Sothinathan v British Telecommunications Plc [1997] UKEAT 536_97_2107

EAT
Sothinathan v British Telecommunications Plc
[1997] UKEAT 536_97_2107 · 1997-07-21

JUDGE J HULL QC :

This is an appeal to us by Mrs Sothinathan, who was employed by British Telecommunications at their premises in NW2 as a Clerical Officer. She was first employed by them on 4 January 1977 and most unhappily she became seriously ill in 1993 (or perhaps before that) and she required treatment. Her employment was not ended immediately. It went on until 17 June 1994, by which time she had been ill for more than a year.The employers had apparently dealt with the matter humanely and pleasantly and with a view to protecting Mrs Sothinathan's interest, but eventually she could not come back to work and she was given what was called retirement on medical grounds. She had the advantage of an enhanced pension payment and it was treated as though she was retiring, although the reality was very probably that she was, in fact, dismissed on the ground of illness; she was told they must consider retirement and so forth. It looks as if it might well have been a dismissal, but it was on terms which gave her pay, a pension and a lump sum payment. So British Telecom, no doubt, felt, and they were entitled to feel, so far as we can see from the little we have seen, that they had dealt with the matter properly.Then by March 1996, I am pleased to say, the Industrial Tribunal, from whom this appeal is brought, found that then Mrs Sothinathan had recovered her health. We are told by Mrs Sothinathan and we accept, of course, for the purposes of today's proceedings, that in fact she had another bout of illness which lasted until the beginning of July, when she came out of hospital again and was by now, although she was feeling somewhat exhausted, not ill.She complained to the Industrial Tribunal in her IT1 five months later on 2 December 1996; that is to be found at page 7 of our bundle. There were a lot of notes added to this by Mrs Sothinathan which we have read. She sent us a bundle of a large number of documents (I think 69 pages altogether, which we have all read) and in her IT1 she complained as follows: that British Telecom were guilty of refusal of reinstatement in her job after early medical retirement.What she had, in fact, been doing from July onwards was to write in a most pressing way and to ring up, apparently to such an extent that it was found to be a nuisance, asking for her job back. British Telecom replied that she had retired, that the job was no longer open, that the office in which she worked had been moved to Milton Keynes, matters of that sort. She complained that it was, as she put it, unlawful and illegal not to reinstate her in her job. That was her complaint and in their IT3, British Telecom said (this is at page 9 of our bundle): She had been employed by them up to 17 June 1994 and her employment was terminated due to capability and at her own request she was medically retired. She was advised of her right to appeal against the decision to medically retire her which she did not exercise and, as a result, she received enhanced pension benefits. All that, so far as we can judge from the documents, is perfectly true and accurate. They go on to set out more of the history of the matter and how she had applied for her job back, to put it shortly, and they wrote:
"The Respondent denies that the Applicant has any statutory and/or contractual right to be re-employed by the Respondent as alleged or at all."
So the matter came before the Industrial Tribunal. They sat at London (North) under the chairmanship of Mr Adamson, with two industrial members on 7 April 1997. They, we think, must have accepted the legal proposition made by British Telecom, which was that there was clearly no jurisdiction to consider a complaint of refusal to re-employ Mrs Sothinathan and that the true nature of her complaint was that her employment should have continued, albeit in a state of suspension and that the only matter they had jurisdiction to try, if they had any jurisdiction at all, was the complaint, as it became, of unfair dismissal. They say, putting it very shortly, in their decision:
"The Applicant complains that she was unfairly dismissed and seeks an order for reinstatement."
They were quite right to seek around to see whether her case could be put in a form in which they could consider it and they did. Then they had to consider the question of time. Under Section 111 of the Employment Rights Act 1996:
"A complaint may be presented to an industrial tribunal against an employer by any person that he [and of course that includes she] was unfairly dismissed by the employer."
Then it goes on:
" ... 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."
So that was what they had to enquire into and it was all that they did, on this occasion, have to enquire into. They found the facts about her illness. They found the facts about her repeated applications for re-employment, starting in April 1996 and they say this:
"In considering whether the Tribunal should consider the Applicant's complaint we had regard to the provisions of section 111. ... In view of the Applicant's illness we considered that it was not reasonably practicable for her complaint to be presented before the end of the period of three months of the effective date of termination of her employment. However the Applicant had recovered by March 1996. We then considered what further period would be reasonable in this case. When the Applicant had recovered from her illness she was in the same position as any other person who had not suffered that illness. Even allowing for the fact that the Applicant may not have fully recovered by March 1996 we are satisfied that, having regard to the Respondents repeated statements to the Applicant that it would not re-employ her, that a reasonable period to bring a complaint would be by the end of July 1996 at the latest. As the Applicant did not do so we find that the complaint was presented to the Tribunal beyond the period allowed for presenting such a complaint and the Tribunal therefore does not have jurisdiction to deal with the matter."
That of course would have been said, even if they had given her credit (if I can use that expression) for the fact she was unwell between March and July. From the beginning of July to the beginning of December is five months, and she had taken therefore longer than three months on any view.It was not a case of discretion for them here. They were bound by the Act of Parliament not to consider it, unless they were satisfied of these matters, and they were not satisfied that it was reasonable for her to have presented her complaint after the end of July, indeed as late as 2 December 1996. They had heard, of course, what Mrs Sothinathan has said to us, namely that during this period from July onwards and, indeed, before, she had been writing to the employers. If, indeed, she had had a cause of action arising out of refusal to re-employ her, if that had been something she could properly complain of, she might well be entitled to say, "Well it was not until October or November that they finally refused to have any more to do with me and said, finally, they would not re-employ me", but that was not her cause of action. The Tribunal had said, and rightly said, that the only matter they could consider was whether her dismissal in June 1994, if it was a dismissal, was unfair and that was what they were considering.So whichever way one looked at it, they came to the conclusion they could not hear her complaint. Now, Mrs Sothinathan complains to us, and this appeal is in our list under our Practice Direction to see whether we can, with Mrs Sothinathan's assistance, find any fairly arguable point of law on which we could reverse or vary the decision of the Industrial Tribunal given in April 1997. We have read all the documents which Mrs Sothinathan has sent to us. We have heard everything that she has said to us today and we have, of course, read all the documents in our bundle and in particular, the decision of the Industrial Tribunal.We have come to the conclusion that we cannot find here any ground of law which is fairly arguable and on which the appeal could properly proceed. So it is our duty to dismiss the appeal at this stage and say that it must not go any further.We wish to express our very sincere sympathy for Mrs Sothinathan in the illness which she has suffered and her resultant loss of employment. We are very pleased to hear that she has recovered and we hope that she continues with no further health problems and soon obtains employment, but unfortunately we cannot help her in any way here today, so the appeal is dismissed.