Top Rank Ltd v Dowding [1997] UKEAT 233_97_2103

EAT
Top Rank Ltd v Dowding
[1997] UKEAT 233_97_2103 · 1997-03-21
MR JUSTICE KEENE : This is an appeal against a decision of an Industrial Tribunal Chairman registered on 27th January 1997 that the respondent's complaint of unfair dismissal was presented to the Industrial Tribunal within the time limit laid down in the Employment Rights Act 1996 s.111(2). The respondent at that time was of course the applicant.S.111(2) of that Act reads as follows in so far as it is material:
"... an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
The date of termination of the present respondent's employment, was 18th February 1996.The tribunal found that it was not reasonably practicable for him to present his complaint before the end of the three month period. It also found that he did present the complaint within a reasonable further period.The appellant, as the employer, does not challenge the first part of that finding, namely, that it was not practicable to present the application within the prescribed three month period. But it does attack the decision that the complaint was presented within a further period which the tribunal considered reasonable.The basic facts of the case are that the respondent was employed by the appellant at a Mecca bingo hall from 11th December 1993 until the date when he resigned. His application to the Industrial Tribunal that he had been unfairly dismissed was received on 13th September 1996, and this clearly was outside the period of three months laid down in the legislation.The respondent was and is a young man, having been born on 15th March 1976, so that he was aged 20 in the summer of 1996. His claim of unfair dismissal originated with an attack on him on the evening of 22nd December 1994 outside the appellant's premises by five young men. He was injured and was taken to hospital for treatment. Two of the gang who attacked him turned out to be son and son in law of the lady who was the head of administration at the Mecca bingo hall, Eastbourne. Court proceedings were taken, and indeed the son in law of that lady was dealt with by the court. The respondent claimed that there was persecution, intimidation and embarrassment at work, and that the manager had exacerbated matters by employing the daughter of the head of administration, who was the wife of one of the gang members. The claim by the respondent was that although in form he resigned, in fact he was constructively dismissed.His case was that he had been mentally upset by what had occurred and what this had led to him being unwilling at first to take any step that would bring the matter alive once more. He was not at that time receiving psychiatric treatment, but he went at some date in September or October 1996 to see the Community Psychiatric Nurse and he was referred to a consultant, Dr Zakrzewski. An appointment was made to see him some time later on 4th December 1996. He duly saw the consultant and has been under his care since that date. A letter from the consultant was put before the Industrial Tribunal dated 6th January 1997 which stated:
"This is confirm that Mr Matthew Dowding has been my patient since the 4th December 1996 and he is undergoing active treatment for his condition which has lasted for the last several months."
Thus there was evidence that his psychiatric problems dated back some months. There seems also to have been evidence from the respondent, or his father, that the respondent was put on antidepressants.However, at some date in June 1996, his father persuaded him that his mental condition would not improve unless he took some action. At some date in that summer he consulted solicitors. The Industrial Tribunal seems to have proceeded on the basis that that was in August 1996. The tribunal certainly had documentary evidence before it that the solicitors wrote to the employer on 16th August 1996 a letter which was in effect a letter before action. It set out the respondent's allegations and said that they had advised him to pursue a claim for unfair dismissal. The letter then concluded by saying that if the employer wished to make proposals for compensation, it should contact them within the next seven days, failing which they would advise him to immediately lodge an application with the Industrial Tribunal.The tribunal decision states that the 13th September, which was the date of the originating application being lodged, was some five months after the respondent had resigned. That was inaccurate; it was in fact some seven months later, though in our view not a great deal turns on that particular discrepancy. We have evidence, although it seems it may not all have been before the tribunal below, as to further correspondence which may help to explain the lapse of time between the middle of August 1996 and 13th September when the originating application was presented to the Industrial Tribunal. In its conclusions the tribunal stated:
"8 The Tribunal is satisfied that the applicant was in a confused mental state as a result of the alleged intimidation and persecution at work and he was at first reluctant to claim unfair dismissal, he having resigned. The Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months from the termination of his employment, and finds that it was presented within a reasonable further period."
That conclusion is now attacked by Mr Ritchie on behalf of the appellant on two grounds. The first of those is that the tribunal has given no clear and adequate reasons for the conclusion that it was presented within a reasonable further period. The second is that that conclusion amounts to a failure by the tribunal properly to exercise its discretion.The first of those is presented on the basis that the appellant is entitled to know why it lost and that paragraph 8, the concluding paragraph, goes straight from the reference to the respondent having been in a confused mental state to its conclusion on reasonableness and does not spell out any reasoning. So far as the improper exercise of discretion is concerned, Mr Ritchie emphasises that there is an unexplained period of time between June 1996 when the respondent's father persuaded him to take some action and 13th September 1996 when the originating application was lodged. It is emphasised in particular that any neglect or delay on the part of his solicitor has to be taken to be the responsibility of the lay client, in this case the respondent. There is good authority to that effect and as a proposition of law we accept that.We do not propose for present purposes to deal with the ground of appeal which concerns the adequacy or otherwise of the reasons given by the Industrial Tribunal, because we propose to find that there is merit in the second ground of appeal which has been presented to us as to the exercise of the tribunal's discretion. That is a discretion with which this appeal tribunal is normally most reluctant to interfere. It is, essentially, a matter for the Industrial Tribunal's discretion as the fact finding tribunal, and we would only interfere if it is so unreasonable a conclusion that no tribunal properly exercising its discretion could have arrived at that result or if it has gone wrong in some legal aspect of the decision.What has troubled us here in particular is not simply the delay between a letter which was written on 16th August to the appellant and the 13th September, when the application was lodged, but the fact that there is some evidence that the respondent first saw a solicitor about this matter on the 19th July. There is in our bundle a letter written by the respondent's solicitors dated 19th August 1996 which is written to the respondent and refers to a meeting between them on 19th July 1996. The respondent's father, who has appeared for him today, has confirmed that there was indeed a meeting with their solicitors on 19th July and that there was not another meeting between that date and the letter written by those solicitors to the other side on 16th August almost a month later. That is a wholly unexplained delay.We do not of course sit here as a tribunal of fact, but it may be that that particular letter of 19th August which refers to a meeting on 19th July was before the Industrial Tribunal Chairman at the hearing. We say that because first of all the exhibits list relating to the hearing before that Chairman is clearly not comprehensive, The exhibits list refers solely to the statement from the consultant psychiatrist which was a document dated 6th January 1997 to which we have already referred. But it is clear from the subsequent letter from the Chairman dated 11th March 1997 that he had before him at least the letter of 16th August 1996 written by the respondent's solicitors to the present appellant. He refers to that letter of 16th August in terms. It may be that, because this was a hearing where the appellant relied solely on written representations, a certain amount of material was before the Chairman which is not listed in the exhibits document. Mr Dowding who appears today on behalf of his son told us at one point that he thought that the Chairman did have before him the letter of 19th August, although he says very fairly that he is not sure.We conclude that on the balance of probabilities that letter was before the Chairman on that occasion, and if that it is right then it does seem from reading the decision letter that the Chairman has not taken that consideration into account. The fact that the respondent went to see solicitors as early as the 19th July would have been a highly material fact for the Chairman to have taken into account in the exercise of his discretion. If he left it out of account, then that is something which in our view would have been to disregard a material consideration and that in itself would be an error of law. We take the view that this matter is going to have to go back to the tribunal Chairman for him to reconsider on a proper basis. We do that because, while the delay here between 19th July and 16th August may in the first instance be the fault of the solicitors, the respondent has to bear the responsibility for that in terms of delay. The position in these courts is that delay on the part of the solicitor is something for which the lay client has to suffer and the lay client has to be left to take whatever remedy he has against his solicitor if his position has been prejudiced by some error or inaction on the part of the solicitor.But we conclude, with I may say some regret, that this matter does have to be remitted to the Industrial Tribunal Chairman for this to be reconsidered, because it seems on the face of the material which we have seen that there has been an error of law in arriving at the present decision.This appeal is therefore allowed and the matter will be remitted to the Industrial Tribunal Chairman.