University Of Cambridge v Murray [1993] UKEAT 96_92_1101

EAT

University Of Cambridge v Murray

[1993] UKEAT 96_92_1101 · 1993-01-11

JUDGE HICKS QC:

The University of Cambridge appeals against the decision of the Industrial Tribunal on the 10th December 1991 on a preliminary issue arising out of Mrs Murray's application for wrongful dismissal. The preliminary issue was as to the jurisdiction of the Tribunal, having regard to the date on which the Originating Application had been presented in relation to the date of the effective termination of Mrs Murray's employment, and the point arises out of Section 67(2) of the Employment Protection (Consolidation) Act 1978 which provides that:

"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."

In this case the date of effective termination was 30th April 1991; that, as we understand it, was not in dispute before the Tribunal, and it has not been in dispute before us. The date of presentation, equally not in dispute either before the Tribunal or before us, was the 30th July 1991. The question of an extension by reason of lack of reasonable practicability was one which obviously might have been open but which, in the event, was not argued by the Applicant before the Tribunal. They record in paragraph 5 of their Reasons that:

"she accepts that, as she consulted a solicitor, it is not open to her to argue that it was not reasonably practicable to present it in time if [contrary to her submission] it was not presented in time."

So we are left, as the Tribunal was, with the pure point of law: on that legislation, and on those dates, was an application presented on the 30th July 1991 presented before the end of the period of three months beginning with the 30th April?

In regard to any time period prescribed by statute or other controlling legislation or regulation at least two general questions can arise. The first is, how is the period to be computed, having regard in particular to the fact that the calendar contains months of varying lengths, if the period is specified in terms of a month or a specified number of months? The second is, given a starting date, does the starting date count as part of the period or is it excluded?

Taking the second question first, it is clear on the authorities, and I do not need to refer to them - it is absolutely clear on the authorities, extending back for a very great length of time - that where the phrase used in the statute or other provisions includes the word "from" or the word "after" then the starting date is not included in the period. But in this case the phrase is not "from" or "after"; it is the expression "beginning with", and it is clear to us, simply as a matter of the use of English, that one would expect that to have a different effect, namely that the starting date is included in the period, and that also has been decided by authority. Again I do not need to refer to the authority; it was cited to us by Mr Wilkie and it is the case of Hare v. Gocher [1962] 2AER 763, and it is clear that that was applied by this Tribunal in the case of Jean Sorelle Ltd v. Ryback

[1991] IRLR 153

, which was cited and accepted by the Industrial Tribunal. So in our view the issue of whether the starting date, namely in this context the effective date of termination, counts as part of the period or not, is clear and is decided by that authority, and indeed was accepted by Mrs Murray before the Industrial Tribunal and is accepted, on her behalf, by Mr Revell before us.

The other question - how does one compute the relevant period - has also been long decided in general, namely that one simply looks to the corresponding date, that is to say the day with the same number in the month to which one has to pay attention.

The result of combining those two rules is that when one is computing a period "from" or "after" a particular date the answer is simplicity itself: you simply say that the last available date is the day with the corresponding number in the month to which one is looking, and the only necessity for any exception is when the period begins on a day which has no corresponding number in the other month because, for instance, it is the 31st and one is going to a month which only has 30 days, or it is the 29th, 30th or 31st and one is going to the month of February in a non-leap year. The modification of the rule in that case is equally simple, commonsense and equally straightforward: one simply goes to the last day of the corresponding month. When the words are "beginning with" the period starts a day earlier, and goes to the day before that with the same number in the corresponding month, with the same modification if there is no such number (which, as it happens, can only occur in this instance if the corresponding month is February). All that is, in our judgment, absolutely clear on the authorities. Its application to the present case is equally clear, namely that the period of three months beginning with the 30th April ended on the 29th July and that Mrs Murray's application on the 30th July was therefore unfortunately one day too late.

The argument on her behalf that prevailed with the Industrial Tribunal seems to turn on two propositions, in the alternative. One is that since a termination on the 1st May would undoubtedly have given her until the 31st July to present her application, and since she was dismissed only one day before the 1st May, therefore she ought to have had until one day before the 31st July, namely the 30th July, to present her application. It amounts therefore, to an argument that one should count backwards rather than forwards. The answer to that is first that it is contrary to the authorities to which I have already referred. Secondly that it cannot, if it is right, stop there. If one counts backwards for one day from the 31st July to the 30th then had she been dismissed on the 29th April one would count back a further day to the 29th July and so on, and the whole of that month would have eventually been distorted by one day from what would be the position under the application of the normal and general rule. Moreover, the application of that rule would produce even greater nonsense in the case of termination at the end of February or beginning of March, because a termination on the 1st March would clearly give the last day of May, the 31st May, as the last date for the application and this logic would mean that a dismissal the day before, on the 28th February, would give the 30th May as the last day for application, actually one month and two days later than the dismissal, so that cannot be right.

The other way in which it is put is to say that if the law as submitted by the University of Cambridge and accepted by us is accurate then there is, as it were, a "lost" day, because dismissal on the 1st May would give a last date of the 31st July, dismissal the day before on the 30th April gives a last date of the 29th July and the 30th July is therefore a date which can never be the last available date for an application, to which the answer is, to put it in the most colloquial terms: "so what". It is obvious that the result of there being not the same number of days in various months is that situations of that kind can and will arise, and so we see no weight in that argument. Moreover it leads to the same regression as the first argument, merely carrying the "lost" day back, step by step, to the beginning of the month. For all these reasons we consider that the appeal must be upheld.

As to the consequences of that, it is of course commonly the case that when an appeal to this Tribunal succeeds the matter must be remitted to the Industrial Tribunal, because we are concerned only with matters of law and cannot deal with matters of fact. But in the present case, for the reasons I gave at the outset, no question of fact remains to be dealt with. The issue of reasonable practicability has disappeared; it is not a live issue and cannot, as we understand it, now be raised, and therefore the result of the success of the employers' appeal must be that the whole Application is dismissed, and we so order.