Dunn v Woolworth Plc [1993] UKEAT 191_92_1802

EAT

Dunn v Woolworth Plc

[1993] UKEAT 191_92_1802 · 1993-02-18

MR JUSTICE MAY: This is a preliminary hearing of Mr Dunn's appeal against a finding of the Industrial Tribunal at Bristol that his complaint against the Respondent, Woolworth plc, for unfair dismissal was out of time and accordingly could not be entertained. Mr Dunn was a long serving member of Woolworths. He was dismissed on the 16th November 1990 for essentially two alleged reasons. The first one concerned alleged under-charging of customers for goods sold to staff. The second involved his being in possession of a computer which belonged to Woolworths and had not been paid for.

There were two other people who were dismissed at the same time and they, along with Mr Dunn, were involved in criminal proceedings relating to theft alleged in relation to the computer. The other two people either pleaded guilty or were found guilty. Mr Dunn stood his trial and was acquitted. He was acquitted in July 1991.

The application before the Industrial Tribunal was made for him by solicitors and was received by the Tribunal on the 2nd August 1991, that is to say, pretty shortly after his acquittal in the Crown Court. It was, however, well out of time. Section 67(2) of the Employment Protection (Consolidation) Act 1978 provides that:

"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."

The relevant three month period in this case came to an end in the middle of February 1991 and, as I have said, the application was not made until the 2nd August 1991. What happened relevantly in the intervening period was that in relation to the criminal proceedings against the other two people Mr Dunn's solicitors got hold of witness statements made by one of the other people, firstly on the 18th March and secondly, in May 1991. Those witness statements contain passages which had a bearing on the question whether Mr Dunn was or was not responsible for impropriety in regard to the computer and, I repeat of course, that eventually in July Mr Dunn was acquitted and exonerated of theft.

When the matter came before the Industrial Tribunal they considered, firstly, whether his application was in time, within the 3 months, and plainly it was not. They secondly considered whether it had been reasonably practicable for the complaint to be made within that period. They considered that carefully by reference to the receipt by his solicitors of the statements from the other persons and the date when they were received, and they came to the conclusion that those statements did not seem to have a great significance on the practicability of bringing Mr Dunn's proceedings before the Industrial Tribunal within the 3 month period. It was of course urged on his behalf that these statements made a great deal of difference and that it was not until the statements were received that he was really in a position to know that he could bring his proceedings for unfair dismissal. Having then made that decision the Tribunal then went on to deal with two other points. One of these was not adverse to Mr Dunn. The other was whether the further period between February and August 1991 was a reasonable period within which to bring the proceedings. Having considered that matter and referred themselves to the relevant section of the Act of Parliament the Industrial Tribunal said this:

"while no doubt the Applicant had other things on his mind, the additional time before the application was brought was not, in our view, reasonable."

Accordingly, the Tribunal dismissed his application on the grounds that it was not brought within the statutory time limit.

It is against that decision that Mr Dunn seeks to appeal and in his grounds for appeal he sets out a number of facts, which we have carefully considered, referable not so much to the time issue with which we have to be concerned, but referable to the substance of the case that he would make that his dismissal was unfair. He refers in relation to the alleged under-charging to the fact that Woolworths had no price structure, only a guide, and that there was no particular sum of money which ought to be charged for the goods in question. He makes points in relation to his possession of the computer and, of course, we know now that he has been acquitted of allegations in relation to that. He refers to the statement of the other person to which I have already referred. In conclusion in his Notice of Appeal he says:

"I feel that Woolworths did not act in a responsible and reasonable manner bearing in mind that they were in full possession of all the relevant statements."

Those grounds, of course, are not directly in point as to the bringing of his complaint within the time limit, which is the only matter with which the Industrial Tribunal, and indeed this appeal, could be concerned.

Mr Dunn has told us this morning firstly about the obtaining of the statements. He has also told us that at the very outset he was advised by a solicitor but that initially that obviously was to do the criminal allegations that were being made against him and not essentially in relation to this application. He does, however, tell us that it was on the 21st March 1991 or thereabouts that he was put in direct contact with a member of that firm of solicitors who dealt with employment law and that he did then receive advice in relation to the possibility of bringing this complaint. He did not in fact do so. It was already outside the three month time limit at that stage. He then goes on to tell us that the matter was concluded in the Crown Court and the barrister who was dealing with his case there advised him, in effect, to have a go. It was accordingly as a result of that that the complaint was made on the 2nd August.

It is important to bear in mind that this Appeal Tribunal is concerned with questions of law and that what we have to ask ourselves is whether there is any reasonable argument in law that the Industrial Tribunal's decision that this was a complaint out of time was wrong.

We have to observe that the statutory provision is that the industrial tribunal shall not consider a complaint unless it is brought within 3 months or within such further period as the tribunal considers reasonable. That confers on the industrial tribunal at first instance a discretion to consider whether or not the time within which this complaint was brought was, in their view, reasonable. The law is that the Employment Appeal Tribunal will only interfere with an industrial tribunal's exercise of discretion if it is exercised on wrong principles or if it is plainly perverse.

We have considered very carefully, and with a deal of sympathy for Mr Dunn's predicament, whether there is any reasonable argument that this was a discretion exercised on wrong principle or that it was perverse and we have come to the conclusion that it is not possible so to argue. The Tribunal in the end came to the conclusion that the time between November and August on the one hand, or perhaps more particularly, between March and August on the other was so great that they did not consider that it was reasonable to extend Mr Dunn's time.

Whatever the personal views of this Tribunal may be, and as we say, we have sympathy with Mr Dunn's predicament we are constrained to decide that there is no reasonably arguable point of law that this decision was wrong. It follows that we have to dismiss Mr Dunn's appeal.