United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr A Nicholson, Solicitor Of- Messrs McGrigors Solicitors Pacific House 70 Wellington Street GLASGOW G2 6SB
For the Respondent	Mr D Purdie, Solicitor Of- Messrs George Mathers & Co Solicitors 23 Adelphi ABERDEEN AB11 5BL

SUMMARY
TIME LIMITS

Reasonable practicability

Employment Tribunal did not make an express finding as to the apparent explanation by A that he did post the Originating Application claiming unfair dismissal midway through the three months, but addressed an explanation which appeared inconsistent with such case, and which was seemingly not the case he advanced, that he was physically and/or mentally incapable – and without any particularisation of how that was relevant to reasonable practicability. Appeal allowed and remitted to different Tribunal.


 


THE HONOURABLE MR JUSTICE BURTON (P):

1. This has been the hearing of an appeal by the Respondent, Royal Mail, from the unanimous decision of the Employment Tribunal in Aberdeen, on 17 June 2004. The Applicant, Mr Smith, was employed by the Respondent until he wrote a letter of resignation dated 30 August 2003. There is some issue raised, at any rate by the Applicant, which the Tribunal below accepted was, at least possibly, arguable, as to when the employment terminated: namely, whether it was 12 or 16 September 2003.
2. He asserted, and seeks to assert, that his resignation in fact amounted to a constructive dismissal, and an application to the Employment Tribunal was received by the Employment Tribunal on 19 December 2003 which in fact was defective, because it did not contain any indication of the complaint he was making. Treating that application as defective, rather than invalid, at that stage, the Tribunal allowed the Applicant to complete Box 1, and the completed application form was received back by the Tribunal, it seems, in about February 2004, containing the words "constructive dismissal due to harassment".
3. Ignoring the February redelivery of the application and concentrating on the 19 December, the application was out of time. An explanation was sought by the Appellant (the Respondent below), by letter dated 24 May 2004 sent to the Applicant, of his delay and by an undated letter in response to that letter, presumably sent at some stage in May, he wrote as follows:-

"Further to your letter which I received this morning I must inform you that the delay in submitting the forms for process was due to an error in filling out the form and therefore it was delayed whilst amendments were made and the forms were resubmitted, I apologise if there is any inconvenience caused due to this error."

4. It is quite plain that that is an explanation for his initial sending in of the defective notice, and the delay caused by the substitution of a corrected and completed application in the February 2004, and does not address, in any way, the delay prior to 19 December 2003.
5. An application for unfair dismissal must be presented to the Employment Tribunal within three months of the termination of the employment. By reference to the later of the two dates, which were left open by the Employment Tribunal itself, that meant that the application was, on any basis, 3 days late, and the Tribunal, indeed, found that it was late by either 3 or 7 days.
6. The test for an extension of time for the presentation of an unfair dismissal application, which is out of time, is not a straightforward one. It does not depend, as do applications for an extension in relation to claims for discrimination, upon a finding of fairness and justice and equity, which might allow the putting forward of various possible explanations or excuses by an applicant. An extension of time for a delayed application for unfair dismissal requires proof by the Applicant that it was not reasonably practicable for him or her to present the application within the three-month period.
7. That means what it says, as has been examined in a number of cases, both by this Appeal Tribunal, and by the Court of Appeal, in two regards. The first is that an applicant must show that it is not reasonably practicable to have lodged the application, and that does not, therefore, simply mean, for example, delay caused by the unavailability of legal advice, or union support or finance, or some kind of business or family reasons, which caused the priority to be attached to the lodging of an application to move lower down the scale, so far as the applicant is concerned. The kind of explanations which require to be given involve, although, of course, are not limited to, the following: being out of the country, or being seriously ill, in such a way as not to be able either physically or mentally to deal with the lodging of an application, within what is in fact a relatively generous timescale.
8. Secondly, this relates to the entire period of the three months. Of course no one is expected to walk straight out of employment and lodge an application to the Employment Tribunal. The fact that an applicant has three months is in fact intended, no doubt, to encourage consideration as to whether it is appropriate to lodge an application, and whether such application is likely to be supported by evidence, on mature reflection. It is also clear that a tribunal considering a failure to lodge an application within three months may well look more sympathetically at excuses or explanations in relation to the latter part of the period; for example, where there is a very good reason for not having lodged the application in the first 2½ months or so, then some emergency arising in the last 2 weeks may be more significant. But if the emergency has arisen in the last 2 weeks, but there was no reason why the application could not have been lodged at an earlier period, then that last-minute emergency will be less significant. The case of Schultz v Esso Petroleum Co Ltd [1999] IRLR 488 makes it clear that, although it is appropriate for the Tribunal to look with close concern at the period of time at the end of an application, it is nevertheless the whole of the period which is to be relevant.
9. It is, therefore, not easy to qualify for an extension, and the courts and tribunals are primarily concerned to ensure that the remedy of unfair dismissal is dealt with speedily and within the three-month period, if at all possible. Even being one day late can rule out an applicant unless there is a very good explanation. This Applicant was out of time by more than that.
10. The explanation, it appears, that was given by the Applicant to the Tribunal - and, we have been told by Mr Nicholson, the Appellant's solicitor, who appeared before the Tribunal, that he did so on oath - was that he did post the application, which was dated 11 November 2003, but arrived on 19 December 2003, at some stage on or about 11 November 2003. Of course the Appellant's case cannot rest on the fact of the 11 November date. It could be either that it was dated 11 November in November but was not, in fact, posted then, or that it was sent subsequently but it was backdated to 11 November. The existence of the date on the application form is no more conclusive than is the counter-assertion that a delay in the post of 6 or 7 weeks is extremely unusual. At the end of the day, the matter must rest upon a conclusion by the Tribunal.
11. It nevertheless requires some explanation, if the Appellant's case was, indeed, that the application was posted on 11 November, arising out of its non-arrival until 19 December. That case was explored by the Appellant, by reference to documents which we have in our bundle. If, in fact, it was being asserted - although there was no evidence, by way of postmark on an envelope or otherwise, to establish the position, at any rate, apparently before the Tribunal - that the document was posted on 11 November, and had somewhat surprisingly taken 6 weeks to arrive, then the Applicant would have to explain why he had not followed up the application, and checked whether it had arrived, and found that it had not. The Applicant accepted that he had received from the Employment Tribunal, and/or from his Union, explanatory documents giving guidance on how to put in an Employment Tribunal application, at least one of which, being the printed booklet in our bundle, contained, at page 10, the following words: "If you have not heard from [the Tribunal Office] within a week of sending in your application you should enquire if it has been received."
12. That cross-examination, intended, no doubt, to discredit the Applicant's evidence, is all we know of the point, apart from the documents in the bundle. But that was, it seems, the only basis upon which the Applicant was seeking at the Tribunal to justify the delay, namely that in practice he had done all that was necessary by posting the document on 11 November or about that date; and that was how there had come to be a delay, he should be forgiven because he had done all that was reasonably practicable by posting and everything else was down to the delay of the mail, which, as it happens, was a responsibility of his employer.
13. The Tribunal's decision, in those circumstances, is more than surprising. In particular, it does not make a finding as to whether or not, in terms, it accepts the evidence by the Applicant that he did post on 11 November. Our assumption from reading the judgment is in fact that the Tribunal made a finding that it did not accept that he posted the document on 11 November; but, at the very least, it is regrettably ambiguous and very much less clear and well reasoned than one would expect a Tribunal decision to be. It may be that the Tribunal was affected by sympathy for the Applicant, but sympathy is not a substitute for a properly reasoned decision, certainly not where there is a heavy onus on an Applicant, who is out of time, irrespective of the merits of the alleged constructive dismissal claim, which, of course, have not been canvassed.
14. The Tribunal stated as follows:-

"2. We found the following facts to have been established:-

1. The applicant began employment with the respondent in June 1996. …

2. The respondent then wrote to the applicant indicating that his resignation had been accepted …

3. An IT1 dated 11 November 2003 but not date stamped as having been received by the Tribunal office until 19 December 2003 was lodged. This was returned to the applicant to allow him to enter the type of complaint he was making.

4. On the return to the Tribunal office a copy was sent to the respondent. An IT3 dated 26 or 30 March 2004 was lodged.

5. Subsequent to leaving employment the applicant suffered from depression and was prescribed heavy medication. He also suffered from a physical ailment which required the use of a crutch.

3. In all the circumstances we accepted that the application was late by either three or seven days. We also accepted that the ill health suffered by the applicant rendered it impracticable on a reasonable basis for the IT1 to have been lodged timeously."

15. As we have indicated, we are left in a state of ignorance and uncertainty, as a result of that Tribunal judgment, which is heavily criticised by the solicitor for the Appellant, and not surprisingly, though with reluctance, not sought to be supported by Mr Purdie, the solicitor instructed by the Applicant.
16. We have already indicated that there is no finding by the Tribunal as to whether the IT1 was, in fact, sent on 11 November 2003. There is no finding either that it was, or that it was not, sent, nor any reasons given for any such finding, if it were made. We have also indicated that there was no finding by the Tribunal as to whether it accepts, or what findings it makes in relation to, the failure, if such there was, by the Applicant, to follow up the sending of the letter, if that is what occurred.
17. As we have said it appears to us, on balance, that the Tribunal was, in fact, finding that the letter was not sent on 11 November 2003 but that, in the alternative, the Tribunal was relying upon a reason which does not appear to have been put forward by the Applicant at all. Mr Nicholson, who appeared below, as we have indicated, on the part of the Appellant, does not recall the circumstances, if any, of the mention of the medication, but does recall that reference to the crutch arose because the Applicant had a crutch with him on the day of the hearing, which was 17 June 2004, many, many months after the material time, and that he apparently explained that he was unable to rise to his feet when the Tribunal left the room, because he had damaged his ankle. It was certainly not put forward as an explanation as to why there was any delay in the posting of the letter, if there was any, which of course he did not accept there had been, because his case was that he had not delayed and had posted the application in time. We must, quite plainly, ignore the quite unnecessary reference, in those circumstances, to the crutch, which is of no materiality whatever.
18. There is, however, as we have indicated, mention by the Tribunal, in unexplained circumstances, of depression and medication. If that was to be of any relevance at all:

18.1 It would need to have been relied upon by the Applicant as part of his reasoning for it not having been reasonably practicable for the application to have been put in in time.

18.2 The nature, both of the depression and the medication, would have to have been explained, so that at least it could have been inferred, if not proved, that, as a result of that depression and/or medication, he was unable to deal with his affairs, including the presenting of an application: when, of course, in fact he was asserting that he had been in a position to do so by posting the application, which he asserted he had done.

18.3 There would need to have been an addressing of the question as to whether that depression and/or medication, if provably relevant, lasted for the whole of the three-month period or, at any rate, a material part of it.

19. We have indicated that we are completely unassisted by the judgment and, for the reasons we have made clear, we must, therefore, allow this appeal. The issue is as to whether it should be remitted to a different Tribunal (neither party suggesting it should go back to the same Tribunal) for a rehearing of the case. This is a question which has caused us considerable anxiety.
20. On the face of it, there was a finding that the application was not posted on 11 November 2003, not cross-appealed by the Applicant. If, therefore, there was no posting on or about 11 November, and if the case put forward as to medication, and/or the crutch, is of no substance whatever, and could not possibly provide an explanation sufficient to justify non-presentation of the IT1 throughout the three-month period - particularly against the background that the Applicant himself was asserting that he had posted the application - then it would have appeared quite pointless to remit this to another tribunal. Such tribunal would find - the application not having been posted on 11 November, contrary to the Applicant's assertion - that he was, on his own case, able to have dealt with his affairs, and that no extension of time could be given.
21. Equally, if in fact he did post it on 11 November 2003, and paragraph 5 of the judgment is ignored as irrelevant, then there would, as we understand it, be an overwhelmingly powerful case that it could not possibly be said to have not been reasonably practicable to have presented the application within the three months. All that was needed was an enquiry by the Applicant at some stage after 11 November of the Tribunal, to see whether the Originating Application had arrived, with plenty of time to resubmit a replacement, if in fact it had been lost in the post. The two-day posting rule can plainly have no relevance to an application sent in the middle of the period, which by a week or so afterwards could, quite plainly, have been concluded to have been lost in the post.
22. The Applicant's position has however been salvaged by Mr Purdie, in his submissions to us, and we have, with reluctance and on balance, decided to send the matter back to a different Tribunal, simply, on the basis of this possibility – we describe it as a possibility because we are conscious that we are not entitled to substitute our own decision on appeal unless we are sure that the result of sending it back to another Tribunal would be certain, or nearly certain.
23. Mr Purdie submits, although without instructions, that it is a possible reconciliation of the position that his client did post the application on 11 November and that then there was, subsequent to that, the onset of depression which prevented him from carrying on his affairs, including making enquiries as to why the application had not arrived. This is an unlikely possibility and even more unlikely is the further possibility, which Mr Purdie put forward, that there had been a similar rendering incapable of the Applicant before 11 November, as well as afterwards, with the date of 11 November itself, the day when he was fit enough to send the application which was then unfortunately delayed in the post, being one bright day out of the many when he was able to deal with his affairs.
24. Nevertheless, we have concluded that we are just about able to say that we cannot be certain as to what would occur on a resubmission to a different Tribunal. We conclude that this Applicant will have a very difficult task indeed of establishing that it was not reasonably practicable for him to have presented an application within the three-month period, and it may be that the Applicant may decide not to pursue the remitted hearing on advice and, of course, costs implications may or may not arise. But we allow this appeal and, for the reasons we have given, direct that if this application is to be pursued it must be remitted to a further hearing before a different Tribunal.