United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE MAURICE KAY:

1. This is the adjourned preliminary hearing of Mr Jones' appeal against a decision of an Employment Tribunal which ruled that his claim for unfair dismissal was out of time, by reference to the provisions of section 111 of the Employment Rights Act 1996.
2. When the matter first came before the Employment Appeal Tribunal and today, Mr Jones had the benefit of representation by Mr Horan under the ELAAS Scheme. When the matter first came before our colleagues Mr Horan sought and obtained an adjournment. The matter now comes back to us after the material, which Mr Horan was anxious to place before the Tribunal, had been bespoken.
3. The Notice of Appeal contains three grounds of appeal, expressed in the following way:

"The Tribunal erred in law in holding that the application was lodged out of time.

The Tribunal erred in law by failing to find that it was not reasonably practicable for the appellant to have presented his claim within the three month period.

The Tribunal had evidence before it in relation to the fact that it was not reasonably practicable to present the claim within the original 3 months period but chose to ignore that evidence."

4. Realistically, Mr Horan abandoned the first two points at the last hearing. He wished to pursue the third point on the basis of instructions received from Mr Jones which were to the effect that the Employment Tribunal had ignored some important evidence as to whether or not it had been reasonably practicable to present the claim within the three month period.
5. In the light of those instructions the Appeal Tribunal on the last occasion ordered Mr Jones to swear and file an affidavit and directed that the Chairman of the Employment Tribunal be invited to comment upon it. Mr Jones has now sworn an affidavit. It is at pages 23 to 24 of our bundle. In it he sets out a factual history which would be capable, if correct on the subject of evidence, of supporting serious consideration of the question whether it had been reasonably practicable to present the claim within the three months. Mr Jones concludes that account by saying:

"I can honestly say that at the Tribunal I did make these points to the Tribunal although they themselves concentrated on Case Law and looking at whether or not I was within the time limit. When asked at the end of the Tribunal if I had anything further to add on why it had not been reasonably practicable for me to apply for unfair dismissal within the time limit, I did not add anything as I felt I had already covered all of these matters and therefore the evidence was already before the Tribunal to assist it in reaching a decision."

6. The affidavit was then sent to the Chairman of the Employment Tribunal and we have both his notes of evidence and his comments on the affidavit. We do not propose to set them out in full because of the way in which events this morning have developed.
7. Mr Horan is faced with one difficulty today in that, although he is instructed in the matter still under the ELAAS Scheme, he does not have the benefit of Mr Jones' presence. Mr Horan, with great helpfulness and responsibility, has identified this as a case in which the affidavit of the Appellant and the notes and comments of the Chairman are in conflict. What Mr Jones says in his affidavit is not borne out by the notes of evidence and is, in a significant way, contradicted by the comments of the Chairman.
8. The law in those circumstances is clear. It is set out in Harvey on Industrial Relations and Employment Law, Volume 5, paragraph T 1551 to 1552, in these terms:

"The position therefore is that if the parties cannot agree between themselves upon the accuracy or inaccuracy of the Chairman's notes, then those notes should 'remain supreme': see Aberdeen Steak Houses Group Plc v Ibraham [1988] IRLR 420, 423."

9. Plainly if Mr Jones had been here, or if Mr Horan had otherwise been able to advise him and take his further instructions, in the light of what Mr Horan has properly told us, his advice would be that there is no basis on which this appeal can now be pursued.
10. In the absence of Mr Jones and any instructions from him and given the lack of facility for Mr Horan to advise Mr Jones further, Mr Horan has submitted that there is a basis upon which this matter can proceed, although he has confessed that in reality he cannot identify an arguable point.
11. In all those circumstances, we take the view that Mr Horan's confession is completely correct and the consequences are that there is, in reality, no arguable point that can proceed beyond this stage. It follows that we must now dismiss this appeal.
12. The Appeal Tribunal is very grateful to Mr Horan for his assistance in this case and for the frank and proper way in which he approached it.