Walsh v Lynx Express Delivery Network [1998] UKEAT 752_98_0110

EAT

Walsh v Lynx Express Delivery Network

[1998] UKEAT 752_98_0110 · 1998-10-01

MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal Chairman sitting alone at Manchester on 20 April 1998. The Chairman gave leave to amend the name of the Respondents to Lynx Express Limited. He found that the Appellant's complaint of unfair dismissal was out of time. It had not been presented before the end of the period of three months beginning with the effective termination of his employment and it had been reasonably practicable for him to present it within that period.

The Appellant had been employed by a company which he described in his IT1 as Lynx Express Delivery Network which was a subsidiary of the National Freight Company. He had been so employed from August 1965 until 5 February 1994. He had been off work due to ill health for some time before the date of termination of his employment. He presented an Originating Application to the Industrial Tribunal on 15 December 1997. There was therefore a preliminary issue as to whether time could be extended so as to allow his claim to proceed.

At the hearing the Appellant gave evidence on oath. It appears from the decision that he advanced two main reasons why he had delayed in commencing proceedings. First he said that he had been wrongly advised by solicitors who were representing him in a claim for damages for personal injury arising out of his employment. It appears that he had issued a writ alleging that his employers had caused him to suffer from stress which had led to long term ill health and he had become unfit for work. He claimed that he had been advised that it was not possible to run both the personal injury claim and his Industrial Tribunal claim at the same time. He was waiting until his personal injury claim was resolved. In fact it was resolved by settlement during September 1996, some 15 months before he lodged his IT1. He did not produce written evidence as to the advice that he had been given by his personal injury solicitors. Nonetheless it does appear that the Chairman believed his evidence on that point, although the Appellant also told the Chairman that he would have taken proceedings for unfair dismissal despite the advice that he had been given by his solicitors, had he felt well enough to pursue those proceedings. His second reason for not pursuing his unfair dismissal proceedings expeditiously was that he had suffered from ill health. Moreover, his wife had been unwell. Further to that, even after his personal injury claim had been settled, his wife had been unwilling to allow him to commence Industrial Tribunal proceedings as she feared that he would find them stressful and that this would cause a recurrence of his illness. All these matters were covered in detail in evidence.

The Chairman did not accept that it had not been reasonably practicable for the Appellant to commence proceedings within three months. The Appellant was aware of the time limit for unfair dismissal proceedings. He was a member of a trade union and had access to advice. She observed that even after the personal injury proceedings were settled, he had delayed for a further 15 months. In the end she felt unable to extend time to allow his proceedings to proceed.

In this appeal, it is argued that the Chairman's decision was perverse. We have listened carefully to the submissions of Mr Edwards, Counsel who has appeared under the aegis of ELAAS, but we are unable to accept them. It appears to us that this Chairman considered the evidence very carefully and there was an abundance of evidence upon which she was entitled to reach her conclusions.

The Appellant is concerned about two other aspects of the case. The first is that at the hearing the Chairman gave leave to amend the name of the Respondents. The name was amended to Lynx Express Limited. It has been explained to us that some time after the Appellant's employment had ceased, there was a management buy-out by a group from within 'Lynx Express Delivery Network', the Appellant's employer, and a new company 'Lynx Express Limited' was set up. The Appellant makes the point to that he was never employed by the new company. He was therefore aggrieved that the Chairman should have amended the name of the Respondents to the name of the new company. He says that he had never had anything to do with the new company and he feels that the solicitors who represented that company in some way mislead him.

This matter was dealt with in correspondence by the Regional Secretary to the Tribunal in Manchester, to whom the Appellant had addressed his complaint. The Chairman who heard the case directed the secretary to reply as follows:

"The applicant named "Lynx Express Delivery Network plc" as the Respondents in his letter which was treated as his Originating Application, although he referred to "Lynx Express Delivery Network" (which is a trading name) in his form IT1 later completed by him. Appearance was entered by Lynx Express Ltd. It was therefore the Chairman's duty to find out what legal entity employed the applicant. The applicant agreed at the hearing that it was Lynx Express Limited which employed him. The amendment was made with his consent. It is the employing company which has to be the Respondent and not the owners of the shares."

Today, the Appellant remains convinced that he did not consent to the amendment of the Respondents name. He complains that the matter was not mentioned at the hearing and he knew nothing of it until he received the Chairman's decision. We cannot resolve this conflict, but wherever the truth of that matter lies, it can make no difference to the outcome of these proceedings. The Appellant has failed to persuade the Chairman that his claim should be allowed to proceed notwithstanding the delay in commencement. He has failed to persuade this Employment Appeal Tribunal that the Chairman's decision in that regard was perverse. Accordingly, it cannot matter what the correct name of the Respondents was, because there will be no hearing on the merits and no order against any Respondent. Accordingly, with that explanation, we must leave that point.

There remains one other matter which has caused concern to the Appellant. It appears that at some stage in the proceedings the Appellant received a letter, warning him that he may be required to pay costs. When he received the Chairman's decision and realised that he had lost the case, he was under the impression that he was to be required to pay costs. That was a misunderstanding on his part. We understand and understand the concern that he felt. He should be reassured, that there was no order for costs made against him by the Tribunal below and that there is no order for costs arising out of these proceedings. Having said that this appeal must be dismissed at this preliminary stage.