Quelch-Woolls v Amey Construction Ltd & Ors [1993] UKEAT 918_92_0110

EAT
Quelch-Woolls v Amey Construction Ltd & Ors
[1993] UKEAT 918_92_0110 · 1993-10-01

JUDGE J HULL QC:

This is another case which has been set down in front of us under our Practice Direction as a preliminary matter to see whether there is any point of law in the case. Under the section of the Act which creates our jurisdiction we are confined to points of law. I make this plain for the benefit of Mr Quelch-Woolls and anybody else who is interested. Accordingly, our jurisdiction is much narrower than that of other appeal tribunals, such as, for example, the Court of Appeal itself which can consider appeals on questions of fact or the Crown Court, which hears appeals from Justices and considers questions of fact. We are confined by Parliament to considering questions of law and we must respect that; otherwise anything we do is outside our jurisdiction and invalid.In this case Mr Quelch-Woolls had the misfortune to find that he became unemployed in circumstances which are set out in the decision of the Tribunal. The facts are slightly complicated. He says that he became redundant on the 1st February 1991. He first of all claimed redundancy money and that was wrong, and then he claimed wages under the Wages Act. I will cite from what the Industrial Tribunal had to say about it:
"In this case the applicant claims the outstanding wages which he says were due to him at the date of his dismissal. This claim can only be dealt with by this Tribunal under and subject to the limitations of the Wages Act 1986. Section 5(2) of that Act sets out the time limit for bringing these proceedings which time limit is that they must be brought within 3 months following the alleged deduction. The alleged deduction in this case must have occurred when the employment ended. The non-payment of wages due amounts to a deduction and if there were any wages due and payable to the applicant when he was dismissed they were due and payable on 1 February 1991. That, therefore, is the date from which the three month period under Section 5(2) of the 1986 Act runs."
I should say that Mr Quelch-Woolls' employment was as a management accountant. He earned a basic salary of £50,000 a year. He is quite plainly, if I may respectfully say so, a man of education with knowledge of financial matters, and that was one of the important matters which the Tribunal had to consider. I will continue with what the Tribunal said:
"The applicant was dismissed by the Receiver of Farr plc (Farrs) on 1 February 1991. Most of the other employees of Farrs were either dismissed on 12 December 1990 or had been earlier transferred into the employment of the respondents. The The applicant was unaware of the precise terms of the Agreement under which the construction business of Farrs was transferred to the respondents. He had not seen a copy of it but he was aware of what was going on. He knew that effectively the respondents were taking over all Farrs' employees which they required to carry out those contracts. He knew that they were only taking over the people they required for that purpose and that they were effectively acquiring Farrs' construction business."
Then the Tribunal sets out:
"3. The applicant is a professionally qualified management accountant . . . He says that he was not aware of the precise provisions of the Wages Act and we are prepared to accept that this was so. He was however aware of this legislation. This is a factor that we must take into account on this issue.
4. Mr Bean, [who is the legal representative] for the respondents, is prepared to accept that it was not reasonably practicable for the applicant to have brought these proceedings within the three month time limit. He really does this on the basis that the applicant, in common with many other employees, was invited by the Receivers to make claims through the Receivers for payments to be made by the Secretary of State under Section 122 of the Employment Protection (Consolidation) Act 1978. That claim was not rejected by the Secretary of State until 1 May 1991 when the Department of Employment wrote a letter to this applicant informing him that his claim was rejected."So that the three months had then elapsed and it was accepted therefore that Mr Quelch-Woolls could not reasonably have been expected to make his complaint within the statutory limit. Then they go on:
"5. We have had to make a number of assumptions as to what happened thereafter because the applicant [Mr Quelch-Woolls] is unable to provide definite evidence in relation to the matters covered by those assumptions. Firstly, we will assume for the purposes of this decision that the applicant did not receive the Department of Employment's letter until, say, 6 May. The applicant then filed an application to the Industrial Tribunal in which he claimed unfair dismissal. For the purpose of this decision we will also assume that this application was sent to the Industrial Tribunal on or about 20 May. It was rejected by the Industrial Tribunal on 4 June 1991 because he did not have 2 years' continuous service. He then re-submitted the present applicant which was received by the Industrial Tribunal on 19 June 1991. It is dated 17 June. He says that he was not financially in a position to get legal advice."
If I may pause there, Mr Quelch-Woolls told us today that he did have some money, but that he preferred not to spend it on lawyers and took advice from various friends and indeed the Industrial Tribunal's office.
"6. That may well be the case but there are many sources of information and advice available on this and this is another factor which we must take into account on this issue. The applicant gets over the first hurdle created in Section 5(2) because we are satisfied that it was not reasonably practicable for him to bring the proceedings within three months of his dismissal. The next question is therefore is it reasonable for us to extend his time for bringing these proceedings until 19 June? The law relating to this matter is set out in excellent terms in Volume I of Sweet & Maxwells Encyclopaedia of Employment Law where it says this:-
`Even in a case where the applicant satisfies the tribunal that it was not reasonably practicable to have presented the complaint within the three months' period, he must show further that once he was put on enquiry and was in a position to make his claim he did so within a further reasonable period. The cases on this point would seem to indicate that in such a situation a delay of no more than two or three weeks after it becomes practicable to present the complaint might well enable the tribunal to say that the complaint had been brought within a reasonable time. But if it were left for a second period of three months before bringing the complaint then it would seem that such a delay would be unreasonable even if in the first three months it had not been reasonably practicable to make the complaint.'Effectively the applicant delayed issuing these proceedings for some seven weeks outside of the three month time limit. In the early part of that period of seven weeks it became known to him, as a result of the letter which he received from the Department of Employment, that his claim was being rejected by the Department and that he had to pursue it in other ways. Having regard to his former position with Farrs and to his professional qualifications we believe that he should have acted more expeditiously than he did and that it would not be reasonable for us to extend his time to bring these proceedings until 19 June. Therefore, we cannot, having regard to the provisions of Section 5(2) of the Wages Act 1986, consider his complaints under the Wages Act."That is the decision of the Tribunal from which it is perfectly obvious to us that they applied their minds to the correct principles. They cited from the appropriate passage, the law indeed must be well known to this Tribunal as to other experienced Tribunals, and of course the Tribunal had to engage in a balancing act when considering whether it should extend time. On the one hand Parliament intends that these applications to Industrial Tribunals should be a form of summary justice. They should be dealt with promptly, justice delayed is justice denied, something which has to be underlined continually.Secondly, of course, they have to have regard to the interests of the parties themselves and the nature of the mistake or whatever it may have been which led to the lateness; they certainly did that here. They correctly say that a period of two or three weeks' delay after the period has expired may entitle a Tribunal to say that it is reasonable to extend time so far. That does not mean that the Tribunal is obliged to; and here the Tribunal seems to us to have paid regard, in particular, to Mr Quelch-Woolls' undoubted status as a man of specialised knowledge, high skill and senior position. He was making a claim. A responsible and knowledgable person who is making a claim is under a duty, as an elementary matter, to acquaint himself with the law as best he can and present that claim promptly. If he does not, and puts himself at the mercy of the discretion of the Tribunal, then of course he has to be judged as best they can by the Tribunal. It is for the Tribunal, not for us, to say what is reasonable. In exercising that jurisdiction the Tribunal are exercising a discretion and when a Tribunal exercise a discretion they are not to be criticised as a matter of law unless it can be said that that Tribunal have exercised their discretion either on grounds which were irrelevant or were in some other way improper, or that they have exercised their discretion in a way which no reasonable Tribunal, properly considering the facts and the principles of law, could have done.Now it does seem to us that there can be no question of any such contention being supportable in this case. This Tribunal correctly addressed themselves to the legal rules and to the matters which were put before them which appear to us to be relevant, and they reached a decision unfavourable to Mr Quelch-Woolls. It is perfectly true that as in all matters of discretion a different Tribunal, perhaps considering different submissions, might have reached a different result, that is in the nature of discretion. But we cannot say as a matter of law that this Tribunal erred in law in any way, we cannot, doing the best we can with Mr Quelch-Woolls' courteous assistance, find any point of law here and in those circumstances we have no alternative but to say that since no point of law is disclosed this appeal can proceed no further.I would just say, Mr Quelch-Woolls, that if you do think it right on reflection to consider this matter with a lawyer's assistance it may very well be that there are still courses open to you. Of course we not advising you about that and it is entirely a matter for you what further advice, if any, you take.So this appeal must be dismissed.