MRS M C WILLING v MR R J COTTAM [1999] UKEAT 1118_98_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1118_98_0810Case No Appeal No. EAT/1118/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M C WILLINGAPPELLANTMR R J COTTAMRESPONDENT
Before
Mr Justice Holland Ms S R Corby Mrs R A VickersDate 8 October 1999
[1]APPEARANCES For the Appellant MISS M RYAN (Appellant's daughter) MR JUSTICE HOLLAND: This matter has been listed before us today in circumstances which we like to think are somewhat unusual. The short history of the matter is as follows. Mrs Willing has brought a complaint in an Employment Tribunal alleging unfair dismissal. That complaint was brought by way of an IT1 dated 20 February 1998. In the IT1 she indicated that the date of the dismissal had been 24 October 1997. It was therefore immediately obvious that notwithstanding the terms of section 111 Employment Rights Act 1996 her complaint had been brought outside the prescribed period of three months. In those circumstances the matter sensibly was listed before a Tribunal sitting at Truro for a preliminary decision as to whether she was not barred by reason of the application of that section. In the result the decision of the Tribunal was:
"This application was not presented within the three-month time limit set out in section 11 (2) of the Employment Rights Act 1996 and I do not exercise my discretion to extend that time limit. This claim stands dismissed."
It is to be observed that that decision proceded on the premise of a finding by the Chairman that the dismissal had been on 9 October, that dismissal having been conveyed orally to Mrs Willing. Mrs Willing mounted an appeal to this Tribunal against that finding and that appeal first came before this Tribunal by way of a preliminary hearing held on 10 February 1999. We have the advantage of the order of this Tribunal being included in the bundle, that order in its turn being supplemented by a transcript of the judgment then given by Mr Justice Charles then presiding over that particular Tribunal. It is to be observed that the essential effect of the ruling of that Tribunal on that date was that the matter should be allowed to proceed to a full hearing of this Tribunal, that is, an inter partes hearing.[2]In the course of giving the judgment Mr

Justice Charles said this:

"The difficulty that we find ourselves in on this preliminary hearing is that it does not appear from the Extended Reasons, given by the Chairman of the Employment Tribunal, that he considered the case as to extending time in the alternative, namely on the basis that, on any view, the employment came to an end on 24 October. We therefore feel, that on a preliminary hearing, we do not have sufficient information to enable us to determine whether, if the matter were considered on that alternative view, Mrs Willing would have no reasonably arguable case that there should be an extension of time. We have therefore concluded that it would not be right and at this stage to hold that there is no reasonably arguable point of law on this appeal. We should say that we have discussed this at some length and at one stage we were not all in agreement on the point. We are concerned that, on the assumption that the date of termination was 24 October, Mrs Willing may not have a reasonably arguable case as to the time being extended and therefore in allowing this appeal to proceed we are going to make some directions as to the filing of statements so that this Tribunal when it hears the appeal will have further information below then and may therefore be able to make a final determination on the point as to extension of time should they consider this to be appropriate."
He then gave the directions of this Tribunal such including that Mrs Willing do file an affidavit setting out the reasons why the application to the Employment Tribunal was not made within the appropriate three-month period. In the event Mrs Willing has filed that affidavit and it is at page 44 of the bundle.[4]Somewhat unusually it was then decided that this matter should come back before this Tribunal for another preliminary hearing, apparently to review our earlier decision and to say whether or not we confirmed it. In the judgment of this Tribunal sitting today it would take very extreme circumstances to persuade us that an order of this Tribunal should be revoked purely on the basis of the material revealed by way of compliance on the part of Mrs Willing with a direction that was aimed at putting material before the Tribunal on the occasion of the inter partes hearing. Granted that on examination of her affidavit one can see points that can be made on both sides but in our present judgment that is a matter that should be left to the inter partes hearing. It would take extreme circumstances to make us revoke the earlier order and we do not think that those circumstances arise presently. Thus it is that we in no way seek to revise the order that was made by this Tribunal on 10 February 1999. Thus it is that the matter continues to the inter partes hearing in accordance with that order.[5]We would look before departing with this matter two observations. First, through no fault of the parties, this matter has been delayed longer than one would like and than is appropriate given the urgency of the matter overall and we would invite those concerned with listing to do their best to give some expedition to this matter so that early final conclusion may be arrived at. The second point we would like to make is as follows. We have had the advantage this morning of an address to us by Miss Ryan, Mrs Willing's daughter. If Miss Ryan will accept the compliment from us, she did it quite admirably.