^st Class mail to arrive the next day. That was a permissible finding in our view.
17. In these circumstances we have been unable to discern any arguable point of law which ought to proceed to a full hearing and consequently this appeal must be dismissed.