United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This appeal raises a short point on time limits. The appellants, the respondents below, are not present today on grounds of economy; instead their solicitor has forwarded a written submission under cover of a letter dated 2nd March 2001. We have considered those submissions in conjunction with the grounds set out in the Notice of Appeal and the rest of the papers before us. The applicant below, Miss Daibell, has indicated by her answer that she relies on the decision of the Chairman now under appeal; she also does not appear. We shall refer to the parties as they appeared below.

1. The applicant was employed at the respondents' public house as a bar person from February 1999 until her dismissal effective on 1st July 2000. She presented an Originating Application to the Leeds Employment Tribunal alleging unfair dismissal. The claim was resisted and came on for hearing before a Chairman, Mr J M Q Hepworth, sitting alone on 11th January 2001. That hearing was convened to determine a preliminary issue, namely, whether the claim was time-barred. Section 111(2) of the Employment Rights Act 1996 provides that an Employment Tribunal shall not consider a complaint of unfair dismissal unless it is presented to the tribunal:

(a) before the end of the period of 3 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 3 months.

2. Accordingly under that section three potential questions arise:

(1) was the Originating Application 'presented', within the meaning of Rule 1(1) of the Employment Tribunal Rules of Procedure 1993, in time?

(2) if not, has the applicant shown that it was not reasonably practicable to present it within time?

(3) if so, is the tribunal satisfied that it was presented within a reasonable time after expiry of the primary limitation period?

3. In the present case the Chairman, in a decision within extended reasons promulgated on 25th January 2001, found that the Originating Application was sent by first class post to the Employment Tribunal on Friday, 29th September 2000 and that the practice at the Leeds tribunal office in Albion House, which is closed on Saturday and Sunday, was that Saturday's post was retained in the basement of Albion House and did not go up to the tribunal office until Monday. On Monday both the Saturday and Monday post is opened and all incoming Originating Applications are date-stamped with Monday's date. In this case the 2nd October 2000. The primary limitation period in this case expired at midnight on Saturday 30th September 2000.
4. The Chairman decided that the Originating Application was presented within time. It must follow, as the respondents accept for the purpose of this appeal, that the Chairman found as a fact that the Originating Application arrived at Albion House on Saturday, 30th September 2000.
5. In this appeal against that decision the respondents accept further that if the Originating Application arrived at Albion House on 30th September, the practice of holding it over until Monday did not prevent the application being presented on that day. Lang v Devon General Ltd [1987] ICR 4, Hetton Victory Club v Swainston [1983] ICR 341 CA. The challenge is to the finding that the document in fact arrived on the Saturday, 30th September 2000.
6. It is here that the respondents' submission comes unstuck. It is based on a misunderstanding of a separate and distinct line of authority relating to a different issue.
7. Where an Originating Application is not presented within time, the second question posed by s.111(2) arises for consideration. Has the applicant shown that it was not reasonably practicable to present the complaint within time?
8. In answering that question there is a line of authority, referred to in the respondents' written submission, which allows of the possibility that where, in posting the application, the applicant had a reasonable expectation that it would, in the ordinary course of post, be delivered in time, if it is not so delivered it is open to the tribunal to find that it was not reasonably practicable to present it within time – see Birmingham Midshire's Building Society v Horton [1991] ICR 648; St Basil's Centre v McCrossan [1991] IRLR 455; Burton v Field Sons & Co Ltd [1977] ICR 106. In deciding whether the applicant had a reasonable expectation it will normally be relevant to take into account the 1985 Practice Direction in the High Court which deems delivery by First Class Post to have occurred on the second working day after posting; here Monday, 2nd October 2000.
9. From those cases the respondents seek to derive the principle that in deciding the factual question as to whether this Originating Application arrived on Saturday or Monday, the Chairman ought to have applied the presumption contained in the 1985 Practice Direction. On that basis he should have found that the application arrived out of time on the Monday.
10. In our judgment, the Chairman was right to reject that submission, as do we. The first question under s.111(2) was whether, on the balance of probabilities, the application arrived on Saturday, 30th September? There was no direct evidence as to whether it arrived on Saturday or Monday. The Chairman was satisfied that it was posted First Class on Friday. The system of mail processing at the Leeds office, and date-stamping on the Monday, was neutral as to the date on which it arrived.
11. In these circumstances he found that it was more likely than not that having posted First Class on Friday it arrived on Saturday and was therefore in time. That was a permissible finding of fact with which we shall not interfere.
12. It would only have been if, as a matter of fact, the Chairman found that the application arrived on the Monday, out of time, that the second question under s.111(2) would arise. Did the application have a reasonable expectation, posting it First Class on Friday, that it would arrive on Saturday? Then the 1985 Practice Direction would become material, as would be evidence from the Post Office as to the proportion of postal packets delivered the next working day after First Class posting.
13. However, that question did not and does not arise in this case. The appeal is dismissed. The matter will proceed to a full merits hearing as directed by the Chairman.
14. Before parting with this case, we would make one further observation. It is plainly prudent for applicants or their advisers, faced with the position that time will expire the next day, being a day when the tribunal office is not open, to fax a copy of the Originating Application to the Employment Tribunal to prevent the potential difficulty which arose in this case.