United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN FODDER (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us as a preliminary hearing the appeal of Mrs Ana Gardner in the matter, Gardner against Canterbury College. On 4^th December 2000, Mrs Gardner, who today is being represented by Mr Martin Fodder under the ELAAS Scheme, lodged her IT1 for unfair dismissal.
2. She had been a lecturer in Spanish for the College. She said in her Box 4 ("Please give the dates for your employment") that she had been employed from September 1993 to July 2000. In conflict with that, in her Box 9 ("If your complaint is not about dismissal, please give the date when the matter you are complaining about took place") she filled in "7^th September 2000", and yet it was a complaint about dismissal because her complaint was, in Box 1, "unfair dismissal". So there was a certain amount of confusion going on.
3. She said in her expansion of Box 11

"After working at the College for seven years I cannot understand how the College can justify their decision that I am not good for the job I have been doing for over twenty five years and all my hours are given to somebody twenty years younger than me with no experience at all in some of the courses I was teaching"

She also said

"I want to stress that I am coming to the Tribunal as a way of therapy for all my unrest in my private and professional life. I want to know the real TRUTH, so I can move on and go back to my normal self."

That was the IT1.

4. One notices immediately that if she had indeed been employed only down to July 2000 that the IT1 was beyond the three month time limit. If, on the other hand, the matter that she was complaining about took place on 7^th September 2000, then she was just inside the time limit.
5. On 18^th January 2001, the College put in its IT3 and it took two points in a letter. It said

"We can confirm that the Applicant's claim has indeed been presented out of time since her effective date of termination of employment was 13^th July 2000 yet her claim was not presented to the Tribunal until 1^st December 2000. Moreover the Applicant does not have the requisite length of service to bring a claim against the Respondent since her employment started on 27^th September 1999.

We should therefore be grateful if this matter could be listed for a preliminary hearing as a matter of urgency in order to determine whether the Tribunal has jurisdiction to hear the Applicant's claim."

That was a letter and those points were amplified in the grounds of resistance of a more formal character. There was a heading "Time-Barred Application" which amplified those point in more legal language; we need not read it out.

6. On 21^st March 2001 there was a hearing at the Employment Tribunal and on 2^nd April 2001 the decision was sent to the parties. It was the decision of the Tribunal at Ashford, sitting under the Chairmanship of Mr D E de Saxe, and it said

"The unanimous decision of the Tribunal is that the application be dismissed for want of jurisdiction"

and the Tribunal said in their paragraph 1

"In this case Mrs Gardner claims that she was unfairly dismissed by her former employers, Canterbury College, from her part-time position as a lecturer in Spanish. She also seeks written reasons for the dismissal. This is a preliminary hearing to determine whether, having regard to the time limits contained in Section 93(3) and 111(2) of the Employment Rights Act 1996, which provides that complaints of unfair dismissal and for the supply of written reasons for dismissal must be brought within three months of the effective date of termination of the Applicant's employment."

7. There are a number of passages in the Extended Reasons of the Tribunal that show that the Tribunal had difficulty getting over to Mrs Gardner at the hearing, where she was in person, the difference between objections in point of jurisdiction and objections in point of the merits. The Tribunal was only concerned with the case on jurisdiction and in paragraph 5, the Tribunal said

"We asked Mrs Gardner why her Originating Application had not been presented in time. We explained that she had to show us that it was not reasonably practicable for it to have been presented in that time. Mrs Gardner told us that she was so upset at having been not given the contract for the year 2000/2001 (although she was kept on the supply list), that she became depressed. Unfortunately, Mrs Gardner did not have any medical evidence to support her claim of depression, much less the sort of depression which would have made it not reasonably practicable to present a claim. She did not put forward any other reason for not having presented her claim in time.

In fairness to Mrs Gardner, the Tribunal wishes to record that she was clearly distressed at not having been awarded a contract for 2000/2001: It became clear that the real complaint was that she had been unsuccessful; in the interview, whereas younger and possibly less experiences lecturers had been successful. We tried to explain to Mrs Gardner that this was not a matter which at present gave her any rights in law."

8. The Tribunal found that the effective date of termination of Mrs Gardner's contract of employment was 13^th July 2000 and accordingly they held that an IT1 should have been presented not later than 12^th October 2000. They found on the health ground as follows

"We are not satisfied, on Mrs Gardner's unsupported evidence, that she was too ill to present her claim in time. While we have sympathy for Mrs Gardner, we find that she has not shown us that it was not reasonably practicable for her to present her claim in time, and we therefore have no jurisdiction, having regard to the provisions of Section 111(2) of the Employment Rights Act 1996, to consider the merits of her claim."

9. That was the way the case went at the Tribunal and on 9^th May 2001 Mrs Gardner presented a Notice of Appeal. Her Notice of Appeal, I'm afraid, does show, unfortunately, that she still has not understood thoroughly that the Tribunal had not been concerned with the case on the merits but was simply looking at jurisdiction. Fortunately, and we are very grateful to Mr Martin Fodder, she has been represented today and two points have been advanced which we think need some further thought.
10. First of all Mr Fodder points out that, so far as one can tell, throughout all the proceedings Mrs Gardner had no assistance whatsoever of any professional or informed kind. She was simply advising herself and was ignorant of any time limit. She had visited her doctor and Mr Fodder tells us, on instructions, that in November 2000 she was on medication for depression and, moreover, that it was a letter of 6^th September, which is now put before us in a supplementary bundle, that triggered her depression. On 6^th September the College wrote to Mrs Gardner thanking her for attending a recent interview and continuing

"It was decided that on the basis of the interview you would unfortunately, not be offered the above work [which was Spanish Supply Work Currently Available]"

11. It was that that brought to her mind that she was dismissed and it was that, as we understood the argument, that led her to put in "7^th September" in Box 9, to which we earlier referred. Her perception, says Mr Fodder on instruction, was that it was not until the 6^th September letter, received on 7^th September, that she understood that she had been dismissed and to that extent the three months was perceived, in her mind, as running from 6^th September. She says that that was an argument that was put to the Tribunal but, as Mr Fodder points out, it receives no mention in the reasoning of the Tribunal. He says that is potentially an error of law.
12. Secondly, it is argued, again by Mr Fodder on instructions, that Mrs Gardner asked for an adjournment in order to prove her case on the medical side of things. She says that she had not appreciated before the hearing that she had to prove that it was not reasonably practicable on medical grounds for her to have presented an IT1 during particular periods, but that she told the Tribunal that if she got an adjournment she would be able to get that evidence from her doctor and make the case that it was indeed not reasonably practicable during some or all of the relevant period for her to present an IT1. The chairman had been asked to make comments earlier but he does not deal with that point simply because it was not a live point at the time he was asked to comment.
13. What we have decided to do is to give Mrs Gardner a chance to substantiate the sort of arguments which have been put to us. We will adjourn this matter to come back, still as a preliminary hearing, but in order to substantiate her case she is going to need evidence. It is not good enough simply to deal with matters on the footing that instructions are given.
14. The subjects which we suggest that she covers by the time the matter comes back, still as a preliminary hearing, are these. First of all, as to advice she was given or advice she took or information that she was provided with, in or after, July 2000 and down to 4^th September 2000 in relation to the subject of the launch of Tribunal proceedings and the time for doing so. That is one broad heading.
15. A second would be reasons for her belief that her contract of employment subsisted at any time after July 2000 and, in particular, her reasons for thinking it was not terminated until a date in September 2000 (if indeed she did believe it was terminated at some date in September 2000). That is the second main heading.
16. The third is as to her medical condition after July 2000 and down to the 4^th December 2000. What visits did she make to her doctor, what diagnoses were made, what, if any, certificates were given, what medication was given. That is the sort of subject matter to be covered with a view to proving the quite serious degree of impairment that is necessary if it is going to be said that on medical grounds she was in a position in which it became not reasonably practicable for her to launch an IT1. After all, she did it on 4^th December 2000; why was it that she could not have done it earlier? If indeed her condition or impairment was static and continuous then the very fact she was able to do it in December 2000 would perhaps suggest that she could have done it earlier. That is the sort of logical difficulty she might find herself in.
17. That is the third main heading, and the fourth is the terms, if any, on which she sought an adjournment when she was before the Employment Tribunal on 21^st March 2001. Did she ask for an adjournment and, if so, what was the Tribunal's response? It may be that the affidavit, when it is received from Mrs Gardner, will have to be put to the chairman afresh for his comments on whether or not there was, indeed, a request for adjournment, so that the more detail she can give as to her request on that point, the better. That is the fourth and last of the headings which Mrs Gardner will need to cover.
18. We do not for a moment suggest that she cannot go beyond those headings, if she chooses to depose to other relevant matters, but those subjects, at least, must be considered. On the footing that the matter is adjourned generally for that affidavit, we simply do no more than direct that it be stood over. It can be restored when the affidavit is ready and it will take its ordinary course to come back, still as a preliminary hearing