Radford v Brecknock Borough Council [1997] UKEAT 965_96_2901

EAT

Radford v Brecknock Borough Council

[1997] UKEAT 965_96_2901 · 1997-01-29

MR JUSTICE MORISON (PRESIDENT): Mrs Radford wishes to appeal against a decision of an Industrial Tribunal Chairman sitting alone. The Chairman concluded that her complaint of unfair dismissal was presented to the Tribunal out of time and therefore the Tribunal did not have jurisdiction to deal with it. Mrs Radford had been employed by the Brecknock Borough Council as a Resident Warden from 13 July 1987 until she was invited to resign in July 1995 and subsequently notified that her employment was being terminated as from 7 September 1995. The reason for her dismissal appeared to relate to her health.

Having had her employment terminated, nonetheless she continued to live in the sheltered accommodation, which required somebody to act as a Resident Warden, and indeed she assisted the residents there who sought her help. The question arose as to why it was that she had not presented her complaint until 21 May 1996, which was some seven months or so after her dismissal. The Tribunal investigated that question and in paragraph 3 said this:

"She did not appeal because she considered that there would be no point. She realised that she could complain of unfair dismissal but did not know there was a time limit. Moreover, she decided to wait to see if her post would be filled. If not, then she considered that she would have a strong claim to be paid a redundancy payment. In the result her post was not filled for 6 months. She then consulted her solicitor in March 1996 and presented a complaint on 21 May 1996. She said "I decided to complain of unfair dismissal because I thought I had a good case. That was because of the way I was dismissed. I thought it was so disgusting. I had worked for 8 years, 24 hours per day, 7 days a week. I did not even have a day off. But then I was told it was for lack of capability. How could it be for lack of capability?" She confirmed, however, that those were all matters which she knew in July/September 1995. When asked (twice) whether it was reasonably practicable for her to present a complaint within the 3 months she confirmed, quite clearly, that it was."

It seems to us that that was a decision based upon the evidence which was presented to the Industrial Tribunal. Mrs Radford wishes to advance a Notice of Appeal in this case. The matter has been listed for a Preliminary Hearing. She, of course, was notified of this date. She has not appeared before us. She is of course not required to do so and we consider her claim in her absence. We have paid particular attention to the lengthy submission which was made to the Industrial Tribunal dated 16 May 1996, which formed part of her formal complaint to the Tribunal. What she there said was that:

"The Council dismissed me on 7th September 1995 paying me 1 month's pay in lieu of notice. They allowed me to remain in the flat until they found a replacement who started work on the 3rd March 1996. I know my replacement, who left Talgarth as a young woman, when I was still a girl. My replacement is therefore considerably older than I and must be very near 70 years old."

She submitted that her dismissal was grossly unfair and then concluded in the final paragraph:

"I appreciate that in strict legal terms this application of mine is outside the normal time limits. However as aforesaid I remained in the warden's flat until my replacement started on 3rd March 1996. I felt it was impracticable for me to properly assess the situation until I saw what the Council did by way of a replacement. I would add that the residents continued to ask for my help whilst I remained in the flat as it was inevitable that they would given that the deputy only worked a few hours a week. I hope that in the circumstances I may still be permitted to have my claim considered."

We have given careful consideration to these matters to the Notice of Appeal and to the Tribunal's decision. We consider that Mrs Radford has considerable merit in her position, but as a matter of law, it seems to us that the Tribunal's decision cannot be faulted. It must be recognised that people who are aware of their rights to make a complaint of unfair dismissal, must get on with the matter as soon as practicable. The Tribunal must consider the matter not just from the perspective of the employee but also of those against whom any such complaint is made. It is important that complaints are made soon after the matters giving rise to the complaint have occurred.

The test which the Industrial Tribunal Chairman applied was the correct one. It seems to us that he has correctly applied the law to the facts of the case, although, as we say, in the circumstances of this case we have some considerable sympathy with Mrs Radford's position. Nonetheless we are satisfied that the Tribunal came to the correct decision and one which is not arguably wrong in law. Accordingly the appeal must be dismissed.