Richards v DVLA [1995] UKEAT 815_95_2410

EAT
Richards v DVLA
[1995] UKEAT 815_95_2410 · 1995-10-24
MR JUSTICE MAURICE KAY : We have been advised that there are to be no appearance in this appeal, although there is voluminous documentation.Mr Richards was employed by the DVLA in Swansea from 15th February 1988 until 6th May 1994, when his employment was terminated on medical grounds.On 25th April 1995 an application was received at the Central Office of the Industrial Tribunals from Mr Richards, claiming that he had been unfairly dismissed. That timescale dictated that there be a preliminary hearing to consider whether his application should be allowed to proceed, having regard to the fact that it was, as the Tribunal put it "Hopelessly out of time." As is well known by the Employment Protection (Consolidation) Act 1978 Section 67, applications to the Industrial Tribunal have to be commenced within three months of the effective date of termination of the contract of employment, unless the proviso in Section 67(2) applies. That allows an Industrial Tribunal to extend time where it considers it reasonable and it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three month period.The important dates in this case are that Mr Richards' employment had as its effective date of termination - 6th May 1994. The three month period therefore expired on 5th August 1994 and the application which was received on 25th April 1995 was over eight months late.Amongst the extensive documentation which has been submitted by Mr Richards and which we have been able to read are documents showing how he sought and obtained legal advice in the aftermath of his dismissal.There is a letter dated 24th June 1994, from Messrs Robin Thompson & Partners to Mr Richards, in which they gave him advice about an application to the Industrial Tribunal for unfair dismissal. The writer of that letter agreed with Mr Richards that it was "unfair" that he had had to lose his job as a result of injuries sustained in an accident, but she went on to say:

"... proving unfair dismissal at law is a different matter."

She explained why that was so, and it is clear from that letter that she was extremely pessimistic about the likely success of any application to the Industrial Tribunal. More to the point, she advised Mr Richards in terms:
"If you wish to pursue any claim for unfair dismissal, then you have 3 months from the time of your dismissal within which to apply to the Industrial Tribunal. You should contact your Union if you wish to do this. However, as I have explained, I do not feel there are reasonable prospects of your succeeding in this."
Other documents before us show that Mr Richards did indeed contact his trade union. It seems that in the event, they were as unenthusiastic about his prospects of success as his solicitor had been. Indeed, he records them as having advised him that it was "not a case that could be won".The months went by. They are documented. Eventually the application was made to the Industrial Tribunal.The Industrial Tribunal came to the conclusion that Mr Richards was aware of the time limits, having discussed it with his solicitors in June 1994. They found as a fact that he also discussed the claim with his union, from whom he also received adverse advice. The Chairman's conclusion in the Industrial Tribunal is recorded in paragraph 4 in the following terms:
"4. He has not satisfied me that it was not reasonably practicable to present his claim in time. The application is dismissed."
In this Tribunal, his appeal could only have any prospect of success if he were able to raise an arguable point of law.Having regard to the provisions of Section 67(2), it is our unanimous conclusion that, the finding of the Industrial Tribunal that Mr Richards had not established that it was not reasonably practicable to present his claim in time is unimpeachable. His appeal raises no point of law and is in our unanimous judgment bound to fail.Accordingly, at this preliminary hearing we have come to the conclusion that his appeal must be dismissed.