Hopkin v McNally & Anor [1994] UKEAT 872_94_2411

EAT
Hopkin v McNally & Anor
[1994] UKEAT 872_94_2411 · 1994-11-24

JUDGE BULL QC:

This is a preliminary ex parte application in the appeal by Mrs R M Hopkin against a decision of the Industrial Tribunal sitting at Carmarthen on 28 July 1994. Their decision was promulgated on 3 August 1994.By that decision the Industrial Tribunal declined jurisdiction to entertain the claim by Mrs Hopkin for constructive dismissal upon the ground that her application was presented outside the statutory time limit of three months. They found that it had been reasonably practicable for her to bring her application within that time limit and thus they had no jurisdiction to extend such time limit and therefore no jurisdiction to hear her application.Mrs Hopkin had been the manageress of the Spar Stores at Nayland, Milford Haven, Dyfed, when, she says, an allegation was made against her which reflected on her integrity and the management refused to allow her to return to work. It is right that at the outset I make plain exactly what our function is. We do not - nor did the Industrial Tribunal - make any findings upon the allegations which may have been made against Mrs Hopkin. Her character remains as it was before any such allegations were made against her and she doubtless is still, in the opinion of all right thinking people, in the same high esteem as they have always held her.What we have to decide is whether the Industrial Tribunal erred in law in its approach to this matter. There can be no question of our retrying the issue or, in fact, substituting our view of the facts for that of the Industrial Tribunal.The law which we have to apply, and that which the Industrial Tribunal applied, starts with Section 67 of the Employment Protection (Consolidation) Act 1978 which reads:
"(1) A complaint may be presented to an industrial tribunal against an employer by any person ..... that he was unfairly dismissed by the employer.
(2) Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section uless 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 Industrial Tribunal gave its decision on 20 July 1994. They found by paragraph 2 that the time limit for the application of constructive dismissal in this case would have expired on 12 July 1993.They went on to find the following facts. Mrs Hopkin was seriously ill; her illness was related in part to the industrial dispute between her and the Respondent employers, which was a dispute revolving aroung the allegation of dishonesty. The Industrial Tribunal made it very clear that they had noted and accepted that Mrs Hopkin vehemently denied the allegations against her. Indeed, they went on to assert that which we have already underlined, that those allegations remain exactly what they are, merely allegations, and her good name remains intact.They then went on to deal with the evidence given before them, primarily by Mr Hopkin, who appears on her behalf before us today. May I say that his researches into this matter show that he has brought before us all the relevant case law and he has put before us every possible matter which could be put on behalf of Mrs Hopkin. The Industrial Tribunal found that Mr Hopkin had been a helpful and frank witness.What was plain from their findings of fact was that, in the weeks after her resignation, Mrs Hopkin had become depressed to a degree where her illness required visits to the clinical psychologist every other week and also visits to her doctor. These were all matters which took place within the three month time limit and they considered those matters in their Reasons. They gave their opinion of this in paragraph 5:
"We find that dealing with the evidence of medical advice which had been given to Mr Hopkin we had to consider it in the following way. The advice of the consultant and a number of doctors was that the applicant should not become involved in legal proceedings because of her condition. We find that Mr Hopkin for wholly understandable, and in our view, wholly commendable reasons chose to protect his wife from such pressure. In that action Mr Hopkin has our understanding and also our sympathy."
They went on to record in paragraph 6 however that is not the legal test under Section 67 and that the test which they had to apply was one of reasonable practicability. They concluded in paragraph 7:
"Therefore the tribunal whilst extending its sympathy and understanding to Mr and Mrs Hopkin would be unable to take into account the fact that medical advice against involvement in proceedings as being a sufficient reason to satisfy the test of reasonable practicability because in the circumstances we find that there was nothing which prevented on a reasonably practicable basis the institution of this application."
Mr Hopkin appeals against that decision submitting to us that his wife was not in a condition to even consider making a decision to submit an application to the Industrial Tribunal and upon that basis alone we ought to entertain an application for an appeal. He goes on to make further points that it is difficult for her in the community in which she enjoyed such high standing and universal approbation, to face the world if she does not have a public forum from which to clear her name. However, that is not a matter which we can take into account nor, indeed, could the Industrial Tribunal take it into account in the circumstance of this case under Section 67.The effect and extent of the illness was a matter of fact for the Industrial Tribunal to decide. They plainly considered this matter with great care. They made their findings upon it and those are findings of fact with which we are unable to interfere. We are, therefore, driven to the conclusion that since we are a tribunal of law, and not a tribunal of fact, there can be no question of us re-opening the matter. Since we can detect no error of law in this Industrial Tribunal and we certainly cannot say that in any of the respects which have been so helpfully put forward by Mr Hopkin, nor in other respect which occurs to us, that this Industrial Tribunal acted in a way or reached a conclusion that no reasonable tribunal could have done, we are driven to the conclusion we must dismiss this appeal, and we so do.