Ely v Ellis (t/a Sterling Chauffeur Services) [1998] UKEAT 1004_97_0602

EAT
Ely v Ellis (t/a Sterling Chauffeur Services)
[1998] UKEAT 1004_97_0602 · 1998-02-06

JUDGE C SMITH QC :

This is an application by Mr Ely for leave to proceed to a full hearing of his appeal against a decision of an Industrial Tribunal held at Brighton on 30 June 1997, when the Chairman, sitting alone, held that the Applicant's complaint of unfair dismissal was out of time and should be dismissed.We have had a very helpful submission made to us by Mr Stewart, on behalf of the Applicant, and we remind ourselves that he only has to show an arguable ground for this matter to proceed to a full hearing. At the heart of the submission lies an assertion that it may be, so it is submitted, that the Industrial Tribunal acted perversely or impermissibly in some of the findings that the Chairman made in relation to the facts of this matter and that accordingly, the matter should be allowed to proceed to a full hearing, so that the notes of evidence can be looked at to see whether this can be made good. It is submitted to us, on behalf of Mr Ely, that this is an unfortunate case, as it is said, where the Applicant only belatedly realised that he may have been dismissed for asserting a statutory right so that he was in a position of being able to take advantage of Section 104 of the Employment Rights Act 1996 , on the basis that it was an automatic unfair dismissal which would not have required the two-year qualifications.The nature of the submission that is made to us, is to the effect that it may well have been the position that to the extent that the Applicant did seek advice immediately after his determination of his employment in May 1996, it may well be the case that once those from whom he was seeking advice, which it is submitted was only somebody manning the desk at the Advice Bureau and somebody over the telephone from Legal Direct, that those persons may well have simply brushed the matter aside in the sense that all they may have done was simply to enquire of the Applicant whether he had the necessary two-year service to be eligible to bring a complaint for unfair dismissal and on learning that his employment had only started on 14 November 1995 and that the effective date of termination was 31 May 1996 may at once concluded, without further ado, that he could not possibly have any rights under the Employment Protection legislation. So it is submitted that for those reasons the matter ought really to go to a full hearing, so that the matter can be investigated with a view to seeing whether it can be established that the Industrial Tribunal reached a perverse conclusion as it is arguable, therefore, that they did. That is to summarise the submission.We have to look at that submission in a moment, but, just putting the matter very briefly, the facts, as found by the Industrial Tribunal, were that the Applicant had commenced employment on 14 November 1995 and that the effective date of termination was 31 May 1996 and the Originating Application was not received and therefore not presented until 24 January 1997, so it was very well out of time.Then the Chairman, having reminded himself that the time limit was, of course, that provided for by Section 111 and that the question was whether it was reasonably practicable for the complaint to be presented within three months, the Chairman then went on to outline, in paragraph 8, carefully in our judgment, what the Applicant was asserting and at paragraph 8(c) the Industrial Tribunal recorded that the Applicant had asserted that within the period of three months following the effective date of termination the Applicant had consulted Solicitors, the Citizens Advice Bureau and an organisation called Legal Direct, seeking to obtain advice on bringing proceedings before an Industrial Tribunal and had been advised he could not do so as he did not have the two years qualifying period of employment.The Industrial Tribunal, having recorded those assertions and noted, as the Chairman accepted, that it was only in January 1997 when the Applicant read an article in a trade union magazine that he became aware that the two year qualifying period did not apply if his dismissal was for asserting a statutory right and that then immediately thereafter he presented his Originating Application. But in our judgment, the important point is that the Chairman found the facts that he did in paragraph 9. The Chairman first of all found that the Applicant was aware that he might have the benefit of various unspecified rights and within three months he consulted three different legal advisers.The Industrial Tribunal found that it was inconceivable that he did not discuss with those advisers the circumstances which allegedly led to his dismissal. Complaint is made that that is an improper inference for the Industrial Tribunal to have made and that they should not have found that he consulted with three different legal advisers because that is a misrecording of the evidence because he consulted with a Solicitor before the effective date of termination but in our judgment, one really cannot go behind the clear findings of the Industrial Tribunal as set out in sub-paragraphs 9 (a) and (b). Further, in our judgment, the inference that is drawn at paragraph 9(b) is the kind of inference that a finder of fact, as the Chairman was, was fully entitled to draw in all the circumstances.In our judgment, accordingly, when the Industrial Tribunal came to reach its conclusions, the Industrial Tribunal was entitled to reason, in accordance with authority, as it did particularly at sub-paragraph (e) of paragraph 9 in these terms:
"(e) further, even if the applicant was himself unaware of the special rules which apply to applications under s 104 of the 1996 Act, relating to allegations of dismissal for asserting a statutory right, those rules would, or should have been known to the applicant's professional advisers, who were consulted by him within the 3 month primary time period, in which event it could not be said that it was not reasonably practicable for a claim on that basis, if appropriate, to have been presented within the primary time period provided by s.111 of the 1996 Act."
In our judgment that was a proper and rational basis for the Industrial Tribunal to reach the conclusion that it did, that it was reasonably practicable in all the circumstances of this particular case, and taking into account the obligation that there is upon professional advisers, particularly of course, solicitors, for the Applicant to have presented this complaint within three months and we find that there is no arguable ground for criticising the way in which the Industrial Tribunal, the Chairman, reached his conclusions in this particular case.In addition, in our judgment, although it is a separate matter, it is of the highest degree unlikely, in our judgment, that really there was any claim being asserted in respect of any statutory right within Section 104 of the 1996 Act.The reality was, that, no doubt, for very good reasons this Applicant was disputing by way of negotiation with the Respondent employer with regard to the terms of his contract. There was not, in our judgment, any question of the Applicant asserting a statutory right. He did not like the terms of the contract which was being foisted upon him and that is a quite different matter. However, in our judgment, that is not really the issue on this application. The issue is whether the Chairman was correct in the decision that he reached and for the reasons we have given we are satisfied that he was and there is no error of law or any perverse finding of fact in the way in which he reached his decision.Accordingly, this application must be dismissed.