Cwmorthin Slate Quarry 1994 Co Ltd v Davies [1998] UKEAT 1055_98_1311

EAT

Cwmorthin Slate Quarry 1994 Co Ltd v Davies

[1998] UKEAT 1055_98_1311 · 1998-11-13

JUDGE D PUGSLEY :

This case is listed before us for a preliminary hearing as to whether arguable grounds exist for the appeal to go to a full Tribunal. Both individually and collectively, we were all of the view that the decision drafted by Mr B.J. Doyle, at the Liverpool Industrial Tribunal, was one that would stand as a template of the way a decision should be drafted. It is a very considerable tribute to the skills of Miss Rachel Wedderspoon that she has given us pause for thought in the light of the submissions she has made to us.

The facts are in simple form. It wads agreed before the Tribunal that the Applicant was dismissed and the effective date of termination of employment was 22 September 1997. It was common ground that if the Applicant wished to raise a complaint of unfair dismissal, an Originating Application should have been presented no later than 21 December 1997.

The Tribunal accepted the Applicant to be a credible witness and, on the balance of probabilities, it made a number of findings of fact. These are set out in the decision at paragraph 6 et seq.

"6. Following his dismissal with effect on 22 September 1997, the Applicant obtained an Originating Application from his local Job Centre some time towards the end of October 1997. He completed the form and signed it, and then took it back to the Job Centre. He assumed that, as he had obtained the form from the Job Centre, he should return it to the Job Centre.

7. The Applicant's evidence, which was not accepted by the Respondent, was that an official at the Job Centre undertook to post the Originating Application to the Tribunal office. The Tribunal has before it a signed letter dated 20 March 1998 upon Department of Social Security notepaper from a Mr Ian Lewis who, the Applicant says, is the official to whom he handed the Originating Application. That letter states that Mr Lewis confirms that 'an item of post addressed to the industrial tribunal was sent on behalf of Mr Carl Davies via the Blaenau Festioniog Job Centre sometime before the end of December 1997'.

8. The Tribunal has approached that letter as an item of evidence with care. It is not an affidavit or sworn statement ..... Mr Lewis could have been called to give direct evidence as to the contents of the letter, but he was not. The Respondent has not been able to test that evidence directly. ..."

The Tribunal dealt with it in this way. They accepted the Applicant's own account of what happened and the letter served to support that account. The Applicant says that it was sent sometime before the end of October 1997; Mr Lewis's letter said that it happened before the end of December 1997. The Tribunal accepted the evidence that this occurred before the Applicant went to Ireland in November 1997 and, on the balance of probabilities, the Tribunal found that an Originating Application was sent to the Tribunal within the three month time limit, namely before 22 December 1997 and most likely before the end of October 1997. The Applicant assumed that the matter would take time to deal with and was not surprised that he received no immediate acknowledgement from the Tribunal.

It is clear that the Originating Application was not received by the Tribunal. The Applicant had returned from Ireland in December 1997 and the Christmas and New Year period intervened. By now, however, the Applicant thought that he should have heard something from the Tribunal, so he went to inquire at the Job Centre in early January 1998 (some time before 14 January 1998). The Applicant's evidence, which the Tribunal accepted, is that Mr Lewis confirmed that he had sent the Originating Application to the Liverpool Tribunal office and he gave the Applicant the telephone number. The Applicant telephoned the Liverpool office and an official of the Tribunal informed him that his Originating Application had not been received. The official told him to complete a new form, which he did, and he posted this himself by first class post.

The second Originating Application is dated 17 January 1998 and was received by the Liverpool office on 19 January 1998. The matter was then transferred to the Shrewsbury Tribunal.

Miss Wedderspoon, who appeared below, referred the Tribunal to section 111 of the Employment Rights Act and to the authority in Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

(Court of Appeal) and Capital Foods Retail Ltd v Corrigan

[1993] IRLR 430

(Employment Appeal Tribunal). She submitted that the question for the Tribunal is whether it was reasonably feasible for the claim to have been presented in time. Where there is an unexplained failure in the process for presenting the Originating Application, the Applicant must take steps to confirm that the Application was received. She submits that the Applicant delayed in making such inquiries and that there is no evidence as to whether Mr Lewis actually posted the Application.

We have had the opportunity of looking at the reasoning of the Tribunal. It serves as a template for a model decision. The Tribunal in our view was satisfied that, on the balance of probabilities, an Originating Application was sent within the three month time limit, but for reasons which are unexplained, was not received by the Tribunal. The only probable explanation for it not being received it opined, was that it was lost in the post or in the Tribunal system. The Tribunal therefore said this:

"Nevertheless, the circumstances might entitle the Tribunal to conclude that it was not reasonably practicable for the complaint to be presented on time, subject to the principle of Capital Foods.

Capital Foods addresses the test of reasonable practicability in the context of an Application lost in the post where the Applicant is represented by legal advisers."

The Chairman summed up the position in this way:

"In the present case, the Applicant was a litigant in person at the relevant time. He was not being advised by the Job Centre, which had undertaken to do no more than provide him with the relevant form and to post it to the Tribunal. As a litigant in person, it was not unreasonable for him to assume that his Application had been sent and received, and that matters were proceeding. Although he did not make inquiries as to progress for over two months after he believed his complaint had been put in train, this is explicable by his absence in Ireland and then the intervention of the Christmas and New Year period. He then made inquiries and, once the true position was realised, acted diligently to present a fresh complaint. Capital Foods is distinguishable and the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented no later than 21 December 1997."

The Tribunal then went on to say that it was satisfied the Applicant did not act unreasonably in failing to inquire as to the progress of his complaint some three or so weeks after the expiry of the time limit. Once he discovered the truth, he requested a fresh form and completed it in due haste. The Tribunal therefore concluded that the complaint was presented within a reasonable period after the expiry of the statutory time limit.

This is a section which has been encrusted by numerous case law and the wording "reasonably practicable" substituted to endless analysis. We consider that the learned Chairman was perfectly entitled to reach the decision he did. One bears in mind he made a finding of fact; that the Applicant assumed that as he had obtained the form from the Job Centre, he should return it to the Job Centre. This was not a case where there was any great delay before he made inquiries.

We consider that the decision the learned Chairman reached was a wholly proper one. For what it is worth, we think it would be a sad day if there was an attempt to define, in factual situations laid down in pillars of stone, particular issues as though that denied a Chairman his right to consider the statutory provisions in the light of the evidence before him.

This is a case where we believe the decision of the Chairman was wholly in accord with decided authority; that he could properly distinguish Capital Foods for the reason he gave and that his decision was one in which there is no arguable point of law. But having said that, we would say that Miss Wedderspoon has given us pause for thought, is a tribute to her skills of advocacy, rather than, I regret to say, the substance of the argument she put before us. The appeal is dismissed.