United Kingdom Employment Appeal Tribunal

APPEARANCES

 

	THE APPELLANT In Person


 


JUDGE SEROTA QC

1. This is a Preliminary Hearing on an Appeal brought by Mr M P Gregory in relation to his dismissal by the Parker Pen Company. Mr Gregory had the misfortune to suffer a road traffic accident. During the course of investigations by insurers for the driver of the other car it would seem that a video was made which was said to show that Mr Gregory was not as seriously disabled as a result of the accident as he claimed. This video appears to have been made available to his employers who were concerned that he may have been suggesting he was unable to work at a time when his disability was significantly exaggerated.
2. This led to disciplinary proceedings being taken by Parker Pen Company and although Mr Gregory challenged the suggestion that he had effectively been "putting it on," a disciplinary hearing took place on 8 August 2000. During the course of that disciplinary hearing Mr Gregory made a reference to the fact that he had an IT1 (that is an originating application to what was an Industrial Tribunal) standing by. He told us, as he told the Employment Tribunal, that this in fact was what might be characterised as a "white" lie and was designed to put some pressure on and give him some leverage against, the Parker Pen Company in the hope that they would offer him his job back or some other job.
3. It is said on the other hand, that was said at the Tribunal and the fact that he referred to an IT1 or ET1 showed that he was at least aware in general terms of the right to apply to an Employment Tribunal. Mr Gregory was summarily dismissed on 23 August, but there was an internal disciplinary procedure. We therefore have some sympathy with Mr Gregory who obviously thought that it was inappropriate to make an application to an Employment Tribunal on the basis of his dismissal on 23 August while there remained hope that the internal disciplinary procedure would result in his being offered his job back. Unfortunately, from Mr Gregory's point of view, the disciplinary procedure came to an end without the result he sought. There was one appeal which was dismissed and the second appeal before Parkers as we have been told, was before the Director of Human Resources and the managing director of the plant where he worked. This second appeal was on 14 November and upheld the original dismissal. A letter was sent on 15 November confirming the result of the second appeal which was received by Mr Gregory on 16 November.
4. Mr Gregory has told us as he told the Employment Tribunal that he knew nothing about three-month time-limit. Nothing had been said to him when he went and sought advice initially, before the 18 August hearing from the Citizens Advice Bureau, later when he went to the local Job Centre to obtain the form, nothing specifically was said to him about the three-month time-limit.
5. Unfortunately, the complaint was not made in time, that it was not received by the Employment Tribunal until 23 November. The Employment Rights Act 1996, S 112(2) provides that an Employment Tribunal should not consider a complaint under this section, that is a complaint for unfair dismissal, unless it was presented to the Tribunal either before the end of the period of three months beginning with the effective date of termination that would be within three months of the 23 August 2000 or within such further period as the Tribunal considers reasonable in the case where it is satisfied it was not reasonably practicable for the complaint to be presented before the end of that period of three months. It follows that the complaint was one day out of time.
6. The question as to whether to extend the time under Section 111(2)(b) was considered by the Employment Tribunal. The Employment Tribunal came to the conclusion that there was nothing that would have prevented Mr Gregory from making that application at an earlier stage. They say in paragraph 8 of their decision, "the Tribunal is satisfied that, in all the circumstances of Mr Gregory's case, it was." [that is reasonably feasible to present the complaint within the three months.] "Accordingly the Tribunal are not satisfied, on the evidence of Mr Gregory, that it was not reasonably practicable for him to present his complaint by 22 November 2000" and, accordingly, they determined they had jurisdiction to hear the complaint.
7. It seems to us, as a matter of law, that reasoning is not open to review by us. It may seem an extremely harsh decision to Mr Gregory. We all have some sympathy with Mr Gregory because it seems to us perfectly reasonable for an employee to defer taking proceedings before an Employment Tribunal while his appeal rights have yet to be determined internally but nonetheless the law is clear and we can find no error in the way in which the law was applied by the Employment Tribunal.
8. In those circumstances, and as we say with some regret, because it is our function to apply the law not to make it, we have come to the conclusion that Mr Gregory's appeal has no realistic chance of success and we therefore must dismiss it.