Hoare v Clapham Community Project [1998] UKEAT 834_98_0111

EAT
Hoare v Clapham Community Project
[1998] UKEAT 834_98_0111 · 1998-11-01
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing was to determine whether Ms Hoare has an arguable point of law to raise in an appeal which she wishes to make against a decision of an Industrial Tribunal which concluded that they had no jurisdiction to deal with her complaint relating to her dismissal. That decision was given following a hearing on 23rd April 1998. Ms Hoare had presented a complaint against her former employers, Clapham Community Project. The effective date of termination was 29th August 1997, therefore, her complaint of unfair dismissal should have been presented to the tribunal on or before 29th November 1997, it was received by the tribunal on 20th January 1998, that is just under two months out of time.In giving their decision, the tribunal said this:
"4. The Applicant produced to the Tribunal a letter from an advice centre dated 14 November 1997 which advised her that she might have a claim connected with a transfer of an undertaking, that the last date for receipt by the Tribunal of an application was 28 November 1997 and that she should protect her position by filing an application with the Tribunal pending clarification of her claim.
5. The Applicant contended that she had not been aware of the transfer of the undertaking until January 14 1998 [ as a result of reading an advertisement ] and had filed her complaint within 6 days of being aware of her claim ... ."We have read the letter of 14th November 1997 from the Centre '70 Advice Centre. That letter sets out very clearly what the legal position is. It indicated that it might be possible to argue that the dismissal was in connection with a transfer, but went on to say that "arguably as there was no ongoing funding there was no going concern" and therefore there may not have been a transfer falling within the Regulations. They then went on to deal with all aspects of her claim for unfair dismissal and said this:
"In conclusion I would not be optimistic about the prospects of successfully pursuing a claim for unfair dismissal. As you know if you do wish to do so the Industrial Tribunal must receive your application within 3 months less a day from the date you were dismissed i.e. by 28th November 1997 at the latest."
It seems to us in those circumstances that the Industrial Tribunal was obviously right in the conclusion that it had reached. This is a case where an applicant had been given very clear advice that in order to keep her position open a complaint must be presented to an Industrial Tribunal by a certain date.We are not in the slightest bit convinced by the argument which was addressed to us by Ms Brooks on behalf of the ELAAS scheme, to whom we are grateful. To the effect that it only became reasonably practicable for the applicant to make her complaint when she had seen the advertisement, effectively advertising her previous job. That seems to us not to be consistent with the letter of 14th November 1997, since there was nothing in that advertisement which suggests that the funding question had been resolved.In any event, it seems to us that the Industrial Tribunal were charged with the decision as to whether it was reasonably practicable. They will have had in mind, because they frequently deal with these cases, the decision of the Court of Appeal in Marley Floors Ltd v Anderson , and they were well entitled, as it seems to us, to reach the conclusion that as it was reasonably practicable for this complaint to have been presented within time, it was not a case where they should take jurisdiction. Accordingly, the appeal will be dismissed.