Desmarais v London Underground Ltd [1998] UKEAT 690_98_0109

EAT

Desmarais v London Underground Ltd

[1998] UKEAT 690_98_0109 · 1998-09-01

JUDGE HICKS QC :

In this case Mr Paul Desmarais was employed by the respondents, London Underground Ltd. His dates of employment were 7th February 1983 to 28th March 1997, so that he had employment of over 14 years. He wished to present to the Industrial Tribunal his complaint of unfair dismissal, he having been a fitter. The tribunal had first to consider the question whether it had jurisdiction to entertain that complaint, because it was not presented until 12th December 1997, a long way outside the limit of three months during which complaints for unfair dismissal are required by the statute to be presented. However, s. 111(2)(a) of the Employment Rights Act 1996 does allow the tribunal to extend that period of three months by such further period as it considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of the period of three months. So there is no general discretion to extend on other grounds; the relevant ground is simply whether it was reasonably practicable for the complaint to have been presented before the end of the period of three months.

The position in this case was that the tribunal, sitting in the form of a Chairman alone, dealt with that point as a preliminary issue and heard evidence from Mrs Desmarais, the applicant's wife, who gave evidence that it was she who had lodged the originating application on her husband's behalf. She gave evidence about his difficulty at work, the illness which he had suffered, and there was indeed evidence in the form of a letter from a consultant psychiatrist as to the nature of that illness. She gave evidence to the Chairman that she herself was unwell and under medication. The Chairman's decision proceeds:

"9. ... On the crucial question of whether she had instructed solicitors to commence Industrial Tribunal proceedings, she was unable to recall the precise nature of the instructions to solicitors, save to say that she did see solicitors shortly after her husbands dismissal but she could not remember a thing. ..."

That related to the undisputed fact that the solicitors appearing before the Chairman were the third solicitors who had been instructed on behalf of Mr Desmarais, and themselves had no dealings with the matter during the relevant period of three months. The solicitors to whom Mrs Desmarais is referring in that piece of evidence are the first of the three firms and, as we have been told, although it does not appear from the Chairman's decision, were a firm called J D Spicer & Co.

In addition to that evidence by Mrs Desmarais that she was unable to recall the nature of the instructions that she had given to those solicitors, except that she had seen them shortly after the dismissal, the Chairman had before him on this point a letter from Mr Desmarais' current solicitors, Messrs Egole & Co, of 2nd March 1998, the hearing before the Chairman being just over a month later, on 9th April 1998. The Chairman quotes from that letter - he had clearly seen the whole of it - but he only quotes this passage:

"Few days after our client's official dismissal solicitors were instructed to take the case to an Industrial Tribunal. Our client was promised that action would be taken according to instruction. Frequent visits were made by our client to the Solicitor [ who is named ] seeking to know the outcome of the instruction given. On each visit the client was told that something was being done about the instruction given."

When the Chairman comes to give his assessment and conclusions he finds as a fact that:

"14. ... shortly after dismissal, the Applicant had instructed solicitors to commence Industrial Tribunal proceedings. That is stated in his present solicitor's letter dated 2 March."

So it is quite clear that the evidence on which the Chairman based that finding of fact, that the first solicitors had been instructed to commence Industrial Tribunal proceedings shortly after dismissal, is the letter of 2nd March.

We ourselves have seen the letter of 2nd March and it is only right to say that the extract in the Chairman's decision is of course accurate, but that the next sentence after that quotation reads:

"However, when it became apparent that D J Spicer hasn't taken the matter to the Industrial Tribunal, our client then requested for his file of papers to be transferred to [ another firm of solicitors ]."

So that on this question of fact whether Mr Desmarais had instructed the first solicitors, Spicers, in good time to bring a complaint to the Industrial Tribunal, the Chairman had to weigh on the one hand Mrs Desmarais' evidence before him that she could not recall the nature of the instructions and a little later that she could not remember a thing. He had to balance that against the quite specific statement in the letter from Mr Desmarais' current solicitors that there were instructions to take the case to the Industrial Tribunal, and not only that statement but a number of matters which add detail and circumstance to it. There is the statement that the client was promised that action would be taken; there is the statement that frequent visits were made to see what was happening; there is the statement that on each visit the client was told that something was being done; and there is the final statement that when it became apparent that Spicers had not taken the matter to the Industrial Tribunal, and implicitly for that reason, Mr Desmarais moved to other solicitors.

Now it is perfectly true that all those statements in that letter from Messrs Egole & Co are not independent evidence in the sense of evidence from any independent witness or from any document arising at the date in question, namely the period immediately after the dismissal. They must themselves have been founded upon what Egole & Co had been told by Mr or Mrs Desmarais, and it would seem probably from Mrs Desmarais, because the period concerned is quite shortly before the hearing before the Chairman. But when one contrasts the specific nature of what is stated there - and not just the assertion of instructions having been given, but the quite significant amount of additional circumstantial evidence contained - we find no error in law whatsoever in the Chairman's conclusion that that evidence outweighed what was in any event the totally negative evidence of Mrs Desmarais that she could not remember one way or the other what instructions had been given.

Although this is a very sad case which clearly gave the Chairman a good deal of concern, as it does us, we have to deal with the matter on the sole basis of whether there was arguably an error of law in the way in which the Chairman dealt with it, and we find no such error and have therefore come to the conclusion that the appeal must be dismissed.