Neatherway v Basildon District Council [1994] UKEAT 943_93_3110

EAT

Neatherway v Basildon District Council

[1994] UKEAT 943_93_3110 · 1994-10-31

MR JUSTICE PILL: This is an Appeal against the decision of the Industrial Tribunal held at London North on the 19th August 1993.

The Tribunal decided unanimously that they had no jurisdiction to hear the complaint of the Applicant Miss S J Neatherway of unfair dismissal because of the provisions of Section 67 (2) of the Employment Protection (Consolidation) Act 1978. A complaint of unfair dismissal was dismissed. They further decided that they had no jurisdiction to hear her complaint of unlawful sexual discrimination, by virtue of the provisions of Section 76 (1) of the Sex Discrimination Act 1975. A complaint of unlawful sexual discrimination was accordingly dismissed. Miss Neatherway's claim for payment of a redundancy payment was withdrawn by her, and was formally dismissed.

Miss Neatherway sought a review of the decision. On the 2nd November 1993, in exercise of the powers conferred by Rule 10 (3) of the Industrial Tribunal's Rules and Procedures Regulations 1985, the Tribunal Chairman refused the Application for a review. He stated that he did so on the grounds that, in his opinion, the Miss Neatherway's Application had no reasonable prospect of success.

The Notice of Appeal is settled by a representative of Miss Neatherway, Mr G C Foucher. The grounds are 1) the manner in which the Hearing is dealt with 2) the point of starting the three months notice period for making the claim 3) the change in Miss Neatherway's contract and termination notice 4) the possibility of Basildon District Council being party to certain factors which in itself caused the delay in the Application.

It will be plain from the grounds of the Tribunal's decision, that the claims were dismissed because of a failure to comply with time limits in the making of the two Applications.

Miss Neatherway was employed by the Basildon District Council from the 3rd September 1990 to the 11th September 1992. At the alleged date of termination of the employment, she was eighteen years old and accepted that she was not entitled to a redundancy payment. In their response to her Applications, IT 3, the Council stated the Applicant was selected for redundancy in accordance with the procedure and was given written notice on the 16th July 1992. The Council alleged that the Applicant was given details of alternative employment with the Council and offered the opportunity to compete for alternative employment but that she did not exercise the right to do so. Neither, they submit, did she exercise her right of appeal against dismissal to the Council's Appeals Committee.

At page 58 of the bundle of documents, there appears a letter addressed to Miss Sharon Neatherway, Attendant Gardener, dated 16th July 1992 and headed:

"NOTICE OF DISMISSAL"

In their decision, the Tribunal state at paragraph 4:

"The tribunal considered only their jurisdiction to hear the Applicant's complaints of unfair dismissal and unlawful sexual discrimination. That was made clear to the parties by letter from these tribunals dated 8 March 1993. the jurisdictional issue arose because the Applicant's originating application had been received appreciably outside the time limit prescribed both by section 67(2) of the Employment Protection (Consolidation) Act 1978 and section 76(1) of the Sex Discrimination Act 1975."

The Tribunal went on to consider the points put forward by the Applicant as to why the discretion to extend time should be exercised. The Tribunal set out what Miss Neatherway had stated in her letter of the 25th January 1993, as to what happened between her receipt of the Notice of Dismissal and her making the Application. Reference is made to her having spoken to the Convener at work, the Area Representative from NUPE, the Citizens Advice Bureau. Miss Neatherway appeared herself at the Hearing before the Industrial Tribunal. The Tribunal found that Miss Neatherway had sought and received advice from her Union, that she had attended a Job Centre in September of 1992 and that she had discussed matters with a solicitor in November of that year. In Paragraph 3 of their Decision, the Tribunal state the date of dismissal as the 11th September 1992 and they state that Miss Neatherway confirmed that date. At Paragraph 11 where they set out their Findings they confirm their Finding that Miss Neatherway had been dismissed in September of 1992 and added in paragraph 12 that:

"The effective date, following the third month anniversary of which any originating application should have been submitted under the legislation, is therefore 11 September 1992."

At paragraph 14 they give their reasons why under each of the Acts they were not prepared to extend the appropriate time limit.

There has been considerable correspondence since that time, and we have considered the correspondence. Mr Foucher submitted detailed reasons in support of the Grounds of Appeal to which we have referred. He further wrote to the Secretary of the Tribunals at Central Office of the Industrial Tribunals on the 24th August 1993. There is more recent correspondence. He wrote in detail a letter which was stamped as having been received on the 5th November 1993 and more recently, there is a letter we have considered, dated 4th November 1993. Much more recently, there is a letter dated 26th September 1994. Also in the bundle is a letter of the 4th November 1993 written to Mr Foucher from the Regional Office of Industrial Tribunals and there is a letter from the Registrar of this Tribunal to Mr Foucher dated 28th July 1994.

Those letters arose because one of the complaints in the Notice of Appeal is about "the manner in which the Hearing was dealt with", to quote the Notice of Appeal. It was submitted that at the Hearing of the Industrial Tribunal, Miss Neatherway was treated less favourably than was the representative of the Council, that insufficient regard was paid to her youth and that the Chairman and Members of the Tribunal were unsympathetic towards her in the presentation of her case. We cannot accept that the Hearings before the Tribunal were unfair. We have considered the documents before us along with relevant decisions of the Tribunal and we reject the complaint of unfairness at the Hearing.

The point which Mr Foucher has emphasised in his letters is as to when the three month period, within which Notices should be served, commenced. We quote the paragraph numbered 1 in his letter of 26th September 1994:

The point of law states that the claim for unfair dismissal should be within three months from when the act took place. Now the judge at the original hearing took the date that the Act took place as the date Miss Neatherway was made redundant. I contest this fact, due to the fact that all staff being made redundant were told at a meeting prior to being made redundant that should the Council with the contract for the Park in Billericay then those being made redundant would be offered their jobs back. (This would be in the form of a letter or by telephone). You have letters confirming this from two of the staff who were at that meeting."

Mr Foucher then goes on to say that Miss Neatherway was not contacted until a dated within three months of the time when she made her Application to the Tribunal. Mr Foucher submits that the employer has contributed to the delay by the course of conduct adopted and first, that the time did not begin to run until November and second, that even if it did begin to run earlier then in the circumstance of this case, and applying the rules, the time should be extended.

We cannot accept that submission. We do accept that there was a possibility of a re-engagement; that was made known to Miss Neatherway. That did not however have the effect of rendering her dismissal anything other than a dismissal. The Tribunal were entitled to find, on the information before them, and indeed it appears Miss Neatherway herself confirmed the point, that she was dismissed on the date in September found by the Tribunal.

The next point taken by Mr Foucher on Miss Neatherway's behalf, is that there is a contradiction between the description of her employment in her Contract of Employment and the description in the Dismissal Notice. In the first, she was described as gardener/attendant whereas in the second she was described as attendant/gardener. Mr Foucher submits that obviously something is wrong with this, and in his letters he does elaborate upon that point. We have to say that we can see nothing in that point. It does not affect the right of the employer to dismiss and does not invalidate the procedure by which the dismissal was effected.

In his fourth reason, Mr Foucher submits that the Council themselves must take part of the blame for Miss Neatherway, as Mr Foucher puts it:

"being pushed from pillar to post by everyone."

It is right to say that in their decision the Tribunal are critical in certain respects of the manner in which the Applicant was advised. That was a point however, which they plainly had in mind, when assessing whether an extension should be granted when considering the issues in the case. The Industrial Tribunal are of course, the Tribunal of fact. In our judgment they were entitled to reach the decision they did. We have considered the grounds of appeal and letters in support; we can find nothing perverse about the decision of the Tribunal and nothing about it which would entitle this Tribunal to interfere with the decision. This is a Preliminary Hearing. We have not heard representatives of the Council and Miss Neatherway has not attended before us, neither has Mr Foucher. We have had the advantage of the detailed documents to which we have referred. We have considered them and this Appeal must be dismissed.