Ezenwa v Hotel Intercontinental (London) [1998] UKEAT 1368_97_2001

EAT
Ezenwa v Hotel Intercontinental (London)
[1998] UKEAT 1368_97_2001 · 1998-01-20

JUDGE C SMITH QC :

This is an application for leave to proceed to a full hearing of an appeal by the Applicant before the Industrial Tribunal, Mr Ezenwa, against the decision of an Industrial Tribunal, the Chairman sitting alone, held at London (North) on 22 August 1997, when the Chairman held that the Applicant's complaints for unfair dismissal and for discrimination on the grounds of race were out of time.We have had the benefit of argument this morning from the principal of Newcourt & Co, who were the legal practice representing the Applicant at the time, and we have heard submissions made to us by Ms Oladeinde, the principal of that company who had the conduct of this matter on behalf of the Applicant before the Industrial Tribunal and we have considered her oral arguments today together with the argument set out in the Skeleton Argument and the Notice of Appeal.We have reminded ourselves that we only have to be satisfied that there is an arguable ground of appeal against the decision of the Industrial Tribunal in order for us to allow the matter to proceed to a full hearing.We have carefully considered the decision that was given by the Chairman on 22 August 1997, which is, in our judgment, a careful decision. Summarising it, and it is no more than a summary, because the full facts can be seen in the Industrial Tribunal decision to which reference should be made, if necessary, but summarising it, the Applicant had been summarily dismissed on 12 February 1997. By 26 February 1997 he had sought the advice of Newcourt & Co who describe themselves as carrying on a legal practice.It appears from the findings of the Industrial Tribunal that they had obtained a form of Originating Application on 30 April 1997, which was signed on that date by the Applicant. Obviously, as the Industrial Tribunal held, the time limit for bringing a complaint for unfair dismissal would have expired on 11 May 1997. It appears, from the findings of the Industrial Tribunal that the Applicant had appealed against his dismissal and his internal appeal had been heard on 24 April 1997. By letter dated 7 May 1997 he was informed by the Respondent employers, Hotel Intercontinental (London), that his appeal had been dismissed.The position was that, on the findings of the Industrial Tribunal, the Originating Application was not, in fact, presented until 31 May 1997, quite considerably out of time. Newcourt & Co maintained before the Industrial Tribunal, by way of written submission, that they had posted the Originating Application by First Class post to the office of London (North) on 8 May 1997, and that they had spoken to the office on 30 May 1997 and had been told that it had not been received, so that a further fax copy was sent the following day.With regard to the complaint of unfair dismissal the Chairman held that the three-month time limit had expired on 11 May 1997, so that the Originating Application was almost three weeks out of time. The Chairman then considered whether it was not reasonably practicable to present it in time.The Chairman concluded, having considered the case of Dedman v British Building and Engineering Appliances Ltd [1974] ITR 100, and the important case of Capital Foods Retail Ltd v Corrigan [1993] IRLR 430, that even if the Originating Application was posted on 8 May 1997, which he was prepared to accept as a possibility, and accordingly he dealt with the application on that basis, the Chairman held that, even if it was posted on that date, ordinary and prudent practice necessitated some efficient system on the part of the Applicant's advisers of checking that it had been received before the expiry of the time limit on 11 May, and that the conduct of business was taking its normal course in that way.It has been argued before us today that, in some way, the Applicant's advisers were lulled into a false sense of security and had good reason for delaying the presentation of the Originating Application, because of the time which the employers took between 24 April 1997 and 7 May in deciding what the result was going to be of the Applicant's appeal against his dismissal. In our judgment that point is a bad point. It is not clear whether it was, in fact, put forward to the Industrial Tribunal, but if it was put forward to the Industrial Tribunal, in our judgment, it is a bad point since the onus is on the Applicant to press ahead and get his Originating Application presented in good time, irrespective of what is happening in relation to an internal appeal.Next, it is submitted to us that the result of the delay in the decision being taken by the employers to dismiss the appeal left the Applicant and her advisers with only two working days in which to present the complaint. In our judgment, for the reasons we have already given, the Applicant, through her advisers, were the authors of their own misfortune in that regard. In any event, in our judgment, it was open to the Industrial Tribunal and the Chairman to conclude, in the light of the decision of Capital Foods Retail Ltd v Corrigan that he was not satisfied, as he puts it, that all reasonable steps were taken to confirm that the application had been duly received. As the learned Chairman put it, at the end of paragraph 3, under the heading of " Unfair Dismissal ".
"In this case even if the application was posted on 8 May I am not satisfied that all reasonable steps were taken to confirm that the application had been duly received. If it was posted at all it was left rather late and no steps were taken on an urgent basis to ascertain that it had been received."
In our judgment the Chairman was amply entitled to reach that conclusion. Newcourt & Co are based in Kilburn. The office to which the complaint had been posted, the relevant office, was at Woburn Place. It was therefore incumbent upon the Applicant's advisers (and there is no fault here on the part of the Applicant, but the fault lies with the Applicant's advisers in our judgment) in the circumstances where they had allowed themselves to leave the matter to the fifty-ninth minute of the eleventh hour, to take the most urgent steps to make sure that their complaint had, indeed, been received by the Industrial Tribunal office by sending someone along to find out and, if necessary, delivering the Originating Application by hand.In all the circumstances therefore, on what was, at the end of the day, essentially a question of fact for the Chairman to decide, we do not think there is any arguable point of law for saying that the Chairman was wrong in concluding that it was reasonably practicable for the Applicant to have presented his complaint within the three month period required by Section 111 of the Employment Rights Act 1996 .We turn to consider the appeal against the decision of the Chairman that the application under Section 68 of the Race Relations Act 1976 was out of time. In fact, of course, there was no dispute that it was out of time, since the only possible act of discrimination upon which the Applicant could rely was his dismissal on 12 February 1997, so that, once again, the time ran out when the three months expired on 11 May. Thus, what the Chairman had to decide was whether, under Section 68(6) of the Race Relations Act 1976 , it was just and equitable to extend time. That is precisely the question which the Chairman asked himself in these terms:
"However, a tribunal may nevertheless consider any such complaint, claim or application which is out of time if in all the circumstances of the case it considers that it is just and equitable so to do."
The learned Chairman then went on to exercise his discretion to say that he was not satisfied that this is a case where it would be just and equitable to extend time. He put it this way:
"The Applicant did not act with any alacrity, being content to leave matters to the last moment and was not even minded to attend the appeal hearing where he could have further pursued his complaints and given the Respondent further opportunity to consider them."
In all the circumstances here, we consider that the Chairman applied the correct test, namely as to whether it was just and equitable to extend time and he reached a conclusion in the exercise of his discretion which was essentially one within his powers to reach, this being at the end of the day, a question of fact for him to decide.In all the circumstances, in our judgment, it was open to the Industrial Tribunal to reach the conclusion which they did and no arguable error of law has been shown in relation to the decision which the Chairman reached.Accordingly, for those reasons this application must be dismissed.