John Healy & Co v Raoff [1994] UKEAT 260_94_1212

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1994] UKEAT 260_94_1212

Case No Appeal No. EAT/260/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

John Healy & Co

Raoff

Date 12 December 1994

12th May 1993 . The applicants employment with the Respondents is terminated, allegedly by way of constructive dismissal.

1st July 1993 . The Applicant's solicitor, Miss Heslop, puts the Applicant's application alleging unfair dismissal into the post, appropriately addressed to the Central Office of the Industrial Tribunals ("C.O.I.T.") in Bury St. Edmunds, Suffolk.

11th August 1993 . The three month time limit for the presentation of such complaint expires.

19th August 1993 . Miss Heslop on return from a holiday (which started on the 30th July), realising that the application had not been acknowledged, discovered that C.O.I.T. had no record of receipt of any such application.

26th August 1993 . She sends a further copy of the application together with a covering letter.

26th August 1993 . The application form IT, having been received by C.O.I.T. is date-stamped.

3rd September 1993 . Miss Heslop is told by C.O.I.T. that the application has not been received. Accordingly she faxes the application which is now registered.

The points arising reflect:-

Section 67

(1) A complaint may be presented to an industrial tribunal against an employer by any person ..... that he was unfairly dismissed by the employer.

(2) ..... 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."

The Respondent submitted that the complaint had not been presented within three months so that the Industrial Tribunal did not have jurisdiction. In the event, having heard evidence from Miss Heslop, the Industrial Tribunal's finding appears from paragraph 12 of the Reasons:-

"We are satisfied that Miss Heslop completed and sent the Original Application on 1 July 1993. We are satisfied that when it was discovered that the application had not been registered at Central Office of Industrial Tribunal that Miss Heslop took all necessary steps to remedy that situation, and in the circumstances we find that it was not reasonably practicable for the Originating Application in this matter to be lodged within the three month time limit required by Section 67 of the Act and find that the Tribunal has jurisdiction to hear this case."

It is from this finding that the employers appeal.

We discern three issues arising from the facts taken in conjunction with Section 67. We deal with each successively. Thus,

First, was Miss Raoof's complaint presented to an Industrial Tribunal within the three month period ?

In argument before us, it was common ground that guidance as to the meaning of "presented" in this context is provided by an obiter passage in the judgment of the National Industrial Relations Court in Hammond v Haigh Castle & Co. Ltd [1973] I.C.R. 148 at 151 :-

"Although it is immaterial to the present appeal, we have been asked to express our opinion on the meaning of the word "presented". In our judgment, a claim is presented to a tribunal when it is received by the tribunal, whether or not it is dealt with immediately upon receipt. Thus a claim delivered to the tribunal office by post on a Saturday is presented on that day, even if not registered before the following Monday. A claim is not, however, presented by the act of posting it addressed to the tribunal."

With this guidance, consistently accepted over the intervening period, an Industrial Tribunal shall not consider a complaint under Section 67(2) unless the Tribunal was caused to receive it within the specified period, whether or no it has acted upon it. Proof of the appropriate posting of the application will not of itself establish presentation to the Tribunal - a position that contrasts with that appertaining to the service of a writ, See Order 10 r. 1(2)(a) and 3(a), Rules of the Supreme Court which provide for service by ordinary first class post with the date of service being deemed to be the seventh day after posting. That said, appropriate posting is in point of fact a powerful element in establishing presentation. Given the reliability of the postal service (which reliability is the premise upon which Order 10 r. 1 is founded), appropriate posting in the vast majority of instances achieves presentation and in all cases establishes presentation as a matter of probability until it transpires that the application has in the event gone astray in the post so as not to be received by the Tribunal.

In the light of the foregoing, we turn to the decision under appeal. It is unhappily apparent that the Tribunal did not in terms decide this first issue, that is, they made no decision as to whether the application had gone astray in the post so as not to be received, or whether it had been received (and thus presented) but had thereafter gone astray so that it had not been subject to the C.O.I.T. procedure. We agree that the Industrial Tribunal's overall decision inferred a finding that it had not been received and thus not presented (hence the finding as to `reasonable practicability') and it may well be that a judgment focused specifically on this first issue would explicitly result in the same finding, but an alternative finding that the application had been presented was open. It is to be observed that the second posting seemingly achieved presentation without triggering the C.O.I.T. procedures.

We then turn to the succeeding issues which arise on the premise that Miss Raoof had not presented her complaint to the Tribunal within the three month period, thus

Second, was presentation by Miss Raoof within the three month period reasonably practicable?

If 'yes' third, was there presentation within such further period as the Tribunal considered reasonable?

As a preface to our disposal of these aspects of the appeal, we draw attention to the strong guidance as to the resolution of the first of these issues given by the Court of Appeal in Wall's Meat Co Ltd v Khan [1979] I.C.R. 52 Shaw L.J. said at 57:-

"The question which arises once more on this appeal is how and where the demarcation line between what is reasonably practicable and what is not should be determined and drawn.

It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs.

The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive."

Brandon L.J. at 63 repeated this proposition:-

"These considerations lead me to support the view expressed by both Lord Denning M.R. and Shaw L.J. that matters arising under paragraph 21 (4) of Schedule 1 of the Act of 1974 are primarily matters of fact for the decision of the industrial tribunal trying the particular case, and that appeals on such questions, involving as they often do the dressing up of questions of fact so as to have the appearance of questions of law are, in general, undesirable and to be discouraged"

Finally, Lord Denning M.R. made a typically trenchant contribution at 56:-

"In parting from this case, I must say that I regret the volume of case law which has accumulated about this time limit for unfair dismissal. There are other statutes in which the Courts are given a discretion to extend a time limit: and they operate successfully without attracting long arguments on facts or on law. I would like to suggest that some limit be placed on the reporting of these cases. They all turn very much on their own facts. If we are not careful, we shall find the industrial tribunals bent on under weight of the law books or, what is worse, asleep under them. Let principles be reported, but not particular instances."

Turning then to the decision under appeal, our only concern is as to whether it addresses these two further issues as identified above: if it does, then we are in no position to challenge it; if it does not, then a misdirection as to law, that is as to the issues for resolution will reluctantly have to be identified.

In the event, we are driven to accept the submission of Mr Burles that the reasoning apparent in paragraph 12 (which is the totality of that underpinning the decision) does not address the further issues that we have identified as arising from Section 67(2). Thus, averting to the second issue, the posting on the 1st July reasonably gave rise to a probablity that there had been resultant presentation in that all that was normally needed and reasonably practicable to effect presentation had then been done. The absence of any acknowledgement from the C.O.I.T. may with the passage of time serve to negate that probability so as to call into question what (if anything) was at that later stage reasonably practicable to secure presentation within time. Averting to the third issue, a finding that it was not reasonably practicable to do more to secure presentation within the period, does not permit indefinite extension of the three month period: was the eventual presentation reasonably proximate to the three month period?

By paragraph 20, the Tribunal may be resolving these issues. Thus it may be finding that by the appropriate posting of the 1st July, Miss Raoof by her solicitor had done all that was reasonably practicable to secure presentation before the 11th August - a finding that must reflect a subsidiary finding that the absence of any acknowledgement from the C.O.I.T. during that period did not serve to negate the probability that posting would achieve presentation, or at least did not do so before the last date by which it was reasonably practicable to take an alternative measure to secure timely presentation. Further it may be finding that the extension of the three month period to the 3rd September was reasonable. Unhappily we cannot use a stronger word than ` may ' and Mr Burles is correct in his submission that in terms the Tribunal did not focus upon that which was reasonably practicable before the 11th August, rather than on what was reasonably practicable after 19th August.

Overall, we cannot be satisfied that the Tribunal correctly directed itself as to the issues raised for its resolution by Section 67(2), that is, as to law. We have considered whether we have available to us the material whereby to substitute our own findings; we are satisfied that we cannot do so without usurping the function of the Tribunal. Thus we allow the appeal and we remit the preliminary issue as to jurisdiction for fresh resolution following a further hearing, whether by the same or a different Tribunal. We wish to emphasise that we are making no comment as to merits of the actual decision under appeal - resolution of the now identified underlying issues may or may not lead to the same end result.

Before leaving this matter, we have a need to address a particular line of argument that was initially at the forefront of the submissions of Mr Burles, namely that the Industrial Tribunal could and should have decided this matter in favour of the Respondents by reference to Capital Foods Retail Ltd v Corrigan [1993] 1RLR 430 , a decision of the Employment Appeal Tribunal sitting in Edinburgh. This case featured a similar jurisdictional point arising out of the following chronology:-

5th February 1992 . Dismissal of the Applicant by the Respondents.

25th March 1993 . Application posted to the C.O.I.T. (Scotland).

c5th May 1993 . Expiry of three month period.

27th July 1993 . It is discovered that the application had not been received.

4th August 1993 . The application is re-submitted, this time so as to be received.

The Industrial Tribunal decided the jurisdictional point in favour of the Applicant having expressly directed itself:-

"There is of course a presumption that what is posted will be delivered".

In allowing the appeal on the grounds of a misdirection as to law, Lord Coulsfield said at 432:-

"In the present case the Industrial Tribunal seem to have accepted that there is some sort of presumption that what is posted will be delivered, but have not expressly discussed the question whether reliance on that presumption was in the circumstances, reasonable."

In short, as here, that Industrial Tribunal had impliedly made a finding on the first issue in favour of the Respondents and had then failed to address the second and third issues as matters of fact, thereby not giving weight to the delays between 25th March and 5th May (second issue) and between 5th May and 4th August (third issue) notwithstanding that, per the EAT at 431, in the ordinary course an application to the Central Office if Industrial Tribunals (Scotland) would be acknowledged immediately and, indeed, it might be anticipated that the employers' answers to the application would be available within a period of less than five weeks from the presentation of the application.

In the result we have in this decision first, the identification of a misdirection as to law (viz., the effective elevation of at best a rebuttable presumption of fact into a presumption of law); and, second, a disposal by the Employment Appeal Tribunal on the basis of the available facts so as to decide the jurisdictional point in favour of the employers. Thus far, we have, respectfully, no reason to demur.

What has concerned us about the decision and its deployment before us is as follows. In the course of the judgment there was citation of a further passage from the judgment of Brandon L.J. in Wall's Meat Co Ltd v Khan, op. cit ., this time at page 60:-

"The performance of an act, in this case the presentation of complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant, or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information they should reasonably in all the circumstances have given him."

In condemning the decision of the Industrial Tribunal, Lord Coulsfield said at 432:-

"In our view ..... they failed to apply the proper test in accordance with the principles set out in the passage from the opinion of Brandon L.J. in Wall's Meat Co. Ltd v Khan supra quoted above".

In the result the headnote to Capital Foods Retail Ltd v Corrigan includes the passage:-

"The unexplained failure of an application to reach the Industrial Tribunal is not sufficient to satisfy the test in s.67(2) of the Employment Protection (Consolidation) Act unless all reasonable steps were taken to confirm that the application had been duly received. It is a matter of ordinary and prudent practice to employ some system of checking that replies which might reasonably have been expected have been received, and that the conduct of business is taking it normal course.

In the present case, the employee's solicitors did not employ any such check but had simply relied upon the assumption that the application had been duly presented. In doing so, they failed to take such steps as were reasonable in the circumstances and, accordingly, the test set out in s.67(2) was not satisfied."

In the further result, Mr Burles submitted that this decision taken in conjunction with admissions as to the lack of a checking system in Miss Heslop's office resolved the appeal; whilst Mr Carter did his best to interest us in a discussion as to whether any `impediment' was `physical' or `mental'.

In the judgment of this Tribunal:-

1. Wall's Meat Co Ltd v Khan is authority for the proposition that emerges from our earlier citations from the report, that is, that the issues raised by Section 67(2) are to be resolved by an Industrial Tribunal as a jury on the facts before it, with the subsection as the law, simple and unqualified by an overstay of case law.

2. With great respect, we do not accept that elsewhere in that decision, that is, in the passage cited, Brandon L.J. was or could be providing just such an overlay. As to this, we note that at page 60 the passage cited was prefaced by:-

"I have not found it necessary in order to decide this appeal, to examine the precise scope and limits, as a matter of law of the expression 'not reasonably practicable' ....."

and the judgment ended in the terms already quoted. It follows, we think, that in the passage cited he was not laying down principles so as to provide legal gloss, but was merely illuminating by way of example what may or may not be `reasonably practicable' in any given circumstances. It would, we think, be forensically astonishing and wrong if by way of this passage (which does not impinge upon its headnote), Wall's Meat Co Ltd v Khan in the event added to the case law, the strictures of Lord Denning M.R. notwithstanding - and did so in terms which, whilst intellectually impeccable are not such as to illuminate the task of a Tribunal as jury.

3. By the same token we are bound respectfully to question the reporting of Capital Foods Retail Ltd v Corrigan as purporting to provide yet more case law, whereas on proper analysis it is, we would suggest, an unexceptional decision reflecting basic principle and fact.

4. In tendering these views, we have reminded ourselves that the jurisdiction under question may be, and often is invoked by unrepresented applicants, the response may similarly be without legal advice and the decision in the event of dispute has an input from two persons `lay' as to the law. There is no advantage to anybody in adding mystique accessible only to a knowledgeable lawyer. Once the essential issues are identified what is wanted is a jury response.