Schultz v Esso Petroleum Co Ltd [1997] UKEAT 1066_97_0312

EAT

Schultz v Esso Petroleum Co Ltd

[1997] UKEAT 1066_97_0312 · 1997-12-03

JUDGE HARGROVE QC :

We have reached the conclusion that the first point taken in this appeal would be bound to fail. The appellant claims that he was unable to work from August 1994 until, at the latest, March of 97. The employer became suspicious, private investigators were put to work to observe the appellant. They learned, and I use the expression without any indication that there is any thing improper, that he was out and about driving, visiting public houses and book-makers. A disciplinary meeting was held. The employers found that he had lied about his state, and dismissed on 25th July.

The Originating Application was not launched until 17th April 1997, the dismissal having taken place in 1996. The tribunal held in the following terms:

"10. I noted that the effective date of termination was 25 July 1996. On 30 July 1996, the solicitors for the Applicant had written an appeal letter on his behalf, presumably as a result of instructions being received from him. Furthermore, the solicitors had written on 11 September 1996, again presumably on his instructions, to the effect that as he was not well enough to attend the disciplinary appeal, the Applicant would be sending in written representations.

11. Thereafter, I accept that the Applicant was no longer sufficiently well enough to give instructions to his Solicitors until February 1997. However, the period between 25 July and 11 September 1996 is a period of some 7-8 weeks, during which it appears that the Applicant was sufficiently well to give instructions to his Solicitors. His Solicitors would, of course, have been aware that the three months' time limit is not stayed pending any appeal against dismissal. ..."

The ground put forward is that the Industrial Tribunal did not have any evidence before it that the appellant was well enough to instruct solicitors. Reliance is placed upon an affidavit by the appellant.

There is in fact nothing in that contention, on the contrary, evidence was precisely what the Chairman of the tribunal did have. The solicitors' letter, and indeed a letter written by Mr Schultz at that time showed quite clearly that a person could if he could manage that type of instruction, manage to give instructions on other matters as well.

The second point of law is a somewhat different one. The applicant to an Industrial Tribunal under s. 111 of the Employment Rights Act 1996 , is permitted three months to decide whether or not to issue his proceedings. I leave out of account the discretionary matters. The result of this is that the effect of the decision of the Industrial Tribunal was to cut down the statutory period to seven to eight weeks. We consider that to be an arguable point and upon that one ground we shall permit the appeal to go forward.

There will be skeleton arguments to be filed and exchanged by 28 days before trial. The hearing should be listed as a Category C, and the length of hearing should be half a day.