London Underground Ltd v Mitchell [1994] UKEAT 291_92_2501

EAT
London Underground Ltd v Mitchell
[1994] UKEAT 291_92_2501 · 1994-01-25
MR JUSTICE TUDOR EVANS: This is an appeal by London Underground Limited against the decision of an Industrial Tribunal held at London (South) on the 19th February 1992 whereby on a preliminary issue the Tribunal extended the period for the Respondent to present his complaint that the Appellant had unfairly dismissed him.In paragraph 3 of the decision the Tribunal relate the evidence of the Respondent and make findings of fact based on that evidence. The findings of fact are these: first, that the Respondent complained that he had been unfairly dismissed by a letter from the Appellant dated the 21st March 1991 and that the application was date stamped as having been received at the Central Office on the 17th September 1991. A mere statement of those dates indicates that the period of 3 months prescribed by Section 67(2) of the Employment Protection (Consolidation) Act 1978 had expired before the complaint was received.The Tribunal found that the Respondent had been in prison between the 1st March and the 30th August 1991 for a Road Traffic Act offence of a grave nature. He had caused a death by an act of reckless driving.Secondly, it was found the Respondent, when in prison, was allowed no telephone calls and only two visits a week, that he did not discuss the dismissal letter with the Authorities because he did not believe that they could help him, that he did not know of the existence of a Prison Welfare Officer and that his Probation Officer was not allowed to visit him.It was found that the Respondent's only source of information was his uncle, a layman, who was simply advising the Appellant how to retrieve some past wages which were said to have been due to him. It was found that when the Respondent was released from prison he had difficulty with accommodation because his flat had been ransacked and that he was short of money owing to some difficulty with the DHSS.In the first or second week of September, that is within a very short time of his release, he went to see Mr Bloor, who had been his Manager when he was employed by the Appellants. Mr Bloor, as the Tribunal found, advised him to go to a Citizens' Advice Bureau or a Law Centre, in order to be advised on the question of his dismissal. He went to one Law Centre but he was offered an appointment a week and a half ahead. He went to another at New Cross with the same result. Finally, on the 13th September 1991, he went to the Lewisham Law Centre where he was informed of the three month rule and an application was submitted on that day. The Tribunal found that until the 13th September, the Respondent was ignorant of his rights, that he did not realise that he had any rights or how to exercise them nor did he know that there was a time limit.In paragraph 4 of the Decision, the Tribunal rehearsed the arguments advanced on behalf of the Appellants and Respondent and then concluded in paragraph 5 as follows:
"We now come to our conclusion in the matter. We have heard the Applicant give evidence and have observed his demeanour in the witness box."
interjecting there - it is quite clear from that sentence that the Tribunal was accepting the Respondent's evidence - paragraph 5 continues:
"We have listened carefully to what has been said on his behalf which we accept. We find that in the circumstances of this case it was not reasonably practicable for the complaint to be presented before the end of the period of three months."
Section 67(2) of the Employment Protection (Consolidation) Act 1978 provides, in so far as the language is material:
"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."
Miss Low on behalf of the Appellants submitted to us, correctly, that there are two stages leading up to a decision in the subsection. First, was it reasonably practicable to lodge the complaint within the three month period? Secondly, if it was not reasonably practicable, was the application made in a reasonable time thereafter? As part of the second question the Tribunal must decide if the complaint was lodged within that reasonable time. Miss Low has submitted to us, on what we may call Stage 1, that the only finding made by the Tribunal was to be found under paragraph 3(d) of its decision that until the 13th September the Respondent was ignorant of his rights, and the Tribunal does not find if it was not reasonably practicable to submit the complaint. Counsel has drawn our attention to the well known case of Riley v. Tesco Stores Ltd & another [1980] ICR 323 where, incidentally, it is emphasised as in so many of these cases, that it is a question of fact for the Tribunal in this type of case to reach its decision, where Stephenson LJ delivering the first judgment observed at p.328:
"Where an employee alleges ignorance of his right or of how and when he should pursue it, or is under some mistaken belief about these matters, an industrial tribunal must look at the circumstances of his ignorance or belief and any explanation that he can give for them, including any advice which he took, and then ask itself whether the ignorance or mistake is reasonable on his, or his advisers' part, or whether it was his, or his advisers' fault: if either was at fault or unreasonable, it was reasonably practicable to present the complaint in time . . ."
Counsel has submitted to us that the process indicated in the passage which I have just read was not gone through by the Tribunal.Mr O'Brien, on behalf of the Respondent, emphasises, as we indicated a moment or two ago, that these cases are really all involved with findings of fact, as a very large number of authorities demonstrate. As to Stage 1, he points out correctly, that there is a finding of fact that the Appellant was ignorant of his rights until the 13th September and that covers the three month period. In our view, Mr O'Brien's submission is well founded. There was a finding that for the three month it was not reasonably practicable for the complaint to have been presented and that that period continued until the 13th September.Thereafter Stage 2 has to be considered, that is, whether it was reasonably practicable for the application to be presented in a reasonable time. With respect to this stage of the case, the facts are that on the 13th September the Respondent, first of all, went to the North Lewisham Law Centre when an application was made immediately. Up until then he had, first of all on his release from prison, consulted Mr Bloor. He had then gone to two Citizens' Advice Bureaux and it is clear upon the finding that, once released from prison, the Respondent acted with all due expedition in the pursuit of advice.A third submission was made by Miss Low that the Tribunal misdirected itself in stating that their decision was a matter of discretion. This is inferred by Counsel from paragraph 2 of the Reasons where it is said:
"He [the Respondent to the appeal] requested the Tribunal to exercise its discretion under Section 67(2) of the 1978 Act on the grounds that it would be reasonable to do so."
Counsel submitted that it is clear that it was the submission made on behalf of the Appellant in relation to discretion, which at any rate, partly led to the conclusion to which the Tribunal came.We have heard a good deal of argument as to whether the Industrial Tribunal does have a discretion. Mr O'Brien referred us to Dedman v. British Building & Engineering Appliances Ltd [1974] ICR 53 and James W Cook & Co v. Tipper [1990] ICR 716. It is clear, specifically from the judgment of Lord Denning MR at page 61 of the report in Dedman, that there is, when all the facts have been found, a discretion which has to be exercised by the Tribunal in deciding whether or not to exercise its powers under the subsection to extend time.We have paid careful attention to the submissions which have been made to us by Miss Low, on behalf of the Appellants, we have come to the conclusion that, although the Tribunal could have spelt out their reasons in greater detail, nevertheless, all the facts were found and the conclusion to which the Tribunal came was expressly stated on Stage 1 and can be inferred in relation to the question at Stage 2.In all the circumstances we have come to the conclusion that this appeal is without substance and it must be dismissed.