Butlin v Smithkline Beecham Consumer Healthcare [1996] UKEAT 660_95_1207

EAT
Butlin v Smithkline Beecham Consumer Healthcare
[1996] UKEAT 660_95_1207 · 1996-07-12
MR JUSTICE MUMMERY (PRESIDENT): This appeal raises a question on time limits. It is an appeal against the unanimous decision of the Industrial Tribunal held at London (North) on 28th April 1995. The tribunal decided that, in relation to a claim by Miss Butlin for unfair dismissal against her former employer SmithKline Beecham Consumer Healthcare, she had presented her application out of time, and that they could not extend the time, because, in their view, they could not satisfied that it was not reasonably practicable for her present before the end of the three month statutory period. The case was dismissed.Miss Butlin was sent the extended reasons for that decision on 10th May 1995. She served a Notice of Appeal on 19th June 1995, stating as grounds of appeal that the tribunal had misdirected themselves in determining that she had ample time in which to take advice and put in an originating application before the three month time limit expired; and that the tribunal's decision was perverse, because they did not give sufficient weight to her argument that she had been misled by her employers about a matter relevant to the time limits.We have explained to Miss Butlin, who has presented her own case clearly, that we can only hear an appeal on a point of law. The purpose of the preliminary hearing is to see whether the grounds of her appeal raise a reasonably arguable legal question. The relevant law is contained in Section 67(2) of the Employment Protection (Consolidation) Act 1978 . That prohibits an industrial tribunal from considering a complaint of unfair dismissal, unless it is presented to the tribunal at the end of the period of three months beginning with the effective date of termination.The facts in this case are that Miss Butlin did not present her case to the Industrial Tribunal within three months of the effective date of termination. The tribunal found that the effective date of termination of her employment as territory manager was 18th July 1994. Her application to the Industrial Tribunal complaining of unfair dismissal was not presented until 28th November 1994. That is not the end of the matter. The provisions of Section 67(2) state:
"... or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was reasonably practicable for the complaint to be presented before the end of the period of three months."
That means that a tribunal has no discretion to extend the time for such a period that it considers reasonable, unless it is satisfied on that matter. The crucial question in this case, as in so many cases of this kind, is, was; it reasonably practicable for this complaint to be presented before the end of three months? It is only if it was not reasonably practicable to do that, that the tribunal can then consider whether it is reasonable to extend the time.The facts of this case have been clearly found in the decision. Miss Butler was employed by SmithKline as a sales manager. After two written warnings she was summoned to a disciplinary hearing. That took place on 18th July 1994. (We need not go into the details of the hearing. It is the result of it that matters.) At the end of the disciplinary hearing, Miss Butlin was informed that she was being dismissed and would be released immediately from her contract.We have seen the letter written to her. The letter is dated 18th July 1994. It says:
"Further to our meeting on 18th July 1994, I am writing to confirm that as a result of disciplinary proceedings and subsequent to two written warnings you have been dismissed from your post of Retail Territory Manager."
Details are then given of alleged areas of non-performance. It is stated at the end of the letter that she has five working days from 18th July in which to appeal against the decision. That is to be an appeal in writing to the Head of Human Resources and to the Sales Director, giving reasons for the appeal.Miss Butlin did appeal. She wrote a letter on 20th July 1994 to SmithKline acknowledging the letter of 18th July and saying:
"I wish to appeal against my dismissal, as I feel the event leading up to it, have not been given a fair hearing."
A date for hearing the appeal was fixed for 16th August 1994. Miss Butlin was unable to attend. It was rearranged for 24th August 1994. The result of the appeal, eventually set to be heard on 26th September 1994, was that the decision to dismiss her was upheld. That was confirmed by letter dated 29th September 1994, (although that letter erroneously referred to the date of the appeal as 20th September 1994).The three months period had still not expired. But no proceedings had been presented to the Industrial Tribunal.In the course of her evidence to the tribunal, Miss Butlin acknowledged that she appreciated that she had been dismissed from 18th July 1994, and that she had not been employed by SmithKline from thereon, although she hoped that, as a result of her appeal hearing, she would be reinstated. She was so shell-shocked to receive the letter which told her of the appeal decision, that she went to consult a Citizen's Advice Bureau. She took her letter of 18th July 1994 with her at the first interview, but was told to make another appointment since she would need to see an experienced law officer. She was unclear as to the date on which she had subsequent interviews, but said that in those subsequent interviews she did not take any correspondence with her. She told the CAB that her employment was terminated on 20th September 1994, which was the erroneous date referred to in the letter of 29th September 1994. The tribunal said this:
"Miss Butlin would give no satisfactory explanation as to why she did not eventually file her Originating Application until 25 November (received by post at COIT on 28 November)."
The tribunal then referred to Section 67(2) and set out the reasons advanced by Miss Butlin as to why it was not reasonably practicable for her to institute proceedings before the expiration of the three months. Her reasons were these (paragraph 6):
"(1) Her area sales manager [ Mr Stevenson ] told her that she should not bring a claim while her appeal was pending.
(2) He went on to say that if she failed in her appeal, she should not bring a claim since it would stand no chance of success.(3) After the appeal decision to confirm her dismissal, Miss Butlin was "shell-shocked" and did not think about going to the Citizens Advice Bureau for one or two weeks (she was not very specific about the date).(4) Having finally decided to go the CAB, although she took the letter of 18 July with her, she did not show it to anyone but simply told them her story. The matter was not dealt with at the first interview since she was advised that she had to see an experienced legal officer at the bureau.(5) When she eventually did see the legal officer, she did not bring with her the letter of 18 July nor any other correspondence. She merely told the officer that she had been dismissed on 20 September. (b) She had been advised by Mr Stevenson (who she regarded as a friend), that the three months period only began to run from the finalisation of the appeal."In those circumstances, the tribunal concluded that they were not satisfied by Miss Butlin that it was not reasonably practicable for her to bring her application within the three months. They said:
"7 Even if Miss Butlin believed that her employment with the Respondents did not terminate until her appeal had been determined (and at the hearing she acknowledged that this was not the case) she still had ample time in which to take advice and to put in her Originating Application before the three month time limit expired. We find it very difficult to accept that if she had gone to consult a CAB before 17 October, they would not have asked enough questions or sought supporting documentation to realise that time was running out. ..."
They therefore refused to extend the time.The arguments which Miss Butlin has presented to us are a re-run of the arguments which she unsuccessfully presented to the tribunal. She has told us of a few additional points not dealt with in the decision and other matters which she was concerned with at the time: A split up with her boyfriend; worry about mortgage repayments and being unwell because of stress. These matters do not however raise points of law which we can take into account on this appeal.We have to look at this in a legal way. Is there anything legally wrong with the tribunal's decision, that it was reasonably practicable for this case to be presented within three months of 18th July 1994. That is a decision of fact by the tribunal. They have not misdirected themselves in law. They looked at the correct section and applied it in a common sense way to the facts they found. We cannot interfere with the facts they found. In our view, we cannot interfere with their decision of this point, because there is no legal error in it. On the evidence before them and the findings of fact they made, the tribunal were entitled to conclude that this was a case where they could not extend the time.Miss Butlin has conveyed to us her strong feelings about the case, and the sense of wrong that she feels, but the fact is that the simple form which she filled in, the IT1 form, was not signed by her until 23rd November 1994. It was not received in the Industrial Tribunal until 28th November 1994. It was outside the three month period laid down by statute. We agree with the Industrial Tribunal that on the facts, it was reasonably practicable for her to bring the case within the three months.The fact, which Miss Butlin repeated to us a number of times, that she thought she had more time than she had, does not mean that it was not reasonably practicable for her to bring the case within the three month period. There is no point in allowing this appeal to progress. It cannot succeed. We therefore dismiss it.Leave to appeal to the Court of Appeal is refused.