United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF APPELLANT


 


JUDGE McMULLEN QC

1. This appeal concerns the time limit for the presentation of claims for unfair dismissal and the Tribunal's exercise of its power to allow an amendment of a claim for sex discrimination. The appeal arises from a decision of an Employment Tribunal sitting at London South on 12 September 2002, Chairman Ms C E Taylor promulgated on 25 September 2002.
2. The Applicant was represented by her husband, the Respondent by a consultant. The Applicant had made a claim for unfair dismissal and she sought permission to raise a claim of sex discrimination. The preliminary hearing had been convened to decide whether the Originating Application had been presented in time. Today the Applicant is content to rely upon written submissions to us in respect of her appeal and these are contained in a skeleton argument for which we are grateful, having read it.

The time limit point

3. The Preliminary Hearing had been convened to decide the time point as contained in Section 111(2) of the Employment Rights Act, Section 23(2) of the Employment Rights Act, Article 7 of the Employment Tribunals Extension Jurisdiction Order 1994 and Regulation 30(2) of the Working Time Regulations 1998. These all relate to a three month time period. The separate provision under the Sex Discrimination Act relating to what is a just and equitable reason for extending time was also in play but primarily the issue concerned the three month time period and whether it was reasonably practicable to present a claim and if not whether it was reasonable in the time thereafter for the claim to be submitted.
4. The Applicant was employed as the academic director of the London campus of the Respondent. She had been dismissed and following her dismissal on 26 February 2002 she travelled to Australia. She was aware of the three month time limit for presentation of the claim and her understanding was that presentation meant putting it into a post box. The Applicant presented an Originating Application on 27 May 2002. It should have been presented on or before 25 May 2002. That is a Saturday.
5. The Tribunal found that the Applicant had put her Originating Application in the post box at Chippenham Wiltshire on 24 May 2002. It made four significant findings:

(1) It rejected the evidence of the Applicant that she had done so on 23 May.

(2) It accepted her evidence that the post office at Chippenham is efficient and effective and that previously the Applicant had praised it.

(3) It found that the letter had been posted at 5.20 pm on 24 May by reference to the documentary material, principally the post stamp.

(4) The Originating Application had been received on 27 May at the Employment Tribunal which was within the normal expectation not only of the Applicant but of the postal system itself and by reference to the CPR.

6. The Tribunal was guided by the judgment of the Court of Appeal in Consignia Plc v Sealey [2002] ICR 1193 CA at paragraph 31 per Brooke LJ who gave guidance on precisely the same timing issues as occurred in this case. He said this:

"(3) If a complainant chooses to present a complaint by sending it by post, presentation will be assumed to have been affected, unless the contrary is proved, at the time when the letter would have been delivered in the ordinary course of post: see by analogy, section 7 of the Interpretation Act 1978.

(4) If the letter is sent by first class post, it is now legitimate to adapt the approach contained in CPR r6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, bank holidays, Christmas Day and Good Friday, being days when post is not normally delivered).

(5) If the letter does not arrive at the time when it would be expected to arrive in the ordinary course of post, but is unexpectedly delayed, a tribunal may conclude that it was not reasonably practicable for the complaint to be presented within the prescribed period.

(6) If a form is date-stamped on a Monday by a tribunal office so as to be outside at three-month period which ends on the Saturday or Sunday, it will be open to a tribunal to find as a fact that it was posted by first class post not later than the Thursday and arrived on the Saturday, alternatively to extend time as a matter of discretion if satisfied that the letter was posted by first class post not later than the Thursday."

7. As a direct application of that judgment the facts in this case as found by the Tribunal are significant. The Tribunal therefore held correctly in our view that the Originating Application was presented two days late. It noted that the Applicant had been aware of the time period, that she is herself an academic and married to a lecturer in law, and that after Australia she still had plenty of time to present the Originating Application. It plainly did not accept her evidence that she had posted it on 23 May. We see no error of law in that finding. It therefore held that it was reasonably practicable for it to be presented in time.

The amendment point

8. We now turn to the application to amend the Originating Application to include a claim of sex discrimination. It is not part of the Notice of Appeal. The Applicant is not here. The simple course will be for us to dismiss it since it is not raised. However, in order not to leave this matter with any doubt in the mind of the Applicant we will deal with it on the basis that the issue is properly before us, which it is not.
9. As a result of the Tribunal's first decision there was no valid Originating Application and so there was nothing to amend. The decision of the Tribunal was that the Applicant would have to present a new Originating Application. There was nothing of sex discrimination in the Originating Application and the Tribunal correctly held that this was a new complaint. The refusal therefore to amend the Originating Application was correctly made. We can see no reason for overturning its decision either as a matter of substance, that is that the matter was a new claim, or as a matter of fault, that is that this was an attempt to amend a defunct Originating Application. The Tribunal found no grounds advanced by the Applicant for exercising its discretion on the basis of what is just and equitable to allow either a new claim or an amendment. The Applicant even now has not presented grounds upon which the Tribunal could properly form a view as to whether or not it should exercise its discretion. In our judgment it cannot be faulted. The appeal is dismissed.