Mann v Blenheim Group Plc [1996] UKEAT 1062_94_0202

EAT

Mann v Blenheim Group Plc

[1996] UKEAT 1062_94_0202 · 1996-02-02

JUDGE SMITH QC:

This is an appeal by Mr Mann against a decision of the Industrial Tribunal at London (North) the Chairman sitting alone, on 8 September 1994, when the Chairman decided that it was reasonably practicable for the Applicant to have presented his application to the Tribunal within the time limits set out in Section 67 of the 1978 Act and that therefore the Tribunal had no jurisdiction to consider his claim for unfair dismissal.

The facts, are set out in the extended reasons in paragraphs 1 and 2 in particular. From those it appears that the Appellant had commenced employment in 1988 with a large company Blenheim Group Plc., the Respondents, and by 1990 had been made Events Director, being responsible for making catalogues and running exhibitions. On 14 May as is set out in the reasons, he was called into a meeting and he was told that he was redundant. Thereafter he was offered a redundancy package and told, according to the findings of the Industrial Tribunal, that he must sign acceptance of the package in full and final settlement, otherwise he might get less. He was shocked and upset by that, although he tried to ask Mr Richardson, who is in a senior position in the Respondent company, about alternative employment, and asked somebody else about a transfer within the company, no further discussion proved possible. What happened then, as the Industrial Tribunal found, was that the Applicant tried to find alternative work but in October 1993 he left the country (for reasons that we are not concerned with in any detail) and returned in March 1994. He went to a business show and there met some of his former colleagues. He was then told, on the findings of the Industrial Tribunal, for the first time that, immediately following his departure from his job, which was back in May 1993, what had happened was, according to what he was told, that his job had been done by somebody else and that the company had gone about recruiting new directors, one of whom was in effect doing his job, and that had happened within a very short period after his departure.

As the Industrial Tribunal made clear in paragraph 2, he then sought advice and, according to the findings of the Industrial Tribunal, he acted promptly once he had discovered what had happened, with the result that an Originating Application was submitted on 12 April and it is clear that it was received by the Central Office on 16 April 1994. It was in those circumstances that the matter came before the Chairman on the preliminary issue of whether it was or was not reasonably practicable for him to have presented his Originating Application within the three month time limit laid down by Section 67(2) of the Act.

The Industrial Tribunal held that it was reasonably practicable, despite those findings of fact which we have already referred to. The way the Industrial Tribunal put it was to say that:

"5. We find on these facts that it was reasonably practicable for the Applicant to submit his application within the three months laid down by the Employment Protection (Consolidation) Act 1978. He was extremely shocked at the way he was treated, he was shocked that no alternative employment had been offered to him and that there had been no consultation. On the other hand, he admitted in evidence that he had accepted the redundancy package in full and final settlement. I conclude that the reason that he did not seek advice, although he was aggrieved was that he accepted the payment to him in settlement of all outstanding claims. It was only later in March 1994 when he met his colleagues that the wound was reopened and he decided to make a claim to this Tribunal."

In our judgment the approach which the learned Chairman there took suffers from the disadvantage that there was not cited to the Chairman the authorities which throw light on circumstances such as those with which the Chairman had to deal, namely, the discovery of a fact fundamental to a claim for unfair dismissal, in some circumstances long after the time limit has gone by, although of course, in other circumstances, soon after the time limit has gone by. In our judgment it is apparent that the Chairman reached her conclusions without having the advantage of considering the very important authorities of Churchill v Yeates & Sons Ltd

[1983] ICR 380

as approved by the Court of Appeal in the case of Machine Tool Industry Research Association v Simpson

[1988] IRLR 212

. It is important to read from the headnote of Churchill v Yeates :

" Held, allowing the appeal, that it was not reasonably practicable... for an employee to bring a complaint of unfair dismissal until he had knowledge of a fundamental fact that rendered the dismissal unfair; that where the fact was crucial to whether there was a ground for claiming unfair dismissal, it was irrelevant that the employee could have brought a claim on another separate ground;"...

and the judgment goes on to deal with a situation where an Industrial Tribunal had based its decision on five grounds that were within the employee's knowledge. It held that even that made no difference at all to the principle, because the principle goes to the ground which relates to Section 57(1) and (2) of the 1978 Act not to Section 57(3).

It is clear from that decision that in such circumstances, it may well not be reasonably practicable to present a complaint until an employee discovers a fundamental fact which, through no fault of his own, he was not aware of. We add those words because it is apparent from Machine Tool Industry Research Association v Simpson that there is a first stage which an Applicant must get over, and that is referred to in the headnote in Machine Tool . He must establish that it was reasonable for him not to be aware of the factual basis upon which he could bring an application to the Industrial Tribunal during the currency of the three month limitation period. The head-note goes on:

"It cannot be reasonably practicable to expect an Applicant to bring a case based upon facts of which he is ignorant."

In our judgment the Industrial Tribunal's decision is flawed by reason of the fact that those authorities were not referred to. Mr Begg sought to support the decision on a number of different bases. First of all he submitted that the Tribunal had found as a fact that the positions of the three directors who were recruited in May 1993 were advertised in the press which the Applicant should have seen. In our judgment it is absolutely clear there was no such finding of fact. It was no more than an allegation by the Respondents and there was no finding of fact in relation to it by the Chairman at all. The next way in which it was sought to uphold this decision, was to argue that the Industrial Tribunal took the view that the Appellant had really given up any intention of ever reopening the matter, by virtue of the fact that he had accepted the payment to him in settlement of all outstanding claims. The Industrial Tribunal speaks of a "wound being reopened" and the submission is made that that is consistent with the Industrial Tribunal having decided that this particular Appellant was simply never going to reopen the matter, whatever his state of knowledge might turn out to be.

In our judgment that submission and that reasoning, if it is part of the reasoning of the Industrial Tribunal, will not hold water and cannot be sustainable in the light of the decision of Churchill v Yeates as approved by the Court of Appeal in the Machine Tool case. The fact that somebody mentally accepts payment in full and final settlement cannot be held against such a person if their mental state is that they are unaware at the time when they accept the payment in full and final settlement, that they have any grounds for complaining about the matter by reference to Sections 57(1) and (2). In other words they have no grounds, at the time when they accept the money, for making the case that all along it was not a genuine redundancy situation. It cannot be held against an Appellant that he acts in that way in that state of knowledge. In our judgment that ground also cannot here be prayed in aid in support of this decision. Contrary to the submission that was made by Mr Begg, the Industrial Tribunal do appear to have taken the view, despite the sequence of paragraph 5, that since the Appellant could have complained that he had not had alternative employment offered to him, and could have complained that he had not been consulted, that therefore it was reasonably practicable for him to present his complaint in time.

That reasoning of the Industrial Tribunal once again cannot withstand the decision which was not cited to them of Churchill v Yeates , because that situation is on all fours with the actual facts of Churchill v Yeates with which Mr Justice Browne-Wilkinson had had to deal, because there were in the case of Churchill v Yeates further grounds in paragraphs (2) to (6), which could have been ventilated in time, but the learned judge was careful to point out that that makes no difference to the ability of an applicant to rely on new ground (1), because new ground (1), namely the discovery of material which may lead to the conclusion that the redundancy was not genuine in the first place, goes to the honesty and genuineness of the reason given for the dismissal and goes to the point which has to be decided by the Tribunal under Section 57(1) and (2). So, to the extent that that played any part in the reasoning of the Industrial Tribunal here, and we believe that it did indeed play some part, then in our judgment such reasoning cannot be supported in the light of Churchill v Yeates .

For the sake of completeness, the admission by the Applicant that he had previously consulted a solicitor about personal matters, and had access to a solicitor if he so wished, which is a matter referred to in paragraph 4 of the decision, once again could not possibly support the conclusion which the Industrial Tribunal reached, since a person can only tell his solicitor about facts of which he is aware. Therefore that is, with respect, nothing to the point.

Finally, we have had to consider carefully whether the fact that the discovery was made so late, namely eleven months after dismissal, whereas in Churchill v Yeates the discovery was made within a matter of weeks, could be an independent ground upon which the Industrial Tribunal's decision could have been upheld. In our judgment, however, there appears to be nothing in the Industrial Tribunal's decision to indicate that it was concerned about the delay. The Tribunal plainly took it into account but dealt with it in a manner which did not involve any criticism of the Appellant. The Tribunal said at the end of paragraph 2:

"... Following his discovery he acted promptly and submitted his application, albeit 11 months after the dismissal."

The Tribunal did not then go on to find that eleven months was too long a time: so that on a matter of public policy of some kind, they could conclude that it was reasonably practicable on that ground.

Accordingly, for those reasons, we have concluded that the reasoning of the Industrial Tribunal unfortunately does reflect a misdirection of law on its part and in those circumstances we have had to consider very carefully whether we should send the matter back yet again to the Industrial Tribunal to reconsider the preliminary issue, or whether we should substitute an order that it was not reasonably practicable for the Applicant to have submitted his application within the three month limit and to extend time to 16 April 1994.

We have concluded in the light of all the facts that we have outlined in our judgment and in the light of the authorities which we have cited, that the proper course here is for us to decide that the appeal should be allowed and that we should order that it was not reasonably practicable for the Applicant to submit his application within the three month limit and that we should extend time to 16 April 1994 so that the matter can then be remitted to the Industrial Tribunal in order that they can consider the substantive issues arising out of the Appellant's claim for compensation for unfair dismissal.