Pruden v Cunard Ellerman Ltd [1993] UKEAT 192_91_0202

EAT

Pruden v Cunard Ellerman Ltd

[1993] UKEAT 192_91_0202 · 1993-02-02

MR JUSTICE WOOD (PRESIDENT): This appeal raises a point upon the proper construction of Section 67(2) of the Employment Protection (Consolidation) Act 1978 and it raises a point which apparently has never been decided. According to the research of the Bar this is the first case of its kind.

The Applicant, Mr Pruden issued an Originating Application on the 29th November 1990. It was presented on the 30th November 1990, the next day. He complained that he had been unfairly dismissed by the Respondents, Cunard Ellerman Limited on the 31st August 1990.

The Notice of Appearance raised the issue to whether the service of the proceedings was within the provisions of Section 67(2). The Tribunal sitting at Liverpool under the Chairmanship of Mr Brown, therefore had to decide whether it had jurisdiction, that the proceedings were served in time, and secondly, whether there should be an extension of time under the remainder of the rule. There is no point taken on the latter part of the Section. The issue before us is very neat namely, whether the service of the application was still in time. The following dates are agreed.

The 31st August 1990 was the effective date of termination, the EDT. The proceedings were served on the Tribunal on the 30th November 1990. The Notice of Appearance raising the issue was the 13th December 1990. The relevant part of the Section is as follows:

"67(2). . . an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal [and here are the relevant words] before the end of the period of three months beginning with the effective date of termination " (our emphasis)

There have been some authorities which assist in the meaning of those words. They are helpfully summarised in "Harvey on Industrial Relations" and I can take the principles from there.

Where time is specified to run from a particular date, the word "date" means the whole of the period of 24 hours from midnight to midnight, and the law takes no account of a fraction of a day unless special reasons require it, that is decided in the Court of Appeal in Trow v. Ind.Coope (West Midlands) Limited [1967] 2QB at 899. Where a complaint is required to be presented within a specific period, "from", "after" or "of", a particular date that date is to be excluded from the calculation. That again, is to found in Trow v. Ind.Coope and in Goldsmith Co v. West Metropolitan Railway Co [1904] 1KB at 1, and Stewart v. Chapman [1951] 2KB at 792. However, where a complaint is required to be presented within a specified period beginning with "a particular date" that date is to be included in the calculation, and that is Trow v. Ind.Coope supra.

Those principles are well established. It is also clear that reference to a month in statutory provisions where time limits are being dealt with, means a calendar month; that it to be found in the Interpretation Act 1978, Section 5, Schedule 1.

The Tribunal decided in the present case, in paragraph 7:

"It is clear from the facts we have found that the 3 month period referred to in Section 67(2) started to run on the day of the effective termination of employment i.e. 31 August 1990 and we are satisfied that in calculating the time limit we are to use calendar months; accordingly the 3 month period expired at midnight on 29th November 1990. That of course is one day prior to the date on which the Originating Application was presented and therefore the application is out of time."

Mr Pruden appeals, and we are grateful both to Mr Kidd and Mr Giffin on this appeal for the helpful way they presented the various arguments.

Mr Giffin seeks to uphold the decision of the Tribunal in the following way. He submits on the previous authorities, that, of course, the EDT date is to be included whereas it might have been excluded. If it was excluded one would taken the date of the EDT and go forward three months. He submits that only the EDT is relevant in the wording of the subsection because nothing else has happened on any other day, it is that day upon which one must concentrate one's attention. If in fact one was to look for instance at the day before then there would be an unnecessary emphasis on that day and he submits that the corresponding date is calculated by looking at the EDT, going forward three months, and then going back one day. Therefore, in the present case, he submits, the Industrial Tribunal were perfectly correct in going forward to the 31st November, which did not exist, therefore one takes the last day of November the 30th, and deduct a day, and the relevant date is the 29th November, therefore the Tribunal were correct. I hope that we summarise his submissions clearly in that way.

The argument to the contrary is this, that one is looking at a period of three months beginning with the effective date of termination. That date is included in the three months and therefore, if one were to ask the question, what is the last moment by which I must serve my proceedings? It is the end of the day before the effective date of termination, but three months hence.

It seems to us, therefore, that the calculation starts with the identification of the relevant day and date upon which in three months time time would run out. If one looks at it in that way the understanding, in our judgment, is far simpler. May we take examples? If a dismissal takes place and the EDT is on the 31st of a month during one of the seven months of the year then the relevant date will be the 30th; one then goes forward three months and in eleven months out of the year there is no problem because there is a 30th. Likewise, if the EDT is on the 30th of the month, then the relevant date is a 29th, and again there is no problem. The only anomaly to that simple approach is if the EDT is on the 30th November or the 1st December of any one year, because in those events one is looking for either the 29th November or the 30th November, as the case may be, and there will not be a 29th, save in leap year, or a 30th, in any event, in February. In either of those cases therefore it is quite simple that one takes the last day in the month of February. Now that seems to us to be a relatively simple and straightforward way of doing it. You find your EDT, you take the day and date before and you go forward three months.

The submission of Mr Giffin, in our judgment, complicates matters because you are looking at a date and then trying to deduct from it. The litigant who is likely to be before industrial tribunals, not being advised, would find it much more complicated to take that approach rather than the approach which we have indicated.

Having reached that conclusion we look to see whether there is authority which tends to point in the direction which we have gone. The first authority to which we have already referred is Trow . This was a substantial case in the Court of Appeal dealing with the proper interpretation of the rules of the Supreme Court, Order 6, Rule 1, on the issue and service and running of a writ. Lord Denning gave a dissenting judgment. Lord Justice Salmon and Lord Justice Harman gave the two judgments which therefore base the decision. There is a wide ranging review of the earlier authorities. There is, however, a passage in the judgment of Lord Justice Salmon, of course as he then was, at p.923 at G when he is looking at the effect of the service of the writ and the time during which it remains valid. He says this:

"September 10 begins immediately after midnight on September 9 and finishes at midnight on September 10. This is self evident. Accordingly if the date of the issue of the writ was September 10, 1965, the validity of the writ for the purposes of service began with September 10, 1965, and expired 12 months later on September 9, 1966."

That, in our view tends to concentrate the mind on the day before the date of the issue of the writ for the validity of that writ, 12 months hence.

Then there is the authority of Hammond v. Haigh Castle & Co Ltd

[1973] ICR p.148

, in a reserved judgment Sir John Donaldson, President of this Court at that time, was dealing with the second part of what is now Section 67(2). Nevertheless, the question arose of whether proceedings were issued in time. It is important to note that in that case at that time the limit was to be assessed in weeks, in other situations the limits are assessed in days and in yet others they are assessed in years. It is only where the measure of assessment is in months that the problem we are now facing is reached. My purpose at looking at Hammond is to see the approach of the learned Judge when considering the relevant date to arrive at before the calculation of time is carried out. At page 150 at H he says this:

"In the light of the decision of the Court of Appeal in Trow v. Ind Coope (West Midlands) Ltd [1967] 2QB 899 it is clear that a period beginning with the effective date of termination includes that date as part of the period of four weeks. Accordingly, on the facts of this case the complaint had to be `presented' on or before the 27th day thereafter, namely August 27, 1972, and not on or before August 31 as advised by the association. The time limit is four weeks and not one calendar month."

It seems to us, there again, there is the concentration on the relevant date.

The last authority to which we have been referred is Dodds v. Walker

[1981] 1WLR 1027

, a decision of the House of Lords upon the provisions of the Landlord and Tenant Act 1954. The facts were that on 30th September 1978 the landlord under that Act, gave notice to the tenant to determine his tenancy of a business premises. Under Section 29(3) of the Act the tenant had four months, after the giving of the landlord's notice, to apply to the County Court for a new tenancy. The tenant applied on 31st January 1979, the Registrar dismissed the application on the basis that he was out of time, and on appeal the Judge held that in computing the four month period the day that the landlord gave notice was to be excluded, but notwithstanding that September was a 30 day month, the period elapsed on the corresponding day in the fourth month, namely 30th January, therefore the tenant's application made on the last day of January was made one day too late. His decision was affirmed by the Court of Appeal and the House of Lords dismissed an appeal from the Court of Appeal.

The facts are thus very simple, and as Lord Diplock puts it in his speech, "in the instant case the Respondent's landlord, notice was given on 30th September 1978, the Appellant tenant's application to the Court for a new lease was made on the 31st January 1979. The only question in this appeal is, was that one day too late?" He refers at p.1029 to the Interpretation Act and then he continues thus:

"It is also clear under a rule which has been consistently applied by the courts since Lester v. Garland [1808] 15 Ves.Jun.248, that in calculating the period that has elapsed after the occurrence of a specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning."

pausing there, it is essential to remember that in the present case it is included in the reckoning - and I continue with the speech:

"It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given."

again, pausing there, that is the day of the month on which the notice was given on the facts of Dodds is the relevant day from which the calculation is to be made. Our view of Section 67 is that the relevant day is the day and the date before the EDT. But to return to Lord Diplock's speech:

"The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month's notice given in a 30 day month is one day shorter than one month's notice given in a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.

This simple general which Chief Justice Cockburn in Freeman v. Read [1863] 4 B & S 174, 184 described as being `in accordance with common usage . . . and with the sense of mankind', works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the was given. Such was the instant case and such will be every other case except for notices given on the 31st of a 31 day month and expiring in a 30 day month or in February, and notices expiring in February and given on the 30th or the 29th (except in leap year) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established; the period given by the notice ends upon the last day of the month in which the notice expires."

Looking at the speech so far, it seems to us that the suggested approach which we have put forward leaves fewer problems than does the situation envisaged by Lord Diplock, and indeed, as we have indicated it is really only in the two days of the year that those difficulties could arise. It is also clear from the speech of Lord Russell of Killowen that the concentration is upon the relevant date before the calculation of time takes place and we adopt the reasoning of Lord Russell of Killowen more especially if he is looking at a point of time at the midnight between two dates, namely in the present case it was between 30th August and 31st August, he then goes forward and says that the process must be served or delivered within three months from that point of time, and that point of time in the present case would have been the 30th November.

For those reasons, therefore, we allow this appeal and we remit the matter to the Industrial Tribunal so that they may continue to hear it having, in our judgment, jurisdiction so to do.