Gibson v MPE Liverpool Ltd [1998] UKEAT 616_98_0107

EAT
Gibson v MPE Liverpool Ltd
[1998] UKEAT 616_98_0107 · 1998-07-01
MR JUSTICE KIRKWOOD : This is an appeal by an employee from an Industrial Tribunal sitting at Liverpool on 25th February 1998. The tribunal dismissed his claim of unfair dismissal. It was a decision of a Chairman sitting alone. The Chairman gave his extended reasons for that decision which were sent to the parties on 26th March 1998.The appellant, Mr Gibson, was employed by MPE Liverpool Ltd, the respondents, as a good inwards inspector from July 1989.On 19th September 1997, according to the complaint Form IT1, on 12th September 1997, accordingly the response Form IT3, and on 12th September 1997, according to the Industrial Tribunal's reasons, Mr Gibson was dismissed by reason of redundancy. That, anyway, was the ostensible reason for the termination of his employment.No claim was made to the Industrial Tribunal within three months. There is no allegation that the procedure for selection for and dismissal by reason of redundancy was itself unfair.By Mr Gibson's Form IT1 he said that he subsequently discovered, though when is not clear, that his fellow employee who had also left by reason of redundancy at the same time as him, had been re-engaged into his old position.By its Form IT3, the respondents said that that was due to a change in business circumstances making it possible for them to recruit.The appellant's complaint to the Industrial Tribunal was received by it on 15th January 1998, which was one month outside the time limited by s. 111 of the Employment Rights Act 1996 . That section provides:
"(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer."
S. 111 provides at subsection (2) that:
"... 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."
The appellant's case is, essentially, that he did not know that he had been, as he would say, unfairly dismissed, until he discovered the re-engagement of his former colleague.The appellant did not attend the hearing before the Industrial Tribunal. He has not, in fact, attended before us today.In the extended reasons, the Chairman considered the question of extending time, even though the appellant was not present, and the Chairman said this:
"9. ... I should have to be satisfied by the applicant of three matters in order for him to succeed.
10. The first would be that it was reasonable for him not to be aware of the factual basis upon which he could bring the application within the three month period. Clearly, I should need to hear evidence from him in order to satisfy myself that it was reasonable. Secondly, I should have to be satisfied that the knowledge he gained is crucial, fundamental or important to his change of belief and furthermore that he reasonably and genuinely holds a belief that he has a ground for making an application. Again, I cannot assess whether the belief is either genuinely or reasonably held without hearing from the applicant himself.11. Finally, I should have to be satisfied that the acquisition of the knowledge is crucial to his decision to bring the claim. Once again, I should need to hear from the applicant himself to satisfy myself on that point.. ..14. The burden rests with an applicant to establish that it was not reasonably practicable for the application to have been presented timeously. In the absence of the applicant I was unable to conclude that he had satisfied that burden and accordingly his application was dismissed."In his Notice of Appeal, the appellant, Mr Gibson said:
"The chairman has concluded that I have not presented my application timeously without considering whether my original correspondence confirmed if this belief was reasonable and genuine."
In order to succeed, on this preliminary hearing, in satisfying us that his case should go on to a full hearing of an appeal, Mr Gibson would have to persuade us that he has an arguable point of law, namely, that the Chairman reached a decision that was unsustainable because he got the law wrong.The absence of Mr Gibson from this hearing, although he clearly has notice of it, works to his disadvantage because he is not able to demonstrate to us, or indeed, indicate to us, the way in which he says or would wish to say that there was an error of law.We have all the papers before us, we understand, that are on the Employment Appeal Tribunal's file. No further paper has been lodged by the appellant. On all the material before us it is clear that there is indeed no point of law for argument upon a full appeal. The problem is that Mr Gibson, who does not attend these hearings himself or by anybody else, feels unhappy that his application was dismissed. But in the absence of any arguable point of law, there is nothing that we can do about that. This appeal will be dismissed at this preliminary stage.