Castrol (UK) Ltd v Dempster [1995] UKEAT 746_94_1107

EAT

Castrol (UK) Ltd v Dempster

[1995] UKEAT 746_94_1107 · 1995-07-11

JUDGE N BUTTER QC:

This is an appeal from a decision of the Liverpool Industrial Tribunal of 17 May 1994. It was a unanimous decision dealing with the question of the time limit. The Applicant's employment ended on 30 June 1993. She prepared a claim form on 18 September which she handed to a Mr Williamson on 20 September and he posted it on that date.

The Applicant heard nothing and communicated with the Central Office of the Industrial Tribunals on 28 October 1993. She expressed concern and enclosed a copy of the application form. The Tribunal said, in the course of giving their reasons:

"9. .... Having heard the evidence of the applicant and her friend Mr Williamson, we accept the veracity of what they say, and that, therefore, the initial action to start a claim was made within the three month period albeit without success. The postal service cannot be seen as being entirely without fault and, quite apart from that, the time at which the application was originally sent was a time when the Central Office of the Industrial Tribunals was enormously congested by large numbers of applications emanating from the Police Service. This did cause administrative difficulties and that might, perhaps, have been a contributory factor. .... ."

At the very end of their decision they say that they found,

" .... that the applicant's efforts to present an application within the three month period were thwarted, for whatever reason, and that, thereafter, the application was re-presented in a time which, in all the circumstances, was reasonable. The matter may therefore go forward to a full hearing on the merits."

Criticism is made on this appeal by Counsel, on behalf of the Appellants, concerning certain sentences in the passage to which I have referred, including the phrase "The postal service cannot be seen as being entirely without fault" . He draws attention to the fact that the critical date is when an application is received and he says that the phrase " for whatever reason" in the last sentence or so, is unsatisfactory.

On this appeal, the Respondent herself, has not appeared or been represented. It appears that she is unable to afford that.

The main argument on behalf of the Appellants arises out of the decision in Capital Foods Retail Limited v Corrigan

[1993] IRLR 430

. In that case I can summarise part of the headnote in this way:

"According to the Tribunal: `There is of course a presumption that what is posted will be delivered. Nevertheless ... we accept that the steps said to have been taken on the applicant's behalf were taken at the time they were said to have been taken. We therefore find that it was not reasonably practicable for the applicant to submit her application within the statutory permitted period of three months and that she did submit it as soon as was reasonable following the expiry of that statutory period.'"

The Employment Appeal Tribunal held however that:

"The Industrial Tribunal had erred in holding that it was not reasonably practicable within the meaning of s.67(2) of the Employment Protection (Consolidation) Act 1978 for the respondent employee to present her unfair dismissal application within the statutory three-month period, in circumstances in which the application had been posted by her solicitors some five weeks before the time limit expired but had failed to reach the Industrial Tribunal office. The Tribunal had erred in accepting that there is a presumption that what is posted will be delivered without expressly discussing the question of whether reliance on that presumption was reasonable in the circumstances.

The unexplained failure of an application to reach the Industrial Tribunal is not sufficient to satisfy the test in s.67(2) unless all reasonable steps were taken to confirm that the application had been duly received."

We think it inappropriate to say very much here, except to say that we accept the argument on behalf of the Appellants, that the way in which the matter was dealt with by the Industrial Tribunal was flawed in that they do not appear to have applied their mind to what I might call "the second limb" of the relevant question.

It is true that they did refer to the case of Capital Foods v Corrigan , but they did not, in our view, apply the effect of that authority. We do not feel able to say, with conviction, that the application would necessarily fail. We have reached the conclusion, albeit it with some reluctance, that this is a case where the matter ought to be remitted to a different Tribunal to consider the matters specifically.

It is just possible that the letters which we have mentioned in the course of argument, from the Royal Mail dated 22 November 1993 and 2 December 1993, may be of some relevance though at the moment we simply do not know. In any event, the vital point is that the Tribunal did not consider the matter correctly, and we reach the view that the matter ought to be remitted.

I will now consider with Counsel (if I may) the precise wording of the matters which it is suggested the Tribunal below should consider and also, whether there should be any specific reference to the period 29 September to 28 October 1993.

Judge N. Butter QC subsequently directed that the matter be remitted to a differently constituted Tribunal to consider, under section 67(2) of the Employment Protection (Consolidation) Act 1978 , in particular whether in relation to the words "not reasonably practicable" the Applicant took all reasonable steps (including the period 29 September to 28 October 1993) to see that the application was timeously presented.