United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC

1. This is a Preliminary Hearing in an appeal against a decision of the Employment Tribunal sitting at Brighton. On 17 July 2000 Summary Reasons for that decision were given. On
   4 October 2000 Extended Reasons were promulgated. The Tribunal held as a preliminary point that the Appellant's claims of unfair dismissal were out of time and should therefore be dismissed. The contract of employment had been terminated on 8 January 1999. The Originating Application was not presented until 10 December 1999.
2. Section 111 of the Employment Rights Act 1996 provides by sub section (1) that:

"A complaint may be presented to an [employment tribunal] against an employer by any person that he was unfairly dismissed by the employer."

and at sub section (2) (missing out the irrelevant words):

"….an [employment Tribunal] shall not consider a complaint under this section unless, it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

3. Accordingly, as Mr Thacker, who appears for the Appellant under the ELAAS Scheme submitted, the Tribunal has to approach the matter in two stages. First it has to determine whether or not it was not reasonably practicable for a complaint which on the face of it is out of time to be presented before the end of the period of three months. Only if it was not reasonably practicable should it go on to the second stage which is to consider whether it has been presented within such further period as the Tribunal considers reasonable. It is for the Tribunal hearing the case to make a judgment as to what is or is not reasonable. It is sometimes the regret of this Appeal Tribunal that it cannot interfere with a decision of an Employment Tribunal because the determination of what is reasonable is for the Employment Tribunal and not for the Appeal Tribunal. It cannot be set aside unless it can be shown that there is some error of law in the exercise of the Tribunal's discretion in determining the reasonable period.
4. The facts briefly were these. The Appellant was in hospital suffering from cancer when, on 16 December 1998, he signed a document consenting to the termination of his contract of employment with effect from 8 January 1999. An indication of the severity of this illness which followed other distinct but also very serious illnesses, is given by the fact that he remained an 'in patient' until May 1999. The Employment Tribunal determined that it was not reasonably practicable for the Appellant to have submitted his application within the three months immediately succeeding 8 January 1999. Any other decision in the circumstances would have been perverse. The Employment Tribunal went on to find however, that the Appellant thereafter regained some strength and would have been fit enough to submit an application to the Tribunal subject to a further period as an 'in patient' at the end of August 1999.
5. Mr Thacker, realistically, does not seek to argue that it was not open, on this chronology, for the Tribunal to consider that the period that the Appellant had taken was longer than was reasonable. That must be so, since the Tribunal had found that he had been fit enough for a period not specified prior to the end of August 1999, and had been fit again within a few weeks of 31 August 1999, yet his claim was not presented until 10 December 1999, the Tribunal were plainly entitled to take the view from the Appellant's evidence and the circumstances I have related that the Appellant knew that he had signed some document relating to his employment, in hospital in December 1998, and was aware that his employment was not continuing.
6. Mr Thacker has focused his submission that there is an arguable case to proceed, not upon the substance of the claim, but rather upon the submission that the Tribunal failed to express itself sufficiently clearly so that the Appellant knew why it was that he had lost, and why it was that he was being held fit enough to have submitted an application to the Tribunal. What the Tribunal said in their Extended Reasons was this:

"The evidence shows that the Applicant was at home between 8 May 1999 and August 1999, regaining his strength and towards the end of that period he would have been fit enough to submit an application to the Tribunal. Also after another period of a few days in hospital, he was then discharged on 31 August 1999 and the evidence shows that within a few weeks of that date he would have been fit enough to present a claim to the Tribunal.. Given that the claim was not presented until 10 December 1999, the claim has not been presented within a reasonable period after the prescribed period of 3 months. Accordingly, the claim is out of time and must be dismissed."

7. We have to ask whether that represents a sufficient description of the reasoning to tell Mr Foote why it is that the Tribunal thought that his application was out of time. Although we, speaking for ourselves, have very considerable sympathy with Mr Foote, and although it should not be assumed that we would have exercised any discretion that we had in the same way in which this Tribunal did, we are left asking a simple question. Was enough said?
8. The issue was whether or not Mr Foote was or was not fit enough. The Tribunal decided that he was. It might have been more helpful to Mr Foote had the Tribunal said that there were certain actions that Mr Foote could do. In argument, Mr Thacker gave the examples of going to the supermarket and walking, but we do not think that it was necessary for an understanding of their reasoning that they were required to do so. The Employment Tribunal were saying, we think, on a fair reading of paragraph 6 of their Extended Reasons, that he was sufficiently fit to have put in an application within a reasonable period which would have expired before 10 December 1999.
9. Accordingly, we do not feel able to say, however we might have wished to do so, that there is here an arguable point of law which Mr Foote may take further. It follows that this appeal must be dismissed.
10. We express our gratitude to Mr Thacker for the helpful way in which he has advanced Mr Foote's appeal.