Westmacott v London Borough Of Camden [1996] UKEAT 1117_95_1502

EAT
Westmacott v London Borough Of Camden
[1996] UKEAT 1117_95_1502 · 1996-02-15

JUDGE D PUGSLEY:

This is an application by Mr Westmacott of an appeal from the London (North) Industrial Tribunal which decided his application was not of time. It has been listed under the new procedure.May we begin by saying that Mr Westmacott has put before us his arguments with skill.Let us begin with the factual background. The Applicant was employed as a team administrative assistant from 4 July 1994 until 1 November 1994. He was dismissed and given one month's wages in lieu of notice. His claim is, as now put, for wrongful dismissal and that he says:
"3 ... the Respondent breached the terms and conditions of his employment by not offering him the right of appeal against his dismissal."
It is right, I say, that in their Notice of Appearance, the Respondents say:
"4. "The applicant was dismissed for capability not gross misconduct. As such, there is no right of appeal ..."
By a letter dated 1 November 1994, signed by Anne Turner, principal officer, who had chaired the panel, this is referred to in paragraph 8 of the decision, it was said:
"Having considered your managers and your presentation my conclusion is that your behaviour in the post of administrative assistant is incompatible with the expectations of this authority and I therefore confirm that your contract is terminated with effect from 1st November, 1994.
Pay in lieu of notice will be made to you.

I must advise you that there is no appeal against this decision."

The story may be taken up from the decision of the Industrial Tribunal in paragraphs 9, 10 and 11, we summarise, where they say that the Applicant was aggrieved by this decision. He had not (as he is perfectly entitled to) chosen to have a Trade Union representative or a work colleague at the meeting.Initially, he did not consider that he had any cause of action against the London Borough of Camden, but in the first or second week of February 1995, he met a Ms Fathers in Camden High Street. She appeared before the Tribunal under a witness summons. She was the note taker at the panel and she told him that, in her opinion, he had no cause of complaint. She took the minutes of the disciplinary hearing and she remembered the chair of the panel offering the right of appeal.The Tribunal note that in fact the minutes produced did not mention any right of appeal. It was this conversation with Ms Fathers that prompted the Applicant to consider the Respondents had breached its own procedures by not offering the right of appeal. He applied to the London Borough of Camden, but the right of appeal was refused him. He took advice from the Hendon Citizens' Advice Bureau. The Tribunal decision notes this advice may or may not have been erroneous. In the event, he obtained an Originating Application form from the Hendon Jobcentre where he was signing on, and put in his Originating Application.In paragraph 11, the Tribunal come to this view.
"11 We find, as a fact on the evidence, that it was reasonably feasible for the Applicant to have presented his complaint in time. The Applicant could have presented his complaint any time prior to meeting Ms Fathers. He was aggrieved at the decision to terminate his employment. According to his own evidence, he met Ms Fathers in the first or second week of February 1995 and this prompted him to renew his grievance. He could, even then, have presented his Originating Application in time. He was signing on at the Jobcentre and could have obtained an Originating Application form from the Jobcentre. He chose, however, to wait a further six or seven weeks before putting in his Originating Application. Clearly, it was reasonably feasible for him to have presented his Originating Application in time, even after meeting with Ms Fathers, and we have no jurisdiction to hear his Application that he was wrongfully dismissed."
In his argument to us Mr Westmacott points out that the sentence in the Tribunal decision in paragraph 9:
"9 ... He applied to the London Borough of Camden, but the right of appeal was refused him."
Mr Westmacott told us that he applied on 6 March and it was not until 28 March that he had a reply. His request was that there should be a right of appeal and that, he says, on 23 March, five days before he put in the notice of application, that he received a reply. He urges us to conclude that until the Council had actually had his request and turned it down it was perfectly reasonable for him not to put in the Originating Application". In our view, the Tribunal correctly summarised the law in paragraph 10 of their decision where they say:
"10 ... in section 67(2) of the Employment Protection (Consolidation) Act 1978 which are analogous to section 7(c) of the 1994 Order, lie somewhere between `reasonable' on the one hand and `reasonably physically capable of being done' on the other. The best approach is to read `practical' as the equivalent of `feasible' and to ask, was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months."
In our view that is a very apt and concise summation of the law. We consider this is pre-eminently a matter for the Tribunal in the first instance to weigh. We cannot identify any error of law and we are bound to say that we do not think the fact that the Applicant waited so long, three or four weeks before applying to the London Borough of Camden, to exercise his right of appeal, in any way affects our decision.That matter was before the Tribunal, but even it if was not, this is not a case in which it can possibly be said that there is any error of law that can be identified as justifying this case proceeding to a full hearing.