ANI Aurora Plc (t/a Edgar Allen Engineering Ltd) v Eastell [1999] UKEAT 871_98_0103

EAT

ANI Aurora Plc (t/a Edgar Allen Engineering Ltd) v Eastell

[1999] UKEAT 871_98_0103 · 1999-03-01

HIS HONOUR JUDGE D M LEVY QC: This is an appeal from the decision of an Employment Tribunal sitting at Sheffield on 12 May 1998. On an application by the present Appellant company raised in its answer to proceedings commenced by the Applicant, the Tribunal was asked to consider whether the proceedings had commenced on time. The unanimous decision of the Tribunal was that the claim of unfair dismissal and disability discrimination was validated. It allowed the matter to proceed to a full hearing of the substantive issues. The Decision was sent to the parties on 26 May 1998. From it, the Appellant company appealed by Notice received on 3 July 1998. The appeal was permitted to go to a full hearing following an ex parte hearing on 23 October 1998.

The issue before the Tribunal at the preliminary hearing was whether the time should have been extended from that provided by statute for commencement of proceedings. The Applicant was dismissed on 11 November 1997. Proceedings in the Industrial Tribunal were not commenced until 17 February, by which time the time permitted by statute had expired. The reasons given for extending time are set out pithily in the Extended Reasons, remitted to the parties on 26 May 1998. Essentially the Applicant had been dismissed because of ill health. The reason he did not commence proceedings in time was that during the statutory three month period from dismissal during which proceedings should be issued he attempted to seek legal advice. However he did not get any legal advice at all, or any effective legal advice until after the period had expired. The Tribunal said in paragraph 10 "we take account of the factors to be considered as set out in Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

", Having taken account of those factors, the Tribunal concluded that it had not been reasonably practicable for the Applicant to have commenced in time. They considered it appropriate to extend time by 10 days for the proceedings to be commenced.

Because disability was also in issue, the Tribunal went on to consider the relevant provisions under the Disability Discrimination Act 1995 Schedule 3, and concluded it just and equitable to allow that claim, setting out the similar provisions under the 1975 Act which provided the statutory authority to permit extension of time. Appealing against that decision, Mr Linden who did not appear at the Employment Tribunal, submitted that although the Tribunal referred to the decision in Palmer v Southend-on-Sea, nowhere in their judgment do they refer to the passages set out in the decision of the Court of Appeal as to what the considerations the Court of Appeal thought might be applicable before an extension of time was ordered.

Giving the judgment of the Court, May L.J. comprehensively reviewed earlier decisions and went on to say:

"What, however is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and it is seldom that an appeal from its decision will lie. Dependent on the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the adviser's knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal, taking all the circumstances of the given case into account."

It is right, as Mr Eastell for the Respondent pointed out, that there is said a decision of fact from which an appeal rarely lie, but equally a loser is entitled to know why he has lost. In that connection, Mr Linden has referred us to the decision of the Court of Appeal in Meek v The City of Birmingham District Council

[1987] IRLR 250

. It is not clear from the very short Extended Reasons that the Tribunal asked and answers the questions posed. When it appeared relatively clear that within the statutory period the employee took no steps to commence proceedings, it is the more necessary for the employer to know why this was not reasonably practical for him to do and why it was appropriate or just and equitable to extend time.

In what we consider must have been a borderline case, we are satisfied that the Extended Reasons given for the decision do not sufficiently set out reasons and that therefore the matter has to be reheard. We think it should be heard by a different panel to that which heard it on 12 May 1998 and there should be a hearing as soon as this can be arranged. We should pay tribute to Mr Woodhouse who represented the employee below and has resolutely attempted to support the decision reached. We allow this appeal and remit the matter for a rehearing before a different panel.