London International College v Sen [1991] UKEAT 344_91_0612

EAT
London International College v Sen
[1991] UKEAT 344_91_0612 · 1991-12-06
MR JUSTICE KNOX : London International College appeals from the unanimous decision of the London (North) Industrial Tribunal sitting on 5 December 1990, that it had jurisdiction to hear the claim of the applicant before it Dr Sen, for unfair dismissal. We are only concerned with the preliminary point as to jurisdiction. That decision of the Industrial Tribunal was sent to the parties on 4 January 1991.The issue turns on Section 67(2) of the Employment Protection (Consolidation) Act 1978 which contains the provision for time limits for claims for unfair dismissal. It reads:
"Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or 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 the period of three months."
Subsection (4) has no relevance to this particular application. The effective date of termination is not in dispute, it was 9 July 1990 and it was recognised by the Industrial Tribunal that that meant that there was until the end of the 8 October only available for presenting the Originating Application in time. In fact the Originating Application was presented one day late on 9 October 1990.The facts found by the Industrial Tribunal apart from those dates which I have already given are as follows: first of all that the applicant knew that there was a three month time limit. Secondly that during the period between his dismissal on 9 July 1990 and the presentation of the Originating Application, he used internal appellate procedures and investigated both his and other employees' dismissals by the Respondents. The critical facts are stated as follows:
"He (that is of course the applicant), became aware of the exact time limit for bringing a claim so he thought, approximately a week prior to the date he submitted his application. He had contacted a solicitor to ask for advice on the time limit and was told that he should submit his application on or before 9 October. At about the same time he also contacted the Central Office to check the time limit and was told by a member of staff that it was the 10th or possibly the 9th of October. He told us that he informed the Tribunal member of staff that his date of dismissal was 9 July."
The Industrial Tribunal found, as a fact, that they accepted that evidence given by the applicant and that of course was very fairly recognised by Mr Nicholls on behalf of London International College as being a finding of fact that is binding on the Appellant here.Finally, the Industrial Tribunal on the factual side said this:
"As a result of erroneous advice he completed his Originating Application, dated it 9 October..."
and in effect presented it that day.This is therefore one of those not altogether infrequent cases where the question of the last day of the three month period has led to not only one but two sets of erroneous advice. It is clear enough from the statement of facts that not only the advice given by the solicitor whom the applicant consulted, but also the advice given by the Tribunal member of staff was wrong in identifying the 9 October as a possible day for presentation of the Originating Application in time.The Industrial Tribunal discovered the then recently decided case of JEAN SORELLE LTD v RYBAK at that stage only reported in the Times newspaper but since then reported in 1991 ICR 127 and said in its decision that it was guided by that decision and in particular by what was held there that there was a clear factual difference between advice given by a member of Industrial Tribunal staff and that of a solicitor and that it was open to an Industrial Tribunal to hold that it was not reasonably practicable for the complainant to have presented his or her complaint in time and the Industrial Tribunal followed that decision and came to the same conclusion of fact that it was not reasonably practical for the applicant to have made his complaint in time.JEAN SORELLE LTD v RYBAK had not been the subject of argument before the Tribunal and an application was made perfectly properly on 5 December 1990 for a review. That application was buttressed by the same short point which has been eloquently put to us. It is put in writing in the application for a review in these terms:
"In the reported case [that is a reference to the JEAN SORELLE LTD v RYBAK case] the Applicant reasonably relied on the advice on the Tribunal Clerk and on no other skilled third party. In the case in question, however, the Applicant consulted solicitors. At the moment he consulted them they owed him a duty of care to get the final dates for presenting the Originating Application right. If they failed to do so, then the Applicant has a claim against the solicitors. At that moment, however, it became reasonably practicable to submit the Originating Application in time which the Applicant failed to do.."
and there is a reference to RILEY v TESCO STORES [1980] ICR 323 .
"The erroneous advice given at a later stage by the Tribunal Clerk was irrelevant and we would argue that the Tribunal does not have jurisdiction to hear the Applicant's claim for unfair dismissal.
That last sentence, states in a nutshell the point that has been put to us namely that as soon as a solicitor is consulted it necessarily becomes reasonably practicable for the person who seeks advice from a solicitor to present the application in time and that that is a state of affairs which cannot be undone at any rate so far as mental elements in the case are concerned. It was accepted very properly of course, that there could be supervening physical events whereby an applicant was disabled from physically making an Originating Application effective; for example an accident that landed him in hospital and no doubt others could be put. But one can safely disregard that aspect of the matter.The essence of the proposition is that the mere fact of consulting a solicitor renders it reasonably practicable to present the Originating Application in time. We were referred as the Application for Review did, to RILEY v TESCO STORES supra at page 335 of which Waller LJ said this:
"Once a man knows of his right it is more difficult to say that it was not practicable to give notice within a reasonable time. If he reasonably does not discover his right until a short time before the last days of the three months have elapsed, then obviously it would probably not be reasonably practicable to give notice in time."
That was a case where advice was taken from the Citizens Advice Bureau which proved to be inaccurate and the Court of Appeal held that the question - whether it was reasonably practicable to present a complaint in time - was a question of fact for the Industrial Tribunal. And in that case the Industrial Tribunal had been entitled on the evidence to conclude that it was indeed reasonably practicable for the employee to have presented her complaint in time. She got, as I have said, bad advice on that score from the Citizens Advice Bureau. It had long been settled that if all that happens is that an applicant takes professional advice on his own behalf, typically of a solicitor or Counsel, and that proves to be erroneous, it is not open to such a person to hide behind the bad advice given by such professional adviser and RILEY v TESCO STORES pointed out that it was not the skill of the adviser that mattered in that conclusion but on the fact that it was not right for an applicant to be able to shelter behind his own agent's fault.The distinction drawn in the JEAN SORELLE LTD v RYBAK case between on the one hand the agent, be he a professional as in the solicitor case or a voluntary agency as in the Citizens Advice Bureau on the one hand and the Officer of the Industrial Tribunal was not attacked by Mr Nicholls before us and we therefore proceed on the basis that there is that significant distinction to be drawn between the two.The other authority to which reference was made in the course of the argument was PALMER v SOUTHEND-ON-SEA BOROUGH COUNCIL [1984] ICR 372 at page 385 of which May LJ giving the judgment of the Court of Appeal, said having reviewed earlier authorities:
"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an industrial tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the industrial tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the tribunal may have to consider whether there has been any mis-representation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisers' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the industrial tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account."
Mr Nicholls relied on the reference to "any material time" in relation to the investigation whether or not the employee was being advised and he pointed to the fact that that contemplates an investigation throughout the period so that early advice can be certainly of very great significance.At the end of the day, in our judgment, the only issue of law that is thrown up by Mr Nicholl's argument is whether it is a correct conclusion that of necessity the taking of advice from a solicitor makes it then and thereafter, absent any physical supervening circumstances, reasonably practicable to present the application in time. We are not satisfied that there is any such legal rule or conclusion to be drawn. In our view the question in every case is a question of fact. Obviously the taking of advice from a professional adviser is a most material circumstance to consider but we adopt what was identified as a matter of very great significance by May LJ in the passage I have read from the PALMER decision, that one of the matters for investigation was that substantial cause of the employee's failure to comply with the statutory time limit. In this case it is clear from the facts that have been found by the Industrial Tribunal that the two pieces of advice about the actual time limit that were obtained by the applicant were obtained very close one after the other in point of time because the Industrial Tribunal says of the second lot of advice:

"At about the same time.."

and secondly, that the second lot of advice from the member of staff of the central office, was obtained in order to check the time limit about which erroneous advice had been given from the solicitor. The Industrial Tribunal in our view was entitled to put all those factors into the scale and to arrive at the conclusion which, as we read the decision they did, that the substantial cause for the failure to be in time was as a matter of fact, what was said by the member of staff from the central office and once one arrives at that conclusion it does open the door in our view to a finding by the Industrial Tribunal that it was not reasonable practicable to present the complaint in time. On that basis we dismiss the Appeal.