Midland Bank Plc v Samuels [1993] UKEAT 672_92_2806

EAT

Midland Bank Plc v Samuels

[1993] UKEAT 672_92_2806 · 1993-06-28

JUDGE HULL QC :

In this case Miss Samuels, the applicant below, was employed for a substantial period by the Appellants, the Midland Bank. She was first employed on 20 August 1973 and her employment ended when she was dismissed on 11 October 1991. There were serious allegations against her. We cannot go into those at all. She complained that she had been unfairly dismissed. As I say, the dismissal (after enquiries) took place on 11 October 1991 and the Tribunal said, no doubt rightly, that that was the effective date of determination.

Her application to the Central Office of Industrial Tribunals was not presented until 4 February 1992 although it must be said that she had been pursuing an internal appeal for part of the time. That appeal was finally dismissed on 19 November 1991. That could not make any difference to the effective date of termination. It remained 11 October 1991 and therefore her application was, on the face of it, out of time being outside three months from the effective date of termination. However, the Industrial Tribunal extended time and allowed the application to proceed.

The Tribunal is only allowed to extend time if it is satisfied that it was not reasonably practicable for the applicant to present her application within the period of three months which the statute allows.

She was represented by Mr Wishart, a trade union officer who as we understand is an experienced advocate. The Tribunal at page 14 says:

"The dismissal of the appeal said Mr Wishart had led to considerable difficulties to the Applicant both in relation to her relations with her flat-mate which had become strained because of the inability of the Applicant to contribute towards the mortgage repayments [that no doubt was through loss of her salary] and because of illness and depression from which the Applicant suffered following her dismissal. [Following in other words 11 October. It could only be material if the illness followed it]. The Applicant had left the address which was the only one known to the Union and the Union felt that although it had itself decided that her application for unfair dismissal should be supported it had to obtain the Applicant's authority before an application could actually be presented. Messages and letters to the Applicant at her only known address had not been forwarded and it was not until the beginning of February that the Union had been able to communicate with the Applicant. Thereafter, the application had been presented as quickly as possible."

That was what Mr Wishart said and the Tribunal added.

"We also saw a medical report from the Applicant's general practitioner as to the nature of the Applicant's illness."

A copy of that report is to be found at page 59. It certainly does not support everything Mr Wishart said. What it does say is this:

"The above lady was treated by Dr --- (now retired) in August '91, with a sedative [and I should stress that was in August 1991] for insomnia due to worry at work. In September 1991 the insomnia was worse as her anxiety and depression had worsened due to events surrounding her employment. She was also suffering vertigo at the time, so was prescribed another sedative.

It is within possibility that the combination of her mental state and sedative treatment prescribed may have affected, albeit temporarily, her memory at this time."

That, says Mr Caborn today for the Appellants, the Midland Bank, related to August and September 1991 and says nothing about the material time which was her dismissal and the dates which followed it which I have referred to, in particular 19 November when her appeal was dismissed and certainly there are two matters which are quite clear.

First of all if a person asserts that they were unwell, then it is up to them to produce medical evidence of the extent and effect of the illness and secondly, if a party is represented by a trade union, it is perfectly obvious that they must keep in touch with their representative. The same applies if they are represented by a solicitor or another type of expert, it may be a surveyor, or an accountant on a tax appeal or anything of that sort: it is fatal not to keep in touch with your representative because your representative is expected to take steps at various times on your behalf and needs your instructions on how to deal with these matters. If you do not reply to letters, if you move without giving your address to your representative, then that is not something that can count in your favour. It is not a matter which you can rely on if you fail to take steps in time. The whole situation alters if it is alleged that you were unable to take these steps; that you were so affected by illness that you were not able to address your mind to your business affairs and were quite unable to take the steps which commonsense suggests. I am very glad to hear, I am sure we all are, that the trade union in this case always makes it perfectly plain to people it is representing that they must keep in touch. That normally of course would be fatal to any suggestion by Miss Samuels that it was not reasonably practicable for her to proceed in time. But what was alleged on her behalf went far beyond what is said in this medical report.

It is said that she was suffering from illness and depression following her dismissal and indeed it was added today by Ms Hollywood that she is still suffering from illness to some extent. What Mr Wishart said on her behalf was not supported by any evidence apart from this letter and therefore it was on the face of it incumbent on him to call the evidence. It may be that he would have asked for an adjournment, we do not know. It may be that he could have called evidence. The Applicant's evidence in particular would have been very important on this and it may be that what she had to say about her mental state at the various times and her reasons for behaving as she did would have thrown a flood of light on it. It might have completely destroyed her case or it might have supported it to the hilt. We do not know.

The reason we do not know is this, that according to the Tribunal in its Judgment, Miss Bury, who appeared for the Midland Bank below, was prepared to accept these matters and therefore the Tribunal heard no evidence, was prepared to accept that Miss Samuels was suffering from illness following her dismissal and so on, and that it was not possible for the union to communicate with her. All that was accepted.

If what Mr Caborn has said to us today is correct, then it certainly should not have been accepted. Now it is for the Industrial Tribunal to decide, and it is a question of fact, whether it is or is not reasonably practicable for an Applicant to present their complaint in time. It is obviously a strong thing to say that for three months it was not reasonably practicable. The burden lies fairly and squarely on the Applicant. The task, which clearly falls upon the Applicant, was not discharged at all in this case because Miss Bury made the concession which I have mentioned. She accepted all that was said by Mr Wishart, according to the Tribunal.

We have not seen any notes of argument and of course there was no evidence apart from this letter so we do not know exactly how the matter was put to the Tribunal, but it is clear, from what Mr Caborn has told us, that there never was any intention by the Bank to concede all that Mr Wishart had said; and therefore there is a mix up. The evidence was not called. The Tribunal reached its findings on the basis of an ostensible concession and we are now told that that concession was intended to go no further than the letter, which as we said appears to us to be inadequate to support the serious contention which was made by Miss Samuels.

In those circumstances we ask ourselves what is the best thing to do. The Industrial Tribunal is not intended to be a tribunal where the services of experienced advocates are invariably retained and where, as it would be in the higher Courts in this country, it would be fatal to approach the Court as advocate unless one were truly experienced in adversarial litigation. So it may very well be that Miss Bury was mistaken in accepting the matters and should have said as an experienced advocate would at the time - `I don't accept any of this. I have seen the letter. It does not come anything like up to what is being said by Mr Wishart. Unless Mr Wishart is prepared to support his contentions by calling the necessary evidence I don't accept a word of it'. She could have said that. She did not and it appears to us that that was a mistake. It may or may nor be that Miss Samuels, if so challenged, could have established her case. We do not know. It may be on the other hand that it would have proved quite impossible to demonstrate what she wanted to demonstrate.

It seems to us that there is a mistake here, a misunderstanding about the extent of Miss Bury's concession which is we think, Miss Bury's fault rather than the Tribunal's. The Tribunal has proceeded on a false basis and therefore has been prevented from doing its duty, which is to do justice to both parties. It did not hear the evidence which it should have heard.

We think the right thing to do is to remit this case to the Tribunal so that it can embark on the enquiry which it was prevented from making by Miss Bury's concession and decide on the evidence whether or not Miss Samuels succeeds in showing that it was not practicable for her to present her complaint in time; so to that extent the appeal is allowed and the matter is remitted to the Tribunal.