Kpaka v Ministry Of Defence [1993] UKEAT 848_92_0710

EAT
Kpaka v Ministry Of Defence
[1993] UKEAT 848_92_0710 · 1993-10-07

JUDGE J HULL QC:

This is a preliminary hearing under our practice direction to see whether the appeal should proceed. We are, of course, entitled only to consider appeals on matters of law, unlike, for example, the Court of Appeal or the Crown Court; we have no jurisdiction to hear appeals on questions of fact and we go outside our jurisdiction if we consider any matters other than matters of law.Mr Kpaka complained that he had been discriminated against and unfairly dismissed. He was employed by the Ministry of Defence in a civilian capacity from December 1985 until January 1992 when his dismissal took effect. His dismissal was said to be on medical grounds. He had apparently become unwell or come under stress, at any rate, as a result of some disgraceful attacks on him which were nothing to do with the Respondents, and he was apparently told that on medical grounds he was to be retired, that is to say dismissed. He was given a letter of dismissal in November 1991 and 4th January 1992 was the effective date of termination.He appealed against the medical side of what was being said and against his dismissal and there was a Medical Appeal Board on the 28th February 1992. The decision letter from the Board did not arrive apparently until 6th April 1992. Now in the mean time, his time for making his applications concerning unfair dismissal and racial discrimination had expired. He had three months and his time expired on the 4th April. In fact his application was received by the Central Office of Industrial Tribunals on the 8th April 1992, so he was four days out of time. He asked for time to be extended and the question was considered by the Industrial Tribunal for London (South); they sat on the 25th September 1992 and they gave their decision on the 19th October 1992. As is pointed out to us by Mr Reid, who appears today for Mr Kpaka, there are slightly different criteria in the two Acts which govern this. Under The Employment Protection (Consolidation) Act 1978, Section 67, the criterion is whether it was not "reasonably practicable". The Tribunal is not to entertain the claim for unfair dismissal unless it was not reasonably practicable to present it within the 3 months. Under the Race Relations Act 1976 the Tribunal is again prohibited from considering such a complaint, unless it is within three months, unless they consider it just and equitable to extend time, and Mr Reid suggests that there is a difference there and of course he is quite right, literally speaking. The Industrial Tribunal dealt with it like this, in paragraphs 4 and 5 of their decision:
"At some time between 4 January 1992 and 8 April 1992 he communicated in some way with the Commission for Racial Equality but there is no evidence that he applied for their assistance before a date which consistent with the Commission's letter of acknowledgement is dated 22 May 1992. Similarly he communicated with an organisation called Care Assist early in April 1992.
The Applicant had decided before 4 January 1992 to pursue an application to the Industrial Tribunals alleging both unfair dismissal and racial discrimination but was too busy while still at work to take the necessary steps to obtain an IT1. [That is of course the application to the Tribunal, the form.] He acknowledged he was not awaiting the result of the Medical Board before lodging his application. After 4 January 1992 there was a responsibility placed on him to act promptly within the 3 months time limit. There is no evidence that it was not reasonably practicable for him to lodge an Originating Application before the expiry of three months and, in particular, that the Commission for Racial Equality had said that they would be willing to act for him in this respect. Their letter of 22 May 1992 indicates rather that they were not asked to consider the provision of assistance until long after the three months limit had expired, and their standard letter reminds an Applicant of the time limit in Industrial Tribunal proceedings. We do not, in all the circumstances, consider it just and equitable to extend the three month time limit."There are several matters which are raised by Mr Reid, who of course did not appear below where Mr Kpaka was "in person". First of all he said that it might well be thought that what had happened here was that the authorities had deliberately delayed notifying the result of his medical appeal to the Applicant, Mr Kpaka, so that he would await that and thus be out of time; and it was therefore significant that the result of that appeal was only sent to him on the 6th April.That was a matter that was never suggested to the Industrial Tribunal and if it had been they would have had to consider that as a very grave allegation and one which would most certainly justify them in extending time. The deceit or misbehaviour of the other party will always be a ground, if it has misled the Applicant in any way, or prevented him from exercising his rights. The Tribunal did, quite without that suggestion being made, ask themselves the question whether in fact Mr Kpaka was waiting for the result of the appeal to the Board, before he presented his complaint. It would be a natural thought which would occur to any layman and I think to any lawyer that that might well have been the position, and that they should consider that in exercising their discretion. But they say, having clearly enquired into that, that Mr Kpaka acknowledged that he was not awaiting the result of the Medical Board before lodging his application. It seems inconceivable that they could have said that if they had not made enquiry of Mr Kpaka. Mr Reid says today the complete contrary, that indeed Mr Kpaka was awaiting the Board's decision before he presented his complaint. That is completely contrary to what is said by the Industrial Tribunal, and there is no evidence that the Industrial Tribunal simply failed to understand what was said to them. There is no evidence from Mr Kpaka that he gave evidence and that it was totally misinterpreted or misunderstood by the Tribunal and we cannot, with respect, criticise the exercise of discretion by the Tribunal on the basis that Mr Kpaka said one thing to them and now, through his Counsel, says another to us.Then Mr Reid asks us to consider what is said in paragraph 4 of the decision, namely, that there was no evidence about the date at which Mr Kpaka approached the Commission for Racial Equality. Well, it was the job of Mr Kpaka himself to justify his application for extension of time. We have no doubt that if the Tribunal had thought that had been a critical matter they would not simply have said there was no evidence but would have enquired themselves as best they could; but they merely remarked that there was no evidence about it, and there it is. It does not seem to us that that can affect the matter.Then Mr Reid says, again quite rightly, that this is a very short period out of time and he also says that this Tribunal failed to consider that if indeed Mr Kpaka was suffering from mental illness that was something which might easily affect him so that he had a just excuse, to say the least of it, for not being in time. Mr Reid points out, and certainly for my part I need no convincing, that mental illness, or illness which affects the mind in any way, can have a quite crippling effect on anybody's ability to act even in their own interest. That is all perfectly correct but we have to say, first of all, that there is no evident reason why Mr Kpaka should be able to present his application four days out of time but not be able to present it in time. Secondly, and more important, this Tribunal had the great advantage of hearing Mr Kpaka, which we have not had.This discretion to extend time is one which is to be exercised sparingly and carefully. It is quite clear that Parliament intended Industrial Tribunals to adjudicate in these matters in an informal and summary way and that a short time limit was therefore fixed by Parliament, with fairly exacting requirements as the only basis on which it could be extended. The exercise of discretion by a Tribunal or Court is only to be criticised as a matter of law and interfered with, by a Court of Appeal or superior Tribunal, if it can justly be said either that the Industrial Tribunal (in this case) exercised its discretion in a manner which no reasonable tribunal, correctly directing themselves as to the law, could have done, that is to say, quite irrationally or "perversely" as it is sometimes called, or, secondly, that the Tribunal took into account matters which it should not have done; or ignored matters which it should have taken into account; or misapprehended the basis on which it was acting. Having carefully considered all that has been said by Mr Reid we cannot find here any error of principle or any of the types of error which I have mentioned in the way in which this Tribunal exercised their discretion. In particular we have not the slightest doubt that the Tribunal had well in mind the nature of the reasons which were being given by the Respondents for the Applicant's dismissal; had well in mind the matters which Mr Reid urged on us in regard to Mr Kpaka's mental health; and also, having heard Mr Kpaka, were particularly anxious about some of these matters and asked him about them and obtained his acknowledgment that he was not awaiting the result of the Medical Board before lodging his application.In those circumstances, we cannot find any error of principle, or any errors of the types we have mentioned, which could possibly be said to be errors of law here. Therefore this appeal cannot proceed and must be dismissed.