Middle (t/a Hazlemere Hair) v Festa [1994] UKEAT 744_93_0505

EAT
Middle (t/a Hazlemere Hair) v Festa
[1994] UKEAT 744_93_0505 · 1994-05-05
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Reading on the 18th June and 26th July 1993. By a majority the Tribunal decided that it was not reasonably practicable for the application complaining of unfair dismissal of Mr Festa against his former employer, George Middle t/a Hazelmere Hair, to have been presented before the end of the period of 3 months beginning with the effective date of termination of the employment. The majority also decided that the application had been presented within such further period as the Tribunal considered reasonable.As a consequence of that decision the Tribunal had jurisdiction to hear the complaint on its merits.The decision was notified to the parties on the 16th August 1993. The Respondent to the application, Mr Middle, was dissatisfied with the decision and appealed by Notice of Appeal dated the 14th September 1993.This is yet another case where problems have arisen from the time limits set for presenting an application to the Industrial Tribunal. The relevant provision is contained in Section 67 of the Employment Protection (Consolidation) Act 1978 subsection (1) provides:
"(1) A complaint may be presented to an industrial tribunal against an employer (in this Part referred to as the complainant) that he was unfairly dismissed by the employer."
Subsection (2) is relevant to this appeal. It provides:
"(2) 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 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 provisions of subsection (4) are not relevant.The Tribunal set out the relevant facts in their decision. Mr Palmo Festa, the Applicant in the proceedings and the Respondent to this appeal, complained that he had been unfairly dismissed as Manager of a gentleman's hairdressers shop in which he was employed by the Appellant, Mr Middle. The date of dismissal was the 22nd November 1992. Mr Middle accepts that he dismissed Mr Festa. He denies that he did so unfairly. His reason for dismissal was that Mr Festa he alleged, was guilty of gross misconduct.The matter before the Industrial Tribunal was a preliminary point as to whether the application was presented in time. As the dismissal took place on the 22nd November 1992, the last day for presenting the application was Sunday, 21st February 1993.The Tribunal heard evidence from Mr Festa's solicitor, Mr Jason Fenney, about the circumstances in which he had been consulted by Mr Festa and in which the application came to be presented.Mr Fenney was originally consulted by Mr Festa in December 1992. Mr Festa was concerned at that stage about the allegations made against him by Mr Middle. He was seeking advice about possible Police proceedings. Mr Fenney gave him general advice to the effect that he might have a claim for unfair dismissal. An appointment was made, after correspondence, for Wednesday, 17th February 1993, the first mutually convenient date. Mr Fenney was aware of the time limit. He appreciated that, although he did not have much time in hand, there were still a few days left. He saw Mr Festa. He completed the application in the form IT1. He gave evidence, which the Tribunal accepted, that a covering letter was prepared addressed to the Secretary of the Industrial Tribunals, 93 Ebury Bridge Road, London, SW1. His evidence was that the letter was posted by first class pre-paid post at 5.15 pm on the evening of the 17th February. The Tribunal inspected the covering letter and envelope and confirmed that the letter was properly addressed and the envelope was duly franked, first class post, by the franking machine in Mr Fenney's office. Mr Fenney's evidence was that he expected that the letter would arrive at 93, Ebury Bridge Road, on at least the second working day after posting. Friday 19th February 1993. He had in mind the Practice Direction about postal service, published in [1985] 1 Weekly Law Reports 489 . He was surprised to learn subsequently that the application was stamped as having been received by the Industrial Tribunal on Monday, 22nd February 1993, one day out of time. He was confident that when the letter was posted it would have arrived before the time limit expired.Mr Fenney's evidence was tested by cross examination by Mr Jerrett, who appeared for Mr Middle both in the Industrial Tribunal and on this appeal. In cross examination Mr Fenney conceded that he had not considered sending the application by other means. He had not considered sending it by fax, or sending a copy of the application to a local solicitor with offices near the Tribunal with instructions that it to be delivered "by hand", and with delivery to be confirmed by telephone call back to Mr Fenney. Although Mr Fenney's office was only half an hour from the centre of London by train, he had not considered sending either a member of the staff or Mr Festa himself, to London to make personal delivery to the Industrial Tribunal. His evidence was that he was confident that the letter with the application would arrive through the post in time.Mr Jerrett made submissions that the presentation of the application by post was only one of several methods open to Mr Fenney at the time, and, whilst it was not a wholly unreasonable expectation that it would arrive in time by post, delays in the post were not unknown. The Practice Direction on which Mr Fenney relied made it clear that, if the postal method was adopted, it was at the risk of the sender. He submitted that there were other methods at his disposal by which he could, and should, have effected presentation. Having regard to those other matters it was reasonably practicable for the application to be presented within the three month time limit.Before the Tribunal made its decision in the light of Mr Fenney's evidence and Mr Jerrett's submissions there was an adjournment to make further enquiries. The enquiries were made by Mr Festa's solicitors as to the procedure at the Central Office for dealing with post over the weekend. The Tribunal were not clear initially whether post arriving on a Saturday morning was stamped with Saturday's date or stamped as having been received on Monday. They wanted further information on this point.During the adjournment an unusual aspect of the case emerged. The Originating Application, the covering letter and the envelope were all stamped as having been received by the Industrial Tribunal on Monday 22nd February. The Originating Application was further stamped as having been received at Bury St.Edmunds, where it had been forwarded, on the 24th February. A close examination of the stamps of the 22nd February showed that the documents had been received, not at 93, Ebury Bridge Road, to which they had been sent by Mr Fenney, but at the London (South) Regional Office at Croydon. Correspondence, produced to them between Mr Festa's solicitor and the Royal Mail, disclosed further information. At the Central Office mail arriving on Saturday is segregated from Monday's mail and the two batches are stamped with Saturday's and Monday's dates respectively, so that it is possible to identify whether or not a letter arrived on Saturday or Monday. That system does not operate at the Regional Office in Croydon, so that no such distinction can be made. The Royal Mail were unable to offer any explanation as to why the letter was delivered to the London (South) Office in Croydon rather than 93, Ebury Bridge Road. The Tribunal found that the letter was properly addressed and there was no marking on the envelope to indicate that it was re-addressed.Before coming to their decision the Tribunal referred again to Mr Jerrett's submissions that there were adequate alternative methods of presenting the application which could easily have been employed. They would have ensured that the application would have arrived in time.Mr Fenney in his submissions relied on the decision of this Tribunal in St Basil's Centre v. McCrossan [1991] IRLR 456 in relation to the presentation of an application through the post.The Tribunal then came to their decision. The majority based their decision on the St Basil's Centre v McCrossan case. They said:
"it was not reasonably practicable for the application to have been presented within time and that it was presented within such further time as the Tribunal considered reasonable."
The dissenting member was of the view:
"that presentation by post was only one of a number of alternatives open to the applicant's solicitors [Mr Fenney] and that whilst Mr Fenney was probably justified in expecting the application to be delivered in time, there were other means available to him by which the application could have been delivered to the Central Office within time and that it would have been reasonably practicable to have used one or other of those means. The minority view was that it was reasonably practicable for the application to have been presented within time."
On the appeal clear and full arguments have been presented by Mr Jerrett on behalf of Mr Middle and by Mr Van Tonder on behalf of Mr Festa.Mr Jerrett repeated the arguments that he had made before the Industrial Tribunal. He submitted that there was a point of law. The point of law was that the majority of the Industrial Tribunal had erred in confining their consideration of reasonable practicability to the issue of postal delivery and to the question whether there was an expectation of delivery of first class post within the statutory time limit of three months. He submitted that the Tribunal erred in law because they did not consider whether the procedures within Mr Fenney's office, and between Mr Fenney and the Applicant which led to a delay from December 1992 until 17th February 1993, were reasonable in the circumstances, so that it might have been reasonably practicable to present the application at an earlier date than the 17th February and within the statutory time limit. There was no evidence offered to the Tribunal to justify that delay. He submitted that the Industrial Tribunal failed to consider whether it was reasonably practicable to present the application to the Tribunal by other means, such as fax or "in person". He submitted that the Industrial Tribunal had not considered whether, after Mr Fenney had taken the decision to submit the application by post, it was reasonably practicable, reasonable or prudent for him to have telephoned the Industrial Tribunal to ascertain whether the application had been received before the expiration of the three month period. If this course had been adopted, Mr Fenney would have been told of the non-arrival of the application. It would then have been reasonably practicable for him to take one of the alternative steps, such as fax transmission or personal delivery to ensure presentation within the time limit. Mr Jerrett reinforced his submissions on these points by referring to the notes in the White Book under Order 6 Rule 7 and to the decision of the House of Lords on the test of what is reasonably practicable in Marshall v. Gotham Co Ltd [1954] AC at page 360. He also referred to two further decisions, the St Basil's case, (supra) and to the decision in Capital Foods v. Corrigan [1993] IRLR 430.Summing up the arguments for the Appellant Mr Jerrett's case was that it was at all material times reasonably practicable for Mr Festa and his solicitor to have adopted courses of action which would have ensured delivery within the time limit. The Industrial Tribunal, in its majority decision, had erred in law in failing to have proper consideration to those alternative courses of action. The Tribunal's approach was too narrow. Instead of just looking at the question of the reasonable expectations of Mr Fenney in using first class post, the Tribunal should have looked further to see whether the application could have been presented at an earlier date or by other means.Against that, Mr Van Tonder has submitted that the Tribunal came to a decision with which this Tribunal cannot interfere, because the decision was a permissible option open to the Industrial Tribunal. Mr Van Tonder's case was that the central issue before the Industrial Tribunal was whether Mr Fenney was reasonable in his expectation that the application would have been delivered to the Office of the Industrial Tribunal by Friday 19th February. The question is what would a reasonable solicitor have expected or might reasonably have expected. If that belief was reasonable, as the Tribunal held it was, then it followed that it was not reasonably practicable to present the application within the period of three months, That finding should not be interfered with on an appeal to this Tribunal, unless it can be shown that the finding was not a permissible option on the evidence. Mr Van Tonder referred in support of this proposition to the cases of Piggott Brothers & Co Ltd v. Jackson [1991] IRLR 309 CA and to Hereford and Worcester County Council v. Neale [1986] IRLR 268 CA.The majority found that Mr Fenney's expectation was reasonable. Unless it can be shown that that decision was not permissible, this Tribunal has no jurisdiction to interfere with it.Mr Van Tonder dealt with the points made by Mr Jerrett, submitting that, having found that Mr Fenney's expectation was a reasonable one, the Tribunal were not bound to consider the other steps which Mr Fenney or Mr Festa might have taken to present the application at an earlier date or to ensure that the application was received at the Central Office after it had been posted.We have considered the rival submissions. It is possible that another tribunal would, by a majority or even unanimously, have reached a different decision than the Industrial Tribunal in this case. It is possible, that if the Members of this Tribunal had been hearing this case, they might have come to a different decision than the majority of this Industrial Tribunal. That possibility, however, is not sufficient to give this Tribunal jurisdiction. The jurisdiction of the Appeal Tribunal is confined to questions of law. The question whether it is or is not reasonably practicable to present an application for unfair dismissal before the expiration of three months from the effective date of termination of employment is essentially a question of fact and degree. This Tribunal will only interfere, and can only interfere, with such a decision if the tribunal entrusted with that decision has misinterpreted the Statutory provisions, or has misapplied the provisions to the facts or has reached a decision on the facts which cannot be supported as a permissible option, or as a decision which a reasonable tribunal would have arrived at. We are satisfied in this case that the majority came to a decision open to them on the evidence. It was a permissible option. We should not interfere with that decision. We dismiss this appeal.