Homesdale Trust v Roberts [1995] UKEAT 204_95_1010

EAT
Homesdale Trust v Roberts
[1995] UKEAT 204_95_1010 · 1995-10-10

JUDGE HULL QC:

Miss Roberts who was the Applicant before the Industrial Tribunal is a young woman aged 19. Her employment with Homesdale Trust, the Appellants here, began on 2 April 1992 when she was employed as a domestic assistant and she also did a certain amount of caring for the people in the home. We are not concerned to go into those facts. She lost her employment on 23 April 1994, just over two years after starting: that was the effective date of termination of employment and she wished to complain that she had been unfairly dealt with. She also wished to claim that there had been improper deductions; that she was entitled to sums which she had not been paid. She went to a local solicitor and instructed him (Mr Davies) to make the necessary application to the Industrial Tribunal. On 1 July 1994 the solicitor duly prepared the application form and sent it off not to the present address of the Central Office of Industrial Tribunals, which is at Bury St Edmunds, but to 93 Ebury Bridge Road, where the Central Office used to have its premises. That had ceased to be their premises nearly 2 years before but Mr Davies was in ignorance of that fact. Time expired on 22 July 1994. Mr Davies, having sent off that application, heard nothing. On 3 August, being concerned, he wrote to 93 Ebury Bridge Road, still being under the impression that that was the address to which he should be writing. On 15 August 1994 he got a shock because there was returned to him, through the post, the original papers which he had sent on 1 July and they were marked "gone away". He made immediate enquiries and one is not surprised to hear that on that same day he was able to discover the proper address of the Central Office of Industrial Tribunals and to send off the necessary application to Bury St Edmunds. By now he was something like 3 weeks out of time.The Respondents put in their answer. Mr Davies swore an Affidavit as to what had happened and the Industrial Tribunal, in due course, sat on 18 January 1995 at Cardiff and considered whether they had jurisdiction in the case. That depends of course on what is said in Section 67 of the Employment Protection (Consolidation) Act 1978 ; it is provided:
"(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed...
(2) ... 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."Now clearly this complaint had not been presented to the Tribunal, as that expression is properly understood, within the 3 months; it had been sent to the wrong address and it had not been received by the Central Office of Industrial Tribunals and it was therefore necessary for the Industrial Tribunal to consider whether it had jurisdiction; and that was precisely what the Industrial Tribunal did. They had before them the Affidavit by Mr Davies and it considered that.The decision of the Industrial Tribunal is to be found at page 3 onwards in our papers. The Tribunal was presided over by Dr Davies with her two colleagues the industrial Members. They unanimously decided that it was not reasonably practicable for the Applicant to present her complaint in time. They said that after setting out that the solicitors were unaware of the fact that the Central Office had moved from Ebury Bridge Road in London to Bury St Edmunds; they went on to consider other facts. They say that:"6. Mr Jeremy for the respondents contends that it was reasonably practicable, and that time should not be extended. He relies on Capital Foods Retail Ltd v Corrigan where it was held that the unexplained failure of the IT1 to reach Central Office was not sufficient to establish that it was `not reasonably practicable' to present it within time, unless all reasonable steps had been taken to check that it had been received. The Court applied the principle in Walls Meat Co v Kharin . In that case it was held that presentation was not reasonably practicable if reasonably prevented by some impediment, examples of which included "reasonable" ignorance or mistaken belief, but which did not include fault such as failure to make reasonable enquiries.7. In Capital Foods the Court said the existence of an impediment was not sufficient to satisfy the test of Section 67(2) unless the applicant's advisers `have taken all the steps they should reasonably have taken... to see that the application was timeously presented'.."The facts in both those cases were rather different from the facts in the present case. Theygo on to say:
"8. Mr Jeremy submitted that the applicant's solicitor should have maintained a diary checking system which would have alerted him to the lack of reply prior to the expiry date.
9. The argument is rejected. There was no evidence to show what system the solicitor used, but it did show that he was sufficiently conscious of the delay to become concerned within only four and a half weeks of posting the IT1...10. We distinguish Capital for the following reasons. In Capital the application was posted to the correct address whereas in the present it was not. In Capital there was only an unexplained failure to arrive, whereas here there is an explanation, namely Central Office's change of address. In Capital there was no need for the Post Office to return the correspondence, whereas here the Post Office delay in returning the forms contributed considerably to the delay. In Capital the delay before checking on safe arrival was 4 months whereas here it was 4.1/2 weeks."Then they came to something which has been the subject of controversy:
"11. Mr Carson told the tribunal in submissions that the solicitor relied on information in the notes of guidance accompanying the IT1 which was issued to him by the Jobcentre. Mr Jeremy pointed out that this assertion was not made in the affidavit and he said it should be disregarded.
12. The Tribunal accepts that the assertion does not constitute evidence and does not treat it as evidence but we do attribute a certain value to it, to the extent only that it reiterates a commonsense recognition. Ordinarily advisers would rely on Notes of Guidance accompanying the IT1 on presentation of a case. It is highly improbable that they would retain the address in their heads and we are satisfied on the balance of probabilities that the solicitor in the present case would have taken the address from guidelines accompanying the IT1."It could be said with justice that the Industrial Tribunal might be expected, since this was not a matter which was in evidence and not tested by cross-examination, to ask some further questions. It might be said that they would have wanted to know when and where this IT1 was obtained. Had it been sitting in the solicitor's office for a substantial time or was it freshly issued by the Job Centre? They might have asked that. It does not appear that they did, but at the same time it is not clear what passed because it is not in evidence. They go on:
"13. It is also a fact within the tribunal's knowledge that throughout the relevant period, Central Office had and still has, (this being the date of sitting) an arrangement with the Post Office for mail to be forwarded from Ebury Bridge Road to the correct address. It is clear that on this occasion the Post Office failed to carry out the arrangement."
The Industrial Tribunal were entitled to make use of their knowledge. That is the type of thing of which they could be expected to have knowledge, either themselves or through their office staff, and that is what they said about it. It is not suggested that there was no foundation for that knowledge or belief.
"14. Applying the principles in Walls Meat we ask ourselves first whether timeous presentation was prevented by some impediment. We are satisfied that there were five impediments which combined to prevent timeous presentation - (a) the move of Central Office; (b) the apparent failure of Central Office sufficiently to apprise practitioners, through Jobcentres, or other sources of forms and guidance notes, of the change of address; (c) ignorance or mistaken belief on the solicitor's part; (d) the Post Office's failure to forward mail as arranged; and (e) the six week delay by the Post Office in returning the packet stamped 4 July.
15. We find that the solicitor's ignorance or mistaken belief was reasonable in that on the balance of probabilities he would have extracted the address from the Department of Employment guidance notes accompanying the IT1, and that there was no reason in that case why he should have made enquiries as to whether that address was correct. We find that there was no fault in his relying on those guidance notes and that the incorrect address did not arise from failure to make reasonable enquiries. We find that the solicitor took all reasonable steps to see the application was timeously presented. We find that in writing to Central Office after four and a half weeks he took all reasonable steps to check on the delay in response."Eventually, after considering the authorities a little further, they say:
"18. We find that:- (i) the applicant's solicitor took all reasonable steps to present the complaint in time
(ii) that he was impeded in doing so by factors outside his control and contemplation(iii) that he took reasonable steps within a reasonable time to ascertain whether the application had arrived(iv) that the late presentation did not arise from his fault, but from his reasonable ignorance or mistaken belief combined with Post Office failure to forward and delay in returning the letter(v) that because of the solicitor's ignorance or mistaken belief, and the Post Office failings, it was not reasonably practicable to present the complaint in time"They held that the requirements of Section 67(2) were satisfied; that it was presented within a reasonable time thereafter; and they therefore concluded that they had jurisdiction to try the complaint which had been made to them.Ms Head has made submissions to us that in substance those grounds, or many of them, are so clearly mistaken that we should say they represent an error of law. She pointed out that the Central Office moved 22 months previously and that ignorance of its whereabouts in those circumstances could not be an "impediment". She said that it offends commonsense to say that the Central Office had not apparently taken sufficient steps to apprise practitioners. She says that to talk about the solicitor's reasonable ignorance is on the face of it absurd, because solicitors are being retained and paid for their knowledge. Time limits are part of a solicitor's duty. She says that the Post Office's failure to forward mail was a finding of fact not supported by evidence.We have considered those submissions, which are undoubtedly significant and well made, but we remind ourselves that these decisions, and all such decisions, are questions of fact. Among the authorities which were cited to us was a recent decision of our own Tribunal chaired by Mr Justice Holland. In that case our Tribunal went through the authorities and cited with gratitude what had fallen from Lord Denning when Master of the Rolls in Walls Meat Co Ltd v Khan [1978] IRLR 501 :
"In parting from this case, I must say that I regret the volume of case law which has accumulated about this time limit for unfair dismissal. There are other statutes in which the courts are given a discretion to extend a time limit: and they operate successfully without attracting long arguments on facts or on law. I would like to suggest that some limit be placed on the reporting of these cases. They all turn very much on their own facts. If we are not careful, we shall find the Industrial Tribunals bent down under the weight of the law books or, what is worse, asleep under them. Let principles be reported, but not particular instances."
We would respectfully echo what fell from Lord Denning. This is eminently a question of discretion, degree and fact for the Industrial Tribunal. We have repeatedly to remind ourselves, since so much of our jurisdiction depends upon reading and looking at documents, that the mere fact that we think that we would or might have reached a different decision is not the point. The decision on questions of fact and degree and discretion is given by Parliament to the Industrial Tribunal. Certainly a permissible view is that it is in the nature of an absurdity for a solicitor not to know where he is to send some documents - and if he is not quite sure, he ought to say; but here we have the plain finding of this Industrial Tribunal, who were able to see and understand the way in which local solicitors operate, that they thought it was reasonable for him to rely on what was in the Notes for Guidance in the IT1. He sent off the form in time. It is perfectly true that he could have enquired after 5 days or a fortnight as to what had happened to it. They thought it reasonable for him not to enquire until later, after the time had expired. They thought it most unfortunate that the Post Office arrangement, of which they said they had knowledge, had not worked as it should have done. They found that in all the circumstances they had jurisdiction. It was not reasonably practicable in all the circumstances to present the complaint timeously. It could very well be said, and this is a matter of opinion rather than decision, but it is a matter of comment, that this decision by the Industrial Tribunal is somewhere near the end of the scale of what is reasonable.Nonetheless, we all three of us having thought about it, and certainly not having started from the same prima facie view of the matter, have reached the conclusion that it was within the power of the Industrial Tribunal here, as a decision on fact, to reach the conclusions which they did. That is not of course to say that another Tribunal would have reached the same conclusion. It might not have. Another Tribunal might have taken a very different view of the evidence. It is not for us to say what view we take of the evidence. We think that it was within the powers of this Industrial Tribunal to reach the conclusion which they did and they are not to be described as acting perversely or unlawfully or as showing any grounds for appeal in what they did. We unanimously conclude that this appeal must be dismissed.