United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For The Appellant	MR KALLIPETIS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC

1. This matter comes before us as by way of Preliminary Hearing from a decision of the Employment Tribunal sitting at London Central, extended reasons for which were promulgated on 13 October 2000. The Appellant had claimed unfair dismissal against his employers, the Post Office. He was dismissed on 14 February 2000. His Originating Application was dated 15 July 2000. That was outside the primary time limit provided for by Section 111, sub section (2) of The Employment Rights Act 1996 which provides that 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."

2. The Appellant's case before the Employment Tribunal was, as they record at paragraph two of the reasons, that the Appellant had been advised by solicitors to await the outcome of criminal proceedings which were extant against him before he concerned himself with his claim for unfair dismissal. The advice of a professional is not a permissible basis for this court to say that it was not reasonably practicable for him to have submitted his claim within the three month period.
3. In his Notice of Appeal to us a rather different ground is put forward. This is that the Appellant had inadequate judgment and mental incapacity due to prescribed medication and was unable to appreciate the urgency of the time limit. There had been some passing reference to severe stress causing sciatica, leading to back disc problems, in his Originating Application.
4. The difficulty that the Appellant has with that ground of appeal is two fold. Firstly, it appears that he knew of the time limit but was unable either to assess or appreciate the urgency of it. That suggests that it was reasonably practicable for him, within the statutory test, to have presented his complaints within the three month period. Moreover he had been with a solicitor throughout the relevant time, albeit a solicitor concerned with his criminal trial, at which I should record, he was acquitted. Secondly, that ground does not appear to have been argued before the Tribunal and therefore this Appellant faces all the difficulties of persuading us that we should permit a basis to be argued before this court which was not argued, it appears, before the Tribunal. We see no reason to disturb the general principle that that is not allowable.
5. For the Appellant, Mr Kallipetis has said everything that could be said. He has appeared under the ELAAS scheme and as usual has identified the only point which might be capable of argument. That is, that the three month period itself offends the principles in the European Convention of Human Rights. There are difficulties, we think, with that argument. It was not argued below. Nonetheless, if one were to consider it, we think that, in the context of unfair dismissal it is a matter of importance that there be a quick trial, because one of the remedies which is open to the dismissed employee is re-instatement or re-engagement which, if it is to be effective, must occur within a short period of time following dismissal. Secondly, the fact of dismissal is almost universally known to the dismissed employee and it is usually apparent whether there is any basis for thinking that the dismissal is in any way unfair or has been effected by procedure which is unfair. So, unlike some time limits, in which it may be unclear whether a wrong has been done or not, there could be no doubt in the usual case of unfair dismissal. Thirdly, and perhaps most importantly, there is an escape clause in the, 'not reasonably practicable test'.
6. Bearing in mind that Article 6 is bilateral in the sense that it must ensure a fair trial, not only to a disappointed party but to the other party and bearing in mind that within its terms it emphasises the need for expedition, we do not consider that the three month time limit point is sufficiently arguable for this matter to go forward to a Full Hearing. For those reasons we do not see in this case any arguable point of law.
7. We should express our gratitude to Mr Kallipetis, not only for his realistic submissions, but also for doing that which, we would hope, any concerned representative would, and that is seeing whether the erstwhile employers of the Appellant may be prepared to provide a reference in sufficient terms to indicate, at least, that the Appellant was acquitted of criminal charges implying dishonesty in the events that led to his departure from the Post Office, and that because he was facing criminal charges his own evidence as to the circumstances in which he came to be dismissed was never fully heard and determined before any Tribunal. That we think is the most that Mr White could have expected and we are grateful to Mr Kallipetis for that. This appeal must be dismissed.