Tomlinson v Doxey & Anor [1993] UKEAT 799_92_1011

EAT
Tomlinson v Doxey & Anor
[1993] UKEAT 799_92_1011 · 1993-11-10
HIS HONOUR JUDGE BULL QC This is the appeal of Mr E R Tomlinson from the decision of the Industrial Tribunal sitting at Nottingham on 14th October 1992, the Full Reasons for that decision having been sent to the parties on the 20th of that month.Before the Industrial Tribunal, the employers took as a preliminary issue, the point whether having regard to the time-limit contained in S.67(2) of the Employment Protection (Consolidation) Act 1978, the Tribunal had jurisdiction to consider Mr Tomlinson's complaint in view of the fact that his Originating Application was not received by the Industrial Tribunal within three months of the effective date of the termination of his employment, namely 24th October 1991. The Originating Application was lodged on 28th April 1992, when it should have been received on or before 23rd January 1992.

Section 67(2) of the 1978 Act, provides as follows -

"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."
Before the Industrial Tribunal Mr Tomlinson said that he did not obtain the necessary assistance from the Department of Employment, and the Industrial Tribunal expressed the view that had he indicated to the Department of Employment that he wished a claim for unfair dismissal "We are sure that he would have been handed an IT1 and any necessary pamphlets by the Department". In making this assumption, the Industrial Tribunal did not have the advantage which we have enjoyed, of seeing a letter written from the Employment Service from the Jobcentre in the High Street at Heanor in Derbyshire, which is in these terms:
"I have considered your grievance very carefully and it does appear that the department is at fault by not furnishing you with the information you requested regarding your rights.
I do appreciate the fact that as someone who has not been in an unemployment situation before, it is unlikely that you would be aware of the Industrial Tribunal procedure or its time scales."Whatever may be the position in other Jobcentres, it is plain from another letter dated 22nd May 1992 from that same Employment Service at the Jobcentre in the High Street in Heanor that Mr Tomlinson had submitted to them a letter on a separate sheet setting the full facts of the termination of his employment and that he was told by his employer "go and not come back". Having set this out he continues:
"I don't know my position in law. I have no contract of employment as stated I have been employed since 1982. Do I have any rights?"
The letter of 22nd May 1992 makes it plain that there was no response by the Employment Service to the question asking whether he had any rights. Further, that letter makes plain that in the Jobcentre in the High Street at Heanor they do not display leaflets on unfair dismissal nor leaflets upon industrial tribunals and that when telephoned the Benefit Section Manager frankly conceded that she did not know about such leaflets.We decided to admit in evidence the letter of 12th March 1993, and it is our view that had this letter been before the Industrial Tribunal, it would have significantly altered their approach to this application. The parties have requested us for understandable reasons of cost and expedition, not to remit this preliminary matter to the Industrial Tribunal for a further hearing from the preliminary point of jurisdiction. We think it right to accede to that request and upon the basis of all the evidence available to the EAT, including the letter of 12th March 1993, we unanimously conclude that this complaint has been brought within such further period as is reasonable in this case, for we are satisfied that it was not reasonably practicable in the highly exceptional circumstances of this case for the complaint to be presented before the end of the period of three months. Upon those grounds we do find that there is jurisdiction to entertain this application by Mr Tomlinson and for that reason this appeal is allowed.We direct that this matter be remitted to a differently constituted Industrial Tribunal for the hearing of the complaint of unfair dismissal.