Dowty Aerospace Ltd v Ballinger [1993] UKEAT 45_93_1702

EAT
Dowty Aerospace Ltd v Ballinger
[1993] UKEAT 45_93_1702 · 1993-02-17

JUDGE HARGROVE QC:

On the 7th December 1992 the Industrial Tribunal decided that it had jurisdiction to hear this matter.The Respondent's dismissal took place on the 22 May 1992 and the Originating Application reached the Industrial Tribunal on the 27th August 1992. The last date within the three month period would have been the 21st August to have complied with Section 67 of the Employment Protection (Consolidation) Act 1978.The Tribunal had to decide whether it was reasonably practicable to have presented the claim within the three month period. It has to be said that it is essentially a question of fact for the Industrial Tribunal whether it is reasonably practicable for an application to be so presented. The authority for that is the well known case of Wall's Meat Co Ltd v. Khan [1979] ICR 52, the relevant passage occurring at p.57 where

Lord Justice Shaw said:

"It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs.
The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive."There was a helpful review of the numerous cases that have occurred since the Wall's Meat case in Trevelyans (Birmingham) Ltd v. Norton [1991] ICR 488, the passage to which I refer occurs at p.491 and it reads as follows, this is the judgment of the President, Wood J.:
"From the cases, it is our view that the following general principles seem to emerge. The first, as time passes, so it is likely to be much more difficult for applicants to persuade a tribunal that they had no knowledge of their rights in front of industrial tribunals to bring proceedings for unfair dismissal under the Act of 1978 and, of course, that is less likely to be acceptable because the time limit has been increased from four weeks to three months. Second, that where an applicant has knowledge of his rights to claim unfair dismissal before an industrial tribunal, then there is an obligation upon him to seek information or advice about the enforcement of those rights. Third, that if his advisers give him unsound advice, or fail to give him proper advice, or fail to give him advice on a relevant issue, then the failure of those advisers is the failure of the applicant and does not provide a good excuse for the escape clause. Fourth, that the mere decision to await the outcome of criminal proceedings before issuing an originating application before an industrial tribunal, is not a sound or acceptable excuse. Fifth, that solicitors acting in criminal proceedings will almost certainly be aware that the proceedings are in connection with allegations of conduct arising out of the employment relationship and that, therefore, a dismissal is in the offing and, in our judgment, have a duty with that knowledge to inform their client of the simple basic fact that proceedings before an industrial tribunal need to be started and that to await the outcome of criminal proceedings is not a reasonable excuse. Lastly, in the light of the foregoing principles, it is the duty of an industrial tribunal to make detailed and exhaustive inquiries of the applicant once it is established that he had knowledge of his rights."
In this case the approach of the Industrial Tribunal is contained in four reasonably short paragraphs which are as follows, paragraph 3:
"The applicant's explanation for this is that about one month after his dismissal he discussed the whole question of his dismissal with his full time union official and with a representative of ACAS. As a result of those discussions he announced that he wished to make a claim of unfair dismissal against the respondent, and he understood that the union official told him that he would deal with the application. The applicant was aware that he had three months in which to present his application and shortly before that three months expired he telephoned his union official to ask about the progress of his claim. He had not telephoned before because he had had a lot of distraction. He was in constant pain from an ankle injury; he was undergoing treatment and taking pain killers.
When he did telephone his union official he was told by that gentleman that the union had done nothing about the matter and that it was for the applicant to have obtained the necessary forms and made the application. He gave to the applicant the address of the Central Office of the Industrial Tribunals at Bury St Edmunds. The applicant telephoned that office to ask for the appropriate application form and was told to write in for one. He did so. When the application form arrived he completed and posted it on the day that he got it, and we note, indeed, that the application is signed and dated the day before the date of presentation at the Central Office.We have to decide firstly, whether it was reasonably practicable for the applicant to have presented his claim within the three month time limit. We remind ourselves that if the delay was caused by the fault of the applicant's advisers, be they lawyers or trade union officials, then it is settled law that the applicant cannot take advantage of that fault but is bound by it, and he cannot say that it was not reasonably practicable to have made his application within time.In this case we find as a fact that there was confusion between the applicant and his advisers as to who was to institute the proceedings in the first place. Each thought that the other was making the application. Does that give rise to a different situation? We think that it does. This is not a question of following bad advice as to the time limit, for example. This is a case in which the applicant genuinely thought that the union was making the application for him, while the union, at the same time, thought that the applicant was pursuing it himself. We think that this factual situation can be distinguished even from the case where, for example, instructions are given to a solicitor to make the application and the instructions are not carried out because money is not paid on account. In that case everyone understands that the application is to be made and who is supposed to be making it."Upon that basis the Tribunal concluded that it was not reasonably practicable for the Applicant to present his claim.We note that nowhere does the Tribunal find that the disability prevented the Respondent, by which I mean the physical disability, from making the application. The reason for the delay is centred simply upon the confusion. The Respondent relies on the submission that we are bound to find that the factual finding of confusion is enough to uphold the decision of the Industrial Tribunal.The Appellants' argument is that if any analysis is made of the confusion then there are only a limited number of views which can be taken of the behaviour of the employee and his trade union. Either that the employee failed to instruct the trade union to act and that he himself failed to act knowing of the three month period; or, that he did instruct the trade union and that they failed to act; or, that between the two parties they did not define who was to make the application. The Appellant says that whichever approach is taken the Tribunal ought to have been driven to the view that there was default on the part of one or other, or in the last analysis, both. With the utmost regret we are forced to take the view that that analysis is correct. The Industrial Tribunal by elevating the confusion of the employee and the trade union to the level of an excuse which renders it impracticable not to have made the application has misdirected itself on the law, which an adequate analysis of the situation would have avoided.In our view, therefore, the appeal is successful. There was no jurisdiction here and that is a unanimous decision of this Tribunal.