Adeboye v Eagle (t/a McDonald's Restaurant) [1998] UKEAT 74_98_0103

EAT
Adeboye v Eagle (t/a McDonald's Restaurant)
[1998] UKEAT 74_98_0103 · 1998-03-01
MR JUSTICE BELL : The is an ex parte preliminary hearing in respect of an appeal by Mr Adeboye against a decision of an Industrial Tribunal held at London (South) on 8th August 1997.Mr Adeboye had been employed as a floor manager by Mr Eagle at his McDonald's franchise in Denmark Hill. His Originating Application dated 26th October 1996 claimed that his employment commenced on 4th May 1996 and that he was constructively dismissed on 30th July 1996. In fact, Mr Adeboye has stressed today that his view of matters is that his date of dismissal was 31st July 1996 because he sent off a letter saying that he was leaving on 30th July which would not have arrived in Mr Eagle's hands until 31st July at the earliest. Whether in fact that is so, we do not have to rule on. Since the claim was one of constructive dismissal, it seems to us that it is more probable that the effective date of termination was in fact 30th July when he decided that he could no longer work for his employed in the light of his employer's conduct. However that may be, Mr Adeboye also claimed that he was racially discriminated against.The respondent's Notice of Appearance denied many matters in the Originating Application. It said that Mr Adeboye had been employed by the respondent since 1st October 1990, part-time, that he was not unfairly treated or discriminated against, and that he was not dismissed since he resigned from the respondent's employment on 30th July 1996, it appears by virtue of a letter of that date, as Mr Adeboye agrees, in order to go back to College full-time. Alternatively, it contended that as the appellant's Originating Application was received at the Central Office of Industrial Tribunals, as it apparently was on 31st October 1996, it was out of time, whether the effective date of termination of Mr Adeboye's employment was 30th July 1996 or 31st.The appellant's answer to that revolved around an argument about the date of the letter and when it was received, before going on to say that he had in fact posted his Originating Application on 29th October 1996 in registered cover, having been assured by a Post Office official that it would arrive the next day. In fact it must have been held up for a day, because it did not arrive until 31st October 1996.Mr Adeboye's application was listed for a hearing for directions on 8th August 1997, when it was dismissed on withdrawal, allegedly by the applicant, Mr Adeboye. The Industrial Tribunal consisted of a Chairman, Mr John Warren sitting alone, and the reasons for his decision were as follows:"On the face of the documentation the application alleging unfair dismissal and "discrimination" was lodged more than three months after the effective date of termination.2. The Applicant's representative indicated there could be no argument to put forward that it was not reasonably practicable to have lodged the application in time. The Chairman reminded the Applicant of the test for extending the three month period - unfair dismissal cases - not practicable - discrimination claims - just and equitable to do so.3. The Chairman explained that if the matter was to proceed it would be listed for a preliminary hearing to consider whether the Tribunal had jurisdiction to hear the claims.4. The Applicant had advice from his union representative during a short adjournment.5. The Applicant then withdrew his application which I accordingly dismissed."It is against that decision that Mr Adeboye appeals.Mr Adeboye sought a review which the Chairman rejected, although he was good enough explain why at some length as follows:
"2. To begin with the Applicant is unable to seek a review as both the Applicant personally and his union representative withdrew the application at the Tribunal hearing on the 8 August 1997 and the application was dismissed following that withdrawal.
3. However, it may assist the Applicant in understanding the situation if the position is made clear. The Applicant in his IT1 states that his employment ceased on the 30 July 1996. The three months time limit therefore for application to be received at the Tribunal is 29 October 1996 (a Tuesday). The application was in fact received on 31st October 1997. An inspection of the envelope in which the application was sent with the use of a magnifying glass reveals the Post Office date stamp to be the 29 October 1996. The application was actually signed on the 26 October 1996. The Applicant in letters to the Tribunal dated the 21 August 1997 attempts to explain the reason why the application was late. Even if the application had been received on the 30 July [ the Chairman must have meant 30th October ] the day after it was posted it would still have been one day out of time. [ We interpose to say, that that must be correct because even if the effective date of termination was 31st July, to be in time the application would have to be received not later than 30th October and it was received on 31st October. ] The Applicant in his letters complains about his treatment from his Trade Union and the advice given. It seems to the Chairman that that is where the Applicant's complaint lies, if there is any complaint, and that his remedy does not lie at the Tribunal.4. ... the Applicant withdrew his application at the Tribunal and at that time had the advice of his Trade Union representative."The appellant's Notice of Appeal seeks make a large number of points, as does his skeleton argument, to which Mr Adeboye has added today. The main points seem to us to be as follow. Firstly, Mr Adeboye says that his Originating Application was only one day late and that was the fault of the Post Office. Well of course he chose to leave his Originating Application to the last minute, but in any event he did not take up the Chairman's suggestion of a preliminary hearing to consider whether the tribunal had jurisdiction to hear his claims and should hear them, notwithstanding that the Originating Application was late to a very limited extent.Secondly, Mr Adeboye says that the respondent was allowed to resist his claims, although their Notice of Appearance was late. That, in our view, can be neither here nor there, if Mr Adeboye did not proceed with his claim even to the extent of a preliminary hearing of the issue of jurisdiction. The Industrial Tribunal never got to the Notice of Appearance in those circumstances.Thirdly, Mr Adeboye contends that the Chairman suggested a short adjournment. In our view, that is neither here nor there. Adjournments are often useful for a variety of reasons and it appears from the Chairman's reasons for dismissing the application on withdrawal on 8th August 1997, that the short adjournment was taken after the Chairman himself had attempted to make sure that Mr Adeboye and his representative were aware of the differing tests for extending time according to whether it was an unfair dismissal claim or a racial discrimination claim.Fourthly, Mr Adeboye accuses the respondent of misleadingly suggesting that his employment terminated on 30th July 1996, rather than 31st July 1996. But we have already said that in a case of constructive dismissal, it is arguable to say the very least that the contract terminates on the day when the employee decides that he can no longer continue to work for the employer in light of the employer' behaviour. It is arguable, at the very least, that that must be on the day when he writes the letter saying that he can work for the employer no longer. In any event, we can see no intent to mislead on the part of the respondent. Whether it was one day or two days late, the Originating Application was firstly, late, and secondly, not much late.Fifthly, Mr Adeboye accuses the respondent's representative of misleading conduct and conspiracy, generally, with his own trade union representative. Having looked at all the papers we can see no substance in that.Sixthly, Mr Adeboye says that he had a difference with his trade union representative who wanted him to withdraw his application, whereas Mr Adeboye did not want to do so. But we really have no good reason to doubt what the Chairman said in the reasons for his original decision; and in response to the application for review. On the basis of those reasons, there is no reason to believe that the Chairman was aware of any dispute between Mr Adeboye and his representative to put him on notice that Mr Adeboye might not willingly be withdrawing the application when the application to withdraw was made in his presence before the Chairman. He was there when his representative withdrew his application.Seventhly, and obviously of great concern to this tribunal, is Mr Adeboye's allegation, particularly this morning, that he was put under pressure by the Chairman to withdraw his application. If we thought that there was any possible substance in that, we would not hesitate to let this matter proceed to a full appeal hearing so that that matter could be further investigated. But we find the suggestion totally inconsistent with the extended reasons which clearly intimate that the Chairman was anxious that the applicant should be aware of the different basis for extending time in unfair dismissal cases on the one hand, and in discrimination claims on the other where the tribunal had a very wide discretion to extend time if it was just and equitable to do so. Mr Adeboye says that the Chairman said that if he went ahead it would cost him a lot of money, but factually that certainly was not correct and we cannot see why this helpful Chairman should say it. We regret to say that we find Mr Adeboye's suggestion of pressure from the Chairman not only unsustainable, but quite contrary to what appears in the extended reasons and in the generally helpful terms of the review, where the Chairman was anxious to explain how limited his powers were in circumstances where Mr Adeboye's representative had withdrawn his application.So far as the tribunal was concerned and the Chairman of the tribunal was concerned, and it is the tribunal's decision which is challenged on this appeal, not the quality of Mr Adeboye's representation by his union representative, the withdrawal of Mr Adeboye's application was done by his representative in front of the Chairman of the tribunal with Mr Adeboye's apparent consent. We do not have any general discretion to let Mr Adeboye to have a second bite in the interests of justice, if indeed the interests of justice would be served by letting him have a second bite.We must have some basis of challenge to the tribunal's decision based on a point of law: same case that the tribunal erred in law in some way which we can see and understand today and deem to be arguable. We have gone to some length to explain our reasoning to Mr Adeboye. We cannot see any point of law here. It follows that there is nothing which this tribunal can do, whether or not Mr Adeboye was well-served by his union on this occasion. For all those reasons, the appeal must be dismissed at this stage.