Sumner v Lees Lloyd Whitley [1998] UKEAT 637_97_2701

EAT

Sumner v Lees Lloyd Whitley

[1998] UKEAT 637_97_2701 · 1998-01-27

JUDGE C SMITH QC :

This is an appeal by Ms Rebecca Sumner against the decision of an Industrial Tribunal, the Chairman sitting alone, at a preliminary hearing held at Liverpool on 7 March 1997 of which Extended Reasons were given on 7 April 1997, when the Chairman held that the Appellant's Originating Application complaining of unfair dismissal and sex discrimination against the Respondent, a firm of Solicitors, was out of time and accordingly dismissed it for lack of jurisdiction.

The issue before the Industrial Tribunal was whether the Applicant's Originating Application had been received by the office of the Industrial Tribunal at Liverpool on 1 January 1997, or not until 2 January 1997. It was common ground that if it was not received until 2 January 1997 it was out of time, since the Applicant had been dismissed, allegedly unfairly and by reason of sex discrimination, on 2 October 1996, and thus the three month time limit expired on 1 January 1997.

The Chairman held that, in the absence of evidence, as he put it, from the person allegedly transmitting the Originating Application, that she did so transmit it on 1 January 1997, the Originating Application was not received at the office until 2 January 1997, ie one day out of time. He also found as a fact that the fax machine in the Tribunal office remained switched on throughout Monday, 1 January 1997, despite the fact that it was a Bank Holiday.

Accordingly, since no argument was addressed to him that it was not reasonably practicable to have presented the Originating Application within three months, so far as she claimed unfair dismissal, or that it was just and equitable to extend time under the Sex Discrimination Act, he held that the Originating Application should be dismissed.

It is important to set out the background to the hearing on 7 March 1997. Prior to this hearing on 7 March 1997 there was some important correspondence between the Appellant's representative, Miss Ann Cutting, a Solicitor Consultant with Messrs Ole Hansen & Co in London and the Secretary of the Industrial Tribunal on behalf of the Chairman.

By her letter of 3 February 1997 to Ole Hansen, the Secretary notified the Appellant's representatives that the Chairman had instructed that to resolve the contradiction between the fax message of the Originating Application which showed that it had been sent on 1 January 1997 and the fact that the IT's fax activity reports do not show a fax received on 1 January 1997, the Chairman must have evidence of the transmission of the Originating Application. The letter continues as follows:

"The best way of obtaining it is to hear the live evidence of the witness involved. The Chairman therefore proposes that there be a Preliminary Hearing in this case on the question of whether the application was lodged in time. If it is decided that it was not, the Tribunal shall consider the question of whether the time for lodging it shall be extended for which purpose the Appellant's presence might be needed."

This letter was acknowledged by Ole Hansen by their letter of 27 February 1997. Copies of the IT's fax activities reports were sent to Ole Hansen showing the absence of any report for 1 January 1997, since, as it was put by the Industrial Tribunal, "the fax machine does not print a report when there is no activity". The reports are at pages 22 to 25 in the bundle.

There followed a lengthy and crucial letter from Messrs Ole Hansen to the Industrial Tribunal dated 4 March 1997, enclosing copies of the Tribunal journal, the fax journal of Miss Cutting's home fax and the British Telecom itemised telephone account for the telephone number from which the Originating Application was faxed. In particular, at page 32 of the bundle Messrs Ole Hansen drew attention to the item on Miss Cutting's home telephone account of 1 January at 16.06 to the Industrial Tribunal's fax number for a duration of 2 minutes, 20 seconds and the journal entry from her fax number 19 to the Industrial Tribunal fax timed at 05.08 pm on 1 January 1997 for a time of 2 minutes, 21 seconds as showing apparently definitively that pages 1, 3 and 4 of the Appellant's Originating Application had been faxed at 16.06 on 1 January 1997 and received by the Industrial Tribunal.

It was pointed out in the letter that a clerk from the Industrial Tribunal had telephoned Messrs Ole Hansen at the firm's telephone number at about 10.30 am on 2 January 1997 to say that page 2 was missing. A message was passed from the firm to Miss Cutting (at home on sick leave) with the result that she faxed through page 2 to the Industrial Tribunal's fax, as again clearly confirmed both by the telephone account and her fax journal.

It was pointed out at page 2 of the letter, page 27 of the bundle, that there was no record in the Industrial Tribunal's fax journal of that fax of page 2 being recorded as coming in on 2 January 1997. It is further noted that pages 1, 3 and 4 of the Originating Application must have arrived before 10.30 am on 2 January 1997, whereas the first fax shown as arriving on the Industrial Tribunal fax journal on 2 January 1997 is at 10.52 i.e. the first effective fax.

Finally, it is noted that there was no activity on the Industrial Tribunal fax journal between 16.42 on 31 December 1996 and 10.52 on 2 January 1997, which suggested there might be something wrong with the Industrial Tribunal's fax or its ability to record faxes sent to it during that period.

So it was submitted that there was overwhelming evidence that sufficient parts of the Originating Application to constitute, as a matter of law, an Originating Application were both faxed to, and received by, the Industrial Tribunal at 16.06 on 1 January 1997.

It was against that background that we come to consider the hearing which took place before the Chairman on 7 March. Regrettably, Miss Cutting did not attend that hearing. She wrote an apology for her non-attendance because she was engaged in another case (we shall say a word about that later). However, despite her absence, it is quite clear from the Extended Reasons, in our judgment, that her letter of 4 March, together with the enclosures to which we have referred to above, were before the Chairman on 7 March 1997.

In our judgment it is equally clear, despite the submission to us by Counsel for the Respondents, that the Chairman did not admit either the letter or the enclosures before him as evidence. Although he made no ruling on the question of their admissibility before him it is plain from paragraph 9 of the Extended Reasons, in our judgment, that he dealt with the issue before him on the footing that there was an absence of evidence from the person allegedly transmitting the Originating Application and that he concluded, in the absence of such evidence, that it had not been received until 2 January 1997.

In our judgment it is plain that there was no analysis or weighing up by the Chairman of the letter of 4 March or its enclosures and this is only explicable on the footing that he did not admit it as evidence before him.

In our judgment in not admitting that letter and its enclosures the learned Chairman, with respect, fell into error. In our judgment it is clear from Rule 9 of Schedule 1 of the 1993 Rules that the Industrial Tribunal is not bound by the strict rules of evidence, as though the proceedings were proceedings before a court of law. In our judgment it is clear from the decision of Rosedale Mouldings Ltd v Sibley

[1980] ICR 816

, particularly at page 821 F - H and page 822 A - B, that if evidence is placed before it which is probative, even though it may be hearsay and not admissible at common law, the Industrial Tribunal has no discretion to refuse to admit such evidence.

In our judgment the letter of 4 March 1997, and more particularly the British Telecom telephone account and Miss Cutting's fax journal, were plainly both admissible and probative to the crucial issue which the Industrial Tribunal had to decide by way of a preliminary issue. The British Telecom telephone account and the fax journal were admissible, in our judgment, as documentary evidence and would, as far as we can see, although we have not researched the matter today in detail, have been admissible in a court of law, subject to the relevant provisions of the Civil Evidence Act being complied with and the letter of 4 March, although parts of it were hearsay, was plainly admissible and probative in part, since it was in large part by way of an explanation of the accompanying documents.

In our judgment the Chairman must have allowed himself to conclude that only oral evidence of the transmission would be admitted, as a result of the Secretary's letter of 3 February 1997, to which we have referred earlier. However, in our judgment, even if the Industrial Tribunal could have required the Appellant's representative to be present and give oral evidence at the hearing which we, with respect, doubt, that letter contained no such stipulation.

Accordingly, for these reasons we must conclude, unfortunately, that the learned Chairman on this particular occasion was in error in failing to consider the documentary evidence contained in the letter of 4 March and its enclosures.

We have been invited by both sides, on the assumption that we decided that there had been an error of law in the decision by the Industrial Tribunal, to reach our own conclusion and substitute our own decision as to whether the Originating Application was in time.

We unanimously conclude that it was in time for the reasons set out in the letter of 4 March and the overwhelming probative force of the enclosures sent with that letter, even taking into account the absence of entries on the Industrial Tribunal's fax journal. We conclude that there must have been something wrong with the Industrial Tribunal's fax journal at the time.

We do not think it necessary to rehearse in detail our reasons, since we have already outlined them above in dealing with the issue of admissibility and in analysing the effect of the letter of 4 March and its enclosures. Suffice it to say, we all find the British Telecom telephone account and Miss Cutting's fax journal conclusive on the point.

We should say, finally, that we consider it unfortunate that Miss Cutting did not attend this important hearing. It has worked something of an injustice to the Appellant, since there has been considerable delay in the hearing of her application. Having left matters to the fifty-ninth minute of the eleventh hour, it was, with respect, even more important that Miss Cutting should have attended personally to this matter. It was somewhat discourteous to the Chairman of the Industrial Tribunal and not a good service to the client to fail to do so.

However, for the reasons we have given, this appeal is allowed and we substitute a finding that the Originating Application was in time and remit the matter to the Industrial Tribunal for a substantive hearing to take place as soon as possible.