Culling v Pontins Ltd (t/a Holiday Club Pontins) [1995] UKEAT 1145_94_2303

EAT

Culling v Pontins Ltd (t/a Holiday Club Pontins)

[1995] UKEAT 1145_94_2303 · 1995-03-23

JUDGE LEVY QC :

This is another unfortunate case where a employee has delayed bringing a complaint to an Industrial Tribunal for reasons which he thought were good, but which have ended by him bring a complaint outside the time limit provided by Section 67(2) of the Employment Protection (Consolidation) Act 1978. Sub-section (1) of that section reads:

"A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer."

"(2) Subject to subsection (4), [ which does not apply on the facts that we have to consider] 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 considered 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 facts here, as found by the Industrial Tribunal, are these. The effective date of termination of Mr Culling's employment was on 23rd March 1994. This complaint that he was unfairly dismissed was received in the Industrial Tribunal on 23rd June 1994. His brother, who appears for him today, points out that they were only some twelve hours late. We understand that. However, the law on time provisions is set out in the well known case Pruden - v - Cunard Ellerman Ltd

1993 IRLR 317

. We will only refer to parts of two paragraphs from that judgement of the then President of the Employment Appeal Tribunal, Mr Justice Wood, and his colleagues. Part of paragraph 6 reads:

"Where time is specified to run from a particular date, the word `date' means the whole of the period of 24 hours from midnight to midnight, and the law takes not account of a fraction of a day unless special reasons require it; ..."

[Part of paragraph 12 reads:]

"It seems to us, therefore, that the calculation starts with the identification of the relevant day and date upon which, in three months time, time would run out. If one looks at it is that way the understanding, in our judgement, is far simpler."

On the facts of this case, that means if Mr Culling's employment ends on 23rd March proceedings must be commenced in the Industrial Tribunal by 22nd June. Before giving the judgment which it gave, the Tribunal had to be satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. The learned Chairman, who heard the interlocutory application for determination under Rule 6, looked into this. The relevant paragraph of the Extended Reasons read:

"15 ... I note that [the applicant] had received the originating application [ the Chairman must be referring to a blank form of an IT1] at an early stage soon after his dismissal and that he knew of the three month time limit, but that he deliberately delayed submitting the application form because he wanted to obtain other employment and he thought that it might assist him if he had not, at the time at which he was applying for employment a claim of unfair dismissal."

"16 However, all this drives me to the conclusion that it was reasonably practicable for the Applicant to have presented his application within the time limit of three months. The application for unfair dismissal therefore fails and is dismissed."

The Chairman of the Tribunal did have discretion which he had to exercise. We cannot interfere with an exercise of his discretion unless it was plainly wrong. It is not clear to us that it was plainly wrong. Indeed on the facts as we understand them, the decision was clearly correct. We therefore dismiss this appeal.

We hope that this judgment makes the position clear to both Mr Cullings; the Appellant and his brother who has presented this appeal to us on his behalf today clearly and concisely.