Housam v Appleby Slag Reduction Ltd [1994] UKEAT 783_92_2504

EAT
Housam v Appleby Slag Reduction Ltd
[1994] UKEAT 783_92_2504 · 1994-04-25

JUDGE HULL QC :

This is an appeal against two decisions of Industrial Tribunals, by Mr Housam. Mr Housam was a truck driver employed by the Respondents Appleby Slag Reduction Ltd and he was elected as a shop steward and safety representative by his colleagues. His employment began on 5 April 1983. He was employed at Scunthorpe and evidently his work lay with British Steel. It was after 8 years that he was elected shop steward.On 24 October there came an important incident. Mr Housam took photographs of some scaffolding in the British Steel Works. He had been, apparently, expressly forbidden to do that and there was therefore a rebuke from management. He admitted that he had defied an order. He justified his behaviour on the basis that he was endeavouring to safeguard his members' rights and in particular he was attending to the question of safety. That was dealt with on that occasion, as the Company said, by suspension. He was sent home straight away after those admissions.So far as the employers were concerned, that was the start of disciplinary proceedings. So far as Mr Housam was concerned, he apparently took the view that such behaviour on the part of his employers amounted to dismissal; so they were at cross-purposes. Mr Housam went off to the benefit authorities. He got himself income supplement the next day; and the employers appointed a disciplinary hearing for 28 October 1991. He failed to attend. He tells us that he did not receive notice of that first hearing and from that day on his wages were not paid. However, the employers were reluctant to proceed in his absence and they appointed another day on 4 November. They wrote to Mr Housam giving particulars of that hearing. We have been shown some papers and it appears that on 4 November Mr Housam did attend and we have been shown by Mr Bowers, who has appeared for the Respondents, a record of the hearing on that day. He was represented at the disciplinary hearing by union representatives and another gentleman who was present at his request. It appears to have been quite a full hearing and as a result he was dismissed; the note records:
"Mr Housam was summarily dismissed from today, 4th November for failure to carry out a reasonable instruction from his supervisor."
Mr P White (the union representative) lodged his appeal against this decision and Mr Glover (Assistant Works Manager) asked for the appeal in writing. In fact there was an appeal. Once again Mr Housam was well represented. The appeal took place on 8 November, the Chairman being Mr G A Thompson. Mr Housam had 3 or 4 union representatives and a friend and there were a number of representatives of management there. The appeal was heard in very considerable detail and the Chairman finally concluded:
"With all the evidence laid before me, which included previous Written Warnings to Mr Housam, I had no alternative other than to support the decision of the management to summarily dismiss Mr Housam."
Mr Housam, taking the view that he had been dismissed on 24 October, was apparently in no way effected by the contrary views which had been put forward. As he has declared to us today with considerable forcefulness - how could he be suspended? He was dismissed. He was sent home, he says. On 25 October he put in his first application to an Industrial Tribunal. We have been shown that as part of the bundle of documents which Mr Bowers tells us were before the Tribunal, but are not with our appeal bundle. In that application he said that he had been dismissed on 24 October and he complained that he had been unfairly dismissed in the events which I have referred to. That appears to be dated 25 October and it said that his employment began in April 1983 and ended on 24 October 1991; so that was the first application.Mr Housam thereafter was in touch with his trade union. There is a letter from the union setting out his position (page 42 of our bundle) and that tells him:
"You are entitled by law to claim unfair dismissal. To do so an application for an Industrial Tribunal hearing has to be made. You must make the application within 12 weeks from your last day of employment. If you fail to apply within this time you will lose your right of appeal.

A claim must be made on Form IT1..."

As we say, he had been assisted by his union throughout and it is self-evident from this letter it seems to us, that he had not taken them into his confidence about what he had done; this letter is not referring to an application which has already been made. However that may be, he had access to assistance from his trade union, as this letter shows.Later, in November, he went to the Citizens' Advice Bureau and he has told us today that he did not derive very much assistance from them. They regarded it as rather outside their field, apparently. He then went in January to see solicitors and he tells us that he showed those solicitors, amongst other documents, the letters we have referred to; most important, he showed them a copy of the application which he had made to the Industrial Tribunal on 25 October and he showed them the IT3, the Notice of Appearance, which the employers had filed in reply to that and I shall refer to that (page 27 of our bundle). It says:
"the dates of employment ........

Began on 5 April 1983

Ended on 8 November 1991"

and that was a matter of particular importance to Mr Housam for he has ringed that date 8 November 1991 very boldly on his copy. It comes below the usual printed part of the form "Are the dates of employment given by the applicant correct?" Yes is left blank, No is ticked. So there the employers were saying in terms: this employment did not end until 8 November. They were wrong about that. They were relying on the date of the appeal to the Chairman but we have seen the documents and we accept what Mr Bowers says, that it would be tolerably plain to any lawyer, as opposed to an industrialist perhaps, or a layman, but it is fairly plain that in fact the date was 4 November.That document was shown to the solicitor and of course it should have set alarm bells ringing straight away. According to Mr Housam, the solicitors said it all appeared fairly straightforward but the fact is that if the dates were right, then the application which he had made to the Industrial Tribunal was in fact premature and could not be entertained because of the provisions of section 67 of the Act. The application can only be made when the cause of complaint has arisen. The cause of complaint for unfair dismissal was alleged by the employers to have arisen on 8 November. That was wrong but it was certainly an indication. It does not matter at that stage whether it is right or wrong. Anybody advising Mr Housam, who was familiar with these areas of law, should have looked at that very carefully and considered that matter.The matter came before the Industrial Tribunal for the first hearing (page 34 of our bundle) and they gave summary reasons for their decision. What they said was this:
"The applicant was dismissed and the effective date of termination of his employment was 4 November 1991.
The complaint was presented to the tribunal on 30 October 1991 [that of course relates to the date on which this complaint of 25 October was received by the Central Office] a date prior to the effective date of termination and was not therefore presented within the period prescribed by section 67(2) of the Employment Protection (Consolidation) Act 1978."On that basis they could not entertain the application. Mr Housam was, so to speak, out of Court. The Industrial Tribunal could not help him. The application was in effect a nullity. They had no jurisdiction to entertain it.Mr Housam made a second complaint. That seems to be dated 10 February. It was sent apparently to another Tribunal centre on 12 February. It was not received at the Central Office of Industrial Tribunals at Bury St Edmunds until 16 March so that is its effective date. On any view, by 7 February when the first Tribunal sat, and apparently told Mr Housam there and then what their decision was, he was out of time: for he had been dismissed on 4 November and his complaint should have been presented by 4 February, indeed by midnight on 3 February. That had not been done. On any view he was late and this new application fell to be considered by a further Tribunal. The preliminary hearing was to see whether they had jurisdiction to entertain it. That Tribunal sat on 20 July and they promulgated their decision on 3 September (page 29 of our bundle).They held that they had no jurisdiction to hear the complaint and they said, amongst other things:
"4. In the events which happened, the applicant saw his trade union and took advice and on 11 November 1991 he was sent a letter by Mr G S Hewson, the regional industrial officer of the trade union...[They quote from the letter at page 42]
5. It seems that the applicant had some difficulty in getting further advice from his trade union and then went to see the Citizens Advice Bureau in November 1991, taking with him all the relevant papers. The potential difficulty as to jurisdiction appears not to have presented itself to the Citizens Advice Bureau; they merely said there was little they could do to help. They suggested a law centre but the applicant did not go there as it seems that he was told that he would have to see a solicitor first in order to be referred to the law society. He finally saw solicitors some two weeks or thereabouts before the hearing on 7 February 1992. Had they advised him on the point it would seem that he would still have been in time to enter a further complaint but it would appear that no such advice was given so far as his evidence takes us."They then refer to the terms of section 67 of the act of 1978, the Employment Protection (Consolidation) Act. The Tribunal continue at paragraph 8:
"In all the events which have happened it is clear to us that the applicant was under a serious misapprehension of facts and believed that he was dismissed on the earlier date of 24 October 1991 referred to in his first application. Nevertheless, before the hearing he took advice both from his trade union and from the Citizens Advice Bureau and from his solicitors. In no case was his potential difficulty as to jurisdiction and the very simple way in which he could have overcome it mentioned to him. It is, however, well settled that, where an applicant fails to present his complaint in time, relying upon inaccurate advice from an adviser, such as a trade union, a Citizens Advice Bureau or a solicitor, that does not establish for the purpose of section 67(2) of the Act that it was not reasonably practicable for a complaint to be presented before the end of the period of 3 months. That being so, although we have some sympathy for the applicant in his present predicament, we are bound to find that we have no jurisdiction to hear his complaint."
They addressed themselves therefore to the question under section 67(2) whether they had jurisdiction. They said "We have no jurisdiction unless we are satisfied that it was not reasonably practicable for this complaint to be presented in time" and they found that that was not so and that it had been reasonably practicable. We have had cited to us decisions on this matter. Palmer v Southend on Sea Borough Council [1984] ICR 372 cites extensively from and relies upon Walls Meat Co Ltd v Khan [1979] ICR 52. The Court of Appeal referred to what had been said in the Walls Meat Co case. They cited from what Lord Denning had said, and if I may respectfully say so of Lord Denning, one could hardly imagine a Judge more liberally disposed to interpretation of strict provisions like this. What Lord Denning said at [1979] ICR 56 was:
"Ignorance of his rights - or ignorance of the time limit - is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences."
Shaw LJ concurred and said repeatedly that this was essentially a question of fact for the Tribunal and not for the Employment Appeal Tribunal as a matter of law or for the Court of Appeal. Brandon LJ said much to the same effect (cited at page 383 of Palmer ). Brandon LJ said at page 383C referring to the possible impediment to presenting a complaint in time:
"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 as they should reasonably in all the circumstances have given him."
He, too, repeated that this was essentially a question of fact. The Court of Appeal went on to cite from other important judgments. They referred to what Mr Justice Browne-Wilkinson had said in the case of Bodha [1982] ICR 200 and they repeated, themselves, that this was pre-eminently a question of fact.This Industrial Tribunal, sitting on the second occasion, had before it papers which showed that it was not merely said but said with justice and great force, repeatedly, by the employers that this dismissal took place on the 4th November 1991 or later and although Mr Housam of course was controverting that, he was well aware throughout that that was the employers' case - that the dismissal had not taken place on 24 or 25 October; they therefore had to consider whether it was not reasonably practicable to present a timeous application, that is to say after the dismissal alleged by the employers but before the three months was up.They, in those circumstances, had to decide whether it was reasonably practicable, and it was a matter of fact for them. They could see that Mr Housam had enjoyed the membership of a trade union which not only could but did advise him; that he had consulted the CAB and that he had gone to solicitors. Now Courts and Tribunals are not in general concerned with what advice is given. The question is not whether the solicitor was right or wrong, whether the advice was full or not as full as it should have been; the fact is that the access of a lay person to a reliable source of correct advice is enough to make the Court say - "Well it was reasonably practicable; for those skilled advisers have it in their power to give correct advice on matters like this" and in the absence of something quite extraordinary the Tribunal is not concerned to go into the details. That is a matter which is often protected by privilege and which the Court is not concerned with. It is enough for the Tribunal to ask itself - "Was it or was it not reasonably practicable to present a complaint in time?". The Tribunal answered that question and they did so as an answer to a question of fact. They said they had some sympathy for Mr Housam, so do we, he undoubtedly started off promptly, far too promptly, and presented an application which was too soon. He then, perhaps in a rather obstinate frame of mind, relied on his own view and simply proceeded on that basis.We hold that this finding of fact by the Industrial Tribunal, that it was reasonably practicable to present a complaint in time, is one which is not in any way vitiated in law. It is a finding of fact. There is no indication here that there is any error of law by the Tribunal either in the direct sense or in the sense that the finding is perverse. It was one which was well open to this Tribunal as a matter of law and of course we cannot interfere in questions of fact, but only in questions of law.With regard to the first hearing Mr Housam addressed his submissions to that and continued to make the contention that the Tribunal which sat on 7 February was wrong in holding that he was dismissed on 4 November.First of all it is pointed out that that appeal is completely out of time. Furthermore, the appeal against that finding is quite incompetent because the Tribunal has never been asked to give its full reasons and no appeal can proceed on a point of law against the decision of the Industrial Tribunal without full reasons. The 42 days for giving full reasons would run from 26 February when they gave their summary reasons. They were never asked to give full reasons. Again Mr Housam evidently had access to sources of advice, and we cannot in any way entertain the appeal against the hearing which took place on 7 February.With regard to the hearing which took place on 20 July, by the second Tribunal, we are unable to find any error of law. It is not our concern to enquire into the nature of the advice which was given by the union or by the CAB or by the solicitor. It may be, we do not know, that Mr Housam may have complaints against one or other of those advisers of his or it may be that he did not give them the opportunity to advise or give them the necessary material. He says that he did. What we do have to do is to see whether there is any point of law here on which we could allow an appeal. We have gone into it rather more fully perhaps than we were justified in doing, because Mr Housam is in person, and Mr Bowers has therefore thought it right to take us through all the material matters.Having done all that we are quite unable to find any point of law here on which we can entertain the appeal and so the appeal has to be dismissed.