Jewsons Ltd v Rowney [1994] UKEAT 705_93_1102

EAT
Jewsons Ltd v Rowney
[1994] UKEAT 705_93_1102 · 1994-02-11

JUDGE LEVY QC :

Section 67 of the Employment Protection (Consolidation) Act 1978 provides in subsection 2 that an industrial tribunal cannot consider a complaint by an employer on the grounds of dismissal unless it is presented to the Tribunal before the end of the period of 3 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 3 months.We have heard today an appeal by Jewsons Ltd against the decision of the Manchester Industrial Tribunal delivered on 8 June 1993 where the Tribunal unanimously decided that the Tribunal had jurisdiction to hear the Applicant's complaint of unfair dismissal, because the Applicant has satisfied them that it was not reasonably practicable for the complaint to be presented within the three month period.The basis of the appeal presented by Mr Norbury for the employers is that the facts as found by the Tribunal did not lead anyone to understand the reason why they had found it was not reasonably practicable for the complaint to have been brought within the appropriate period. He has referred us to the authority of Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119 and within that authority to the decision of Mr Justice Browne-Wilkinson in Bodha v Hampshire Area Health Authority [1982] ICR 200 where Mr Justice Browne-Wilkinson was looking at a case where there had been no proceedings brought because the Applicant had not concluded the internal hearings.We accept Mr Norbury's submission that the decision below is insufficiently precise for us to know, or for anyone to know, on what facts the learned Tribunal found that it was not reasonably practicable for Mr Rowney to bring his case as provided by the statute. We think it helpful to remind ourselves that it is not only the fact that there were internal procedures going on, but it is not clear from the position in the decision as to what Mr Rowney knew of his rights under the Act or otherwise. In that connection, there is the authority of Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53 and the well-known passage of

Lord Justice Scarman at the end of that decision which reads:

"Contrariwise, does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion, no. It would be necessary to pay regard to his circumstances and the course of events. What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would not be appropriate to disregard it, relying on the maxim "ignorance of the law is no excuse." The word "practicable" is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance. But what if, as here, a complainant knows he has right, but does not know that 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 [it is now 3 months] he will be out of court."
It seems to us that there should be findings of fact below which shows exactly why the Tribunal held that it was not reasonably practicable for an applicant to bring his proceedings in time: that is missing here. We do not feel able to say one way or the other whether it was reasonably practicable for Mr Rowney to bring his complaint in time and we think the only thing we can therefore do is to send this back to another Tribunal to consider the application afresh, bearing in mind that this is a case where the primary reason apparently is that there were internal procedures going on as in Bodha's case, if that was all that prevented the timeous commencement of proceedings, then Mr Rowney may be in difficulties but there may be wider grounds on which Mr Rowney may be able to persuade the Tribunal that, in the circumstances of this case, it was not reasonably practicable for him to bring his proceedings in time.Accordingly to that extent and to that extent alone we allow this appeal.