Palmer v Britannia Building Society [1997] UKEAT 350_97_2307

EAT
Palmer v Britannia Building Society
[1997] UKEAT 350_97_2307 · 1997-07-23
MR JUSTICE KIRKWOOD : There is listed before this Appeal Tribunal today a preliminary hearing of an appeal by a Mr Palmer against a finding by a Chairman of an Industrial Tribunal sitting at Bristol on 20th January 1997, that his Originating Application presented in respect of claims of wrongful dismissal and unfair dismissal was presented out of time, and that the time should not be extended.On 21st July 1997 solicitors wrote to the Employment Appeal Tribunal saying that they had received Notice of Hearing but they had not been able to obtain instructions from Mr Palmer. They also said that:
"They returned the papers to Mr Palmer some while ago and we are not sure whether or not he wishes to proceed with his appeal. In the circumstances we ask this matter to be adjourned for period of say 7 days to allow us to further attempt to contact our client."
That application was refused by the Registrar. That refusal was communicated to the appellant's solicitors.Today, 23rd July 1997, those same solicitors sent by fax a letter:
"The position unfortunately remains as in our fax of 21st July 1997. We do not have specific instructions to proceed, and in the circumstances we ask that this matter is put back until next Wednesday, and we shall endeavour to obtain instructions from Mr Palmer. We are not sure whether or not he still wishes us to proceed."
We have considered those letters. We have reached the conclusion that ample notice has been given of this hearing and that those letters disclose no good reason why we should not dispose of the matter today.The appellant was dismissed from his employment on 22nd August 1996. In respect of each of his complaints, the time limited by statute and the Rules for presentation of his Originating Application was three months, expiring on 21st November 1996. The appellant went to see a solicitor, a Miss Kwok, by appointment on 8th November 1996. Miss Kwok was heavily engaged in other matters. Miss Kwok drafted the appellant's Originating Application on 19th November 1996. She discussed it with him on the telephone on 19th and 20th November 1996. The appellant signed it on 21st November 1996. Miss Kwok then left instructions for her secretary on a tape for the Originating Application to be sent to the Industrial Tribunal by fax on 21st November 1996. That was not done, it was sent by fax on 22nd November 1996, so it was one day late and, therefore, out of time.S.111 of the Employment Rights Act 1996 provides:
"(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.
(2) Subject to subsection (3), an industrial 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 Industrial Tribunal considered whether it was reasonably practicable for the complaint to be presented within time. In its extended reasons the tribunal said this:
"3 In order to be able to extend the applicant's time for bringing these proceedings I have to be satisfied that it was not reasonably practicable for the applicant to have presented them in time. I cannot be so satisfied. Miss Kwok was first instructed on 8 November 1996. She undertakes employment work and was well aware of the requirement to present these complaints within the relevant three month time limit. Instructions which she left for the secretary on tape proved to be inadequate. There was always a risk that instructions left in this way would not be carried out in time.
Miss Kwok should have contemplated and made more precise arrangements for the presentation of this complaint in time. The Tribunal cannot therefore consider the applicant's unfair dismissal complaint and wrongful dismissal claim."There were in fact two features of this case. The first is that the appellant did not go to a solicitor at all until two weeks before the expiry of the time limit. Then, when he did so, the solicitor, though experienced in employment matters, failed to ensure that the time limit was complied with. That was the solicitor's fault. The decision of the Chairman of the tribunal that he could not be satisfied as required by s.111(2)(b) is unimpeachable, and this appeal is unarguable, and will be dismissed at this stage.