Vax Appliances Ltd v Chamberlain [1994] UKEAT 422_92_2804

EAT
Vax Appliances Ltd v Chamberlain
[1994] UKEAT 422_92_2804 · 1994-04-28

JUDGE J HULL QC:

Ms Chamberlain was employed by Vax Appliances Limited, the Respondents below, the Appellants here, I will call them "the employers", from 29th June 1987 at premises in Droitwich where she was the District Sales Manager; so, if I may call her this, a business woman, a person familiar with administration details and so forth, of course not somebody who would be regarded as rather helpless in business matters.Events took place which we are not concerned with in any detail, but which led Ms Chamberlain to think that she was entitled to regard her contract as repudiated, to put it in lawyers' language, or to put it in another way, that she was being constructively dismissed. She accepted that, again to use lawyers' language, as repudiating her contract and she left her employment on the 31st July 1991 saying, although this is one of the matters which will be contested if the Industrial Tribunal continue with their inquiry, that she was constructively dismissed and unfairly dismissed on the 31st July 1991. She, within a week, knew of her right to claim compensation or other remedies in respect of unfair dismissal, about a week after that, on the 14th August apparently, was advised by the Department of Employment at Leicester. I will read what was said by the Tribunal about this because of course they are the judges of fact and they are the people who have responsibility in this matter. They say:
"She knew of her right to claim unfair constructive dismissal by no later than 6 August 1991. We are satisfied that the Local Department of Employment Office in Leicester first advised her to obtain a form from Ebury Bridge Road, London and, when one did not arrive, sent her a Form IT1 Originating Application, with the perforated instruction sheet attached. We find she was told to send the completed form to Leonard House, Bradford Street, Birmingham which is an address for ACAS. [the Conciliation Service]. We find she did so on or about 22 September 1991.
Having heard nothing, the applicant rang the Bradford Street number and was referred back to the Department of Employment. That was on 21 November and on 25 November she was given a further Form IT1 which she then completed and posted correctly."So that was her complaint of unfair dismissal and, in due course, that having been belatedly registered on the 5th December 1991, the employers presented their appearance, Form IT3, on the 8th January 1992, and they took the point that the application was out of time and that was what had to be decided by the Industrial Tribunal. They sat at Birmingham on the 8th April 1992 under the Chairmanship of Mr Haslam, with two Industrial Members, and they correctly say:
"We have to consider whether the applicant has just cause or excuse for that delay."
they then set out the facts which I have referred to, and they go on to say:
"We find that it was reasonable, if given a specific instruction to do so, for the applicant to have sent the original form to the Bradford Street address rather than as instructed in the notes attached to the Form IT1. We further find that the failure to enquire about the matter for two months is excusable"
there, of course, they were referring to the failure to make any telephone call or any other enquiries about the fate of this application from September until November.
"We find that is excusable since such delays are increasingly common for Government Departments to deal with such matters. We further find that the delay after the discovery of the wrong address, was not unreasonable.
We find in this case, that Ms Chamberlain has just cause or excuse for not presenting the Originating Application within the prescribed time, it was not reasonably practicable to does so. The delay, after the expiration of the 3 months period, was not unreasonable. We have jurisdiction to hear this claim."Now I must refer to the Statute, under Section 67(2) of the Employment Protection (Consolidation) Act 1978 it is provided that:
"Subject to subsection (4), 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 [31st July] 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."
So that that was what the Tribunal had to be satisfied of. Subsection (4) is not material that refers to employment which is terminated by notice. So the Tribunal had to ask themselves whether it was reasonably practicable for the complaint to be presented within 3 months and they set out their findings of fact which I have mentioned.It is noteworthy that in making those findings of fact they relied upon the evidence of Ms Chamberlain, which they had heard. They did not, apparently, have any evidence corroborative of that. They did not, for example, say "we cannot accept your evidence without seeing the post books at ACAS or at Central Office, this story which you are telling us is not corroborated;" they accepted her word.Mr Scuplak, who appears today for the employers, makes three specific complaints. First of all, he says the decision was perverse, that it is such a decision as no tribunal, correctly directing themselves as to the law, could arrive at unless they made some serious mistake. It may be that the mistake is obvious, in which case it will be possible to say, there is a mistake of law. Or it may simply be that looking at it one says "my goodness, that must be wrong". In other words, they either acted on some basis which they do not disclose, which was wrong and they made some mistake: or they are acting on an erroneous view of the law. He says that when Ms Chamberlain obtained her IT1, her form of Originating Application, it had, attached to it by perforation, the instruction sheet, the "Notes for Guidance"; and as he rightly points out, that Notice expressly says that the Originating Application must be presented within three months, must be presented to the Central Office of Industrial Tribunals, and gives the address and the telephone number. So, he says, when Ms Chamberlain was told that she must send it to the address for ACAS in Birmingham that was something she should not have relied on, she should have relied on what was written in the Notes, she should have read them carefully and if she had done then inevitably, either she should have complied with the Notes, or at any rate she should have made further enquiries. He refers to the case of Dedman v. British Building & Engineering Appliances Ltd [1973] IRLR 379. That is now a case of considerable seniority and of course great authority, it is a well known case in the Court of Appeal but the facts were, in that case, quite different. I read from the short statement of facts: he received a letter from his employers - in those days I should say that the time limit was only four weeks - terminating his employment and he was given a cheque covering his salary for the full month of May plus one month in lieu of notice, so of course that raised the question of when the effective date of termination of his employment was. I will not go into all the ramifications there but that is a well known bone of contention. Mr Dedman knew he had some rights under the Industrial Relations Act but he did not know that he had to present his claim within 4 weeks. A week after his dismissal he went to his solicitors, and they did not advise him that he had to present his claim within 4 weeks. Mr Dedman did not present his unfair dismissal claim until 26th June 1972. That was more than 4 weeks after he had, as it was found, been dismissed. The Industrial Tribunal held that the effective date of termination was not until 31st May and, therefore, that his complaint was within the 4 week period. On appeal the Industrial Relations Court held that the complaint was out of time and then there was an appeal to the Court of Appeal. In that case all that was actually decided was when the effective date of termination, but there were dicta in the Court of Appeal which have always been regarded as of great importance as to how tribunals should approach their duties. Stamp L J said:
"In my judgment the fact that he did not know that the necessary application had to be made in four weeks was wholly irrelevant to the question whether it was practicable or `not practicable' for the complaint to be presented before that period had expired."
If there was nothing to discourage, impede or prevent him presenting the complaint at some time during the 4 weeks, how could it be said that it was `not practicable' for him to do so? That was the view of Stamp L J. Not only was this man represented by solicitors, but there was no impediment to his presenting it. Nothing to discourage him, impede or prevent him, from presenting his application. Scarman L J said:
"But what, if, as here, a complainant knows he has rights, but does not know there is a time-limit? Ordinarily, I would not expect him to be able to rely on such ignorance as making it impracticable to present his complaint in time. Unless he can show a specific and acceptable explanation for not acting within four weeks, he will be out of Court."
It seems to us that that is a quite different case. Mr Dedman was represented by solicitors and there was nothing whatever to prevent him from gualifying within the 4 weeks except wrong advice from the solicitors, or wrong conduct of his case by the solicitors. Nobody misled Mr Dedman or said "actually the time limit is six months", or said "you must send this to the Ministry of Defence" or "to some other body", so the case is completely different. Needless to say there is no question of us doubting the authority of what is said by the learned Judges of the Court of Appeal, but those were dicta relating to a quite different case and they were only dicta, because, as I say, the actual bone of contention in that case was whether Mr Dedman was, or was not, out of time. We have no doubt that industrial tribunals will always do well to pay very careful attention to those dicta when they come to decide points such as this.Mr Scuplak then referred us to Riley v. Tesco Stores Ltd [1980] IRLR 103 CA. That was a case where the complainant had been dismissed on the grounds of the employer's belief of dishonesty, stealing from her employers. She went to the Citizens' Advice Bureau and, according to her, they told her that she could not proceed with her complaint until after criminal proceedings which had been brought against her, which in due course put her hopelessly out of time. The debate appears to have been whether, as was suggested by distinguished Counsel, the CAB should have been joined as a party so that they could explain themselves, or at any rate should have been invited to give an explanation, before any finding was made about the advice they had given. It was said by Stephenson L J:
"Whatever the precise extent of the rules or whether or not the proper procedure would be for the tribunal to reach a provisional conclusion, and then invite the third party, the bureau, to appear and be heard on review of the decision, it seems to me that it would be unjust for the Industrial Tribunal so to regulate its procedure as to arrive at an adverse conclusion criticising a third party, particularly a third party doing such valuable work as Citizens Advice Bureaux do in this country, without giving that third party an opportunity to put its side of the case. I would not lay that down as an invariable rule, nor would I go so far as to accept Mr Morrison's submission that no Tribunal should in any case accept the uncorroborated evidence of an employee as to what was said and done between her and any third party. Industrial Tribunals are well able to see that no injustice is done without too much guidance from superior courts, but this case has brought into the light, in my judgment, the need for Industrial Tribunals to consider whether they should not give a third party, implicated in some fault of ignorance or mistaken belief by an employee's evidence, an opportunity of answering what is said about them in their absence, if justice is to be done in a case of this kind."
So that again was concerned with what appears to us to be a quite different point. Whether, when it is said that there has been wrong professional advice, or wrong advice from expert helpers, an industrial tribunal should give them an opportunity to be heard.Certainly we accept that it is, in general, wrong, for any court or tribunal to criticise third parties who are not represented, it can be very wounding and very inaccurate. The tribunals have to go on what is said before them and the evidence which they hear and they should be very slow to criticise third parties without hearing those third parties.Then Mr Scuplak referred to the case of Capital Foods Retail Ltd v. Corrigan [1993] IRLR 430, a case in the Scottish EAT. That was a case on rather arresting facts:
"Miss Corrigan was dismissed by the appellant company with effect from 5th February 1992. On 19th March [well in time] she consulted solicitors and instructed them to seek a remedy for unfair dismissal from the Industrial Tribunal. The solicitor immediately prepared an application. On the following day, he dictated a covering letter which was subsequently typed and dated 25 March. According to the solicitor's evidence, the letter and application were duly despatched to the Central Office of Industrial Tribunals (Scotland). At that time, about five weeks of the three-month period for presenting an unfair dismissal complaint remained.
Thereafter, nothing happened until 27 July [so that nothing had been heard for 4 months] when Miss Corrigan again consulted the solicitors and the question of what had happened to the application to the Industrial Tribunal was raised. It was then discovered that there had been no acknowledgement from the Tribunal that the application had been received, but nor had it been returned as undelivered by the Post Office. On 4 August, a copy of the original application was submitted to the Tribunal along with the covering letter of 25 March [it appeared eventually that the original had not been duly delivered through the post].The Industrial Tribunal held that, in the circumstances, the complaint was not time-barred and should be considered on its merits. According to the Tribunal: `There is of course a presumption that what is posted will be delivered. Nevertheless . . . we accept that the steps said to have been taken on the applicant's behalf were taken at the time they were said to have been taken. We therefore find that it was not reasonably practicable for the applicant to submit her application within the statutory permitted period of three months and that she did submit it as soon as was reasonable following the expiry of that statutory period."and what the Employment Appeal Tribunal held, I just refer to the headnote, was:
"The Industrial Tribunal had erred in holding that it was not reasonably practicable within the meaning of s.67(2) of the Employment Protection (Consolidation) Act for the respondent employee to present her unfair dismissal application within the statutory three-month period . . . The Tribunal had erred in accepting that there is a presumption that what is posted will be delivered without expressly discussing the question of whether reliance on that presumption was reasonable in the circumstances.
The unexplained failure of an application to reach the Industrial Tribunal is not sufficient to satisfy the test in s.67(2) . . ."That was a case in which the Applicant had consulted the solicitor and the solicitor had made a timeous application. Almost unbelievably, for a solicitor, when no acknowledgement was received nothing was done to chase the matter up; it was simply left. Any solicitor would, in my belief, not be able to say that he had done his duty to his client until he was quite satisfied that something was to be served was acknowledged. Just to leave the matter for month after month until the client eventually came in and said "what's going on?" and then discover that there was no acknowledgement is quite plainly conduct which is not expected of a solicitor. It clearly represents a failure to protect the client's interest. It is a quite different case from the present, but Mr Scuplak relies upon it because he says, if the solicitors there should have enquired of the Central Office, not having heard anything, how much more should Ms Chamberlain have enquired because she had actually written to the authority.Those are the contentions that Mr Scuplak makes and we have to remind ourselves that we are here simply to hear points of law, as of course Mr Scuplak recognises, we are not concerned to make our own findings of fact. Unlike other tribunals, such as the Court of Appeal or the Crown Court, we have no jurisdiction to entertain appeals on fact, we are concerned simply with points of law. Accordingly, we say, as we must say, that questions such as whether a witness is to be believed or not, whether a witness acted reasonably or not, are entirely matters for the tribunal. The Tribunal has the benefit of seeing the witnesses and the tribunal with its Industrial Members is well equipped to say whether somebody has done what is reasonably practicable or not. Only if the decision of the Tribunal is so irrational that it appears to us to be perverse are we entitled to interfere, or, as I say, if there is some error of law.What this Tribunal found was that this lady was grossly misled. She was told by an official to send her application to the Conciliation Service (ACAS) in Birmingham and she did so. It is said that she should have read the notes which were attached to the form. It is said that having sent it off in September she should not have delayed until November to make her telephone enquiry. It is said that that was unreasonable behaviour. Those are entirely matters for the Tribunal. It is entirely for the Tribunal to say whether they think it reasonable, when an official gives clear advice to a person, for that person to act on that advice and not to trouble with reading, any inconsistent instructions which are given on the form or to take it up with the official, and say, "look, that is not what it says here". It may be that most tribunals would take the view that a particular piece of advice, given "over the counter" by, perhaps, a minor official, not skilled in advising, was something which should not be relied on. That is entirely a matter for the industrial tribunal. It may be, on the other hand, that they will think that somebody who has been misled is entitled to rely on what was said to them; again, entirely a matter for the tribunal. The circumstances invariably differ one case from another. We can see no reason in law why this Tribunal should not have found that Ms Chamberlain was entitled to act on the advice which was given to her. The Tribunal then find that it was reasonable for her not to take any action for two months. She, of course, is not a solicitor. She had sent the papers to the address that she was told to send them to and she had no reason to suppose they had not arrived. It is, it seems to us, quite a different case from the case of the solicitor acting for a party who would normally expect to see an acknowledgement of service, promptly and within the ordinary limits of time which one would expect. It was of course for the Industrial Tribunal to say whether that, in the circumstances of the present case, was an important difference or not - whether the Tribunal thought that it was reasonable or unreasonable for this lady to wait for two months before she took the matter up with ACAS and then, at last, received correct advice. We ask ourselves, why should they not decide that point? They have decided it, in her favour, they have decided that she acted reasonably throughout. It is said that they should not have accepted this lady's word without looking at post books or other evidence to corroborate it, and that that was unreasonable. We answer that with confidence, that it is for any court or tribunal to decide what evidence they accept and what they reject. It is for the Industrial Tribunal and not for us to say whether they do or do not feel able to accept the evidence of a particular witness when it is corroborated or not corroborated. That is a task which is carried out by ordinary courts and tribunals every day of the week and it is not evidence of an unreasonable approach that this Tribunal decided that they could safely rely on Ms Chamberlain's evidence and say that she did, indeed, act in the way that she said that she did, and that that was reasonable.These, in our view, are all findings of fact and matters of discretion for the Tribunal themselves and it is not for us to say that we would have reached, or might have reached, a quite different conclusion in any case of fact. It may well be as a hypothetical matter that a different tribunal might have reached a different conclusion. It may be, that we ourselves would have reached a different conclusion. Questions of fact are the sole responsibility of the Industrial Tribunal. We are unable to say that there is any error of law disclosed by the findings and the conclusion of this Industrial Tribunal. That is enough to dispose of this case and therefore we did not call on Ms Chamberlain and we are content to say that this appeal must be dismissed.