Hill v HMV UK Ltd [1999] UKEAT 925_98_0104

EAT
Hill v HMV UK Ltd
[1999] UKEAT 925_98_0104 · 1999-04-01
MR JUSTICE LINDSAY : We have before us by way of a full hearing the appeal of Mr D. Hill in the matter D. Hill against HMV UK Ltd.It is an appeal by Mr Hill against the decision at a preliminary hearing, the Chairman sitting alone, that Mr Hill's complaint as to unfair dismissal by HMV UK Ltd was out of time under the provisions of section 111 (2) of the 1996 Act. One has to know something of the procedural history.The allegation as to dismissal is that it occurred on 12 January 1998. By 9 April 1998 a form IT1, the form for complaint, was ready at the Applicant's Solicitor's office. What the Tribunal says about that in their paragraph 10 is:
"Whatever the reasons for the previous delay, the Originating Application was prepared and in the hands of the Applicant's Solicitors on 9 April 1998."
On the same day, 9 April, it was posted: that was a Thursday and that appears in paragraph 6 where the Chairman says:
"The Originating Application was posted by the Applicant's Solicitors by first class post on Thursday, 9 April 1998."
April 10 was Good Friday. On 14 April, the Tuesday, the IT1, as it would seem, was stamped as received, stamped with the date "14 April 1998". The stamp simply says:
"Received 14 April 1998" and then it says "
Industrial Tribunals".The Chairman concluded on this subject as follows, in his paragraph 6:
"Because of the intervening Easter holiday, the Originating Application was not received until the following Tuesday, 14 April 1998, there being no postal deliveries to the Industrial Tribunal's office on Saturdays, Sundays or Bank Holidays."
On 2 June 1998 there was the hearing before the Industrial Tribunal, Mr Scott as Chairman sitting alone, and on 4 June the decision was promulgated.On 11 June a letter was written by the Post Office saying that whilst there were no deliveries on the Good Friday, deliveries had resumed on Saturday the 11th. That letter, addressed to Mr Hill's Solicitors says:
"Thank you for your enquiry of 9 June regarding mail deliveries to the Employment Tribunal office at Southampton.
I can confirm that no mail was delivered to this address on Good Friday. However, deliveries resumed on Easter Saturday."Needless to say, that letter of 11 June was not before the Tribunal when the Chairman decided, as he did, on the 2nd and 4th. Having got that letter, the advisers to Mr Hill thought it was appropriate to seek a review and they did that the following day, on 12 June.On 16 June an unsworn statement was prepared by Mr William Tucker on behalf of the Applicant's Solicitors. It makes a number of points. He says in his paragraph 3:
"Following receipt of a letter to that effect [and that effect was that there would be a preliminary hearing to decide the point about whether the application was in time and that that was ordered for 2 June] from the Industrial Tribunal dated 15th April 1988 I made enquiries of the Industrial Tribunal as to when the post had been received by them over the Easter Weekend. The reason for this was that the three month limitation period expired at midnight on Saturday 11th April, which was the Saturday over the Easter Weekend. I was informed by the staff I spoke with on the telephone that the post for the Tribunal was delivered on the Tuesday morning by the Post Office as the Tribunal had no letterbox.
At this stage, I accepted what I had been told and accordingly sought to find a legal reason why the application was nonetheless on time."On 18 June the Employment Tribunal Chairman gave Extended Reasons for his decision which had been promulgated on 4 June. In paragraph 9 he says:
"The statutory three-month time-limit for the presentation of both claims expired three months after the date of termination of the Applicant's employment, i.e. on 11 April 1998. The Originating Application, therefore, was presented three days out of time."
So that suggests, as we would think rightly, that had the application been lodged on the 11th, the Saturday, it would have been in time. The Chairman also concluded that even at that stage - 11 June - it would have been open to the Applicant's Solicitors to present the Originating Application in time by delivering it personally to the Tribunal office, instructing local agents personally to deliver a copy or sending the papers by fax.On 10 July the application for a review was refused and there was full reasoning given. In summary the Chairman held the view that the application for a review should be declined as it had no reasonable prospect of success.On 29 July there was the Notice of Appeal and on 20 October 1998, at a preliminary hearing, the Employment Appeal Tribunal directed the matter to go forward to a full hearing. That is the procedural background.It all, as it seems to us, depends on such evidence properly-so-called, as was presented on a number of subjects at the hearing on 2 June. There are some difficulties about that evidence because it is not fully described in the decisions themselves, be it the substantial decisions or the declining of a review. Quite what evidence, if any, was actually before the Tribunal? The Respondents have not appeared today and we have no Chairman's notes. It remains entirely unclear what, if anything, was before the Tribunal as evidence, properly-so-called, at the hearing of 2 June. In particular, what evidence, if any, was there on the important conclusions that there was no delivery by post on Saturday the 11th, that the application was not received until Tuesday the 14th, that delivery would have been possible by way of personal delivery either on Good Friday the 10th or Saturday the 11th and that delivery would have been possible by fax on Good Friday the 10th or Saturday the 11th?There is no recital of any oral evidence as having been given and there is no suggestion that witness statements were put in front of the Tribunal. It could be that the Chairman had made some enquiries of his own. They might have led him to such conclusions as he made, but the Chairman's own enquiries and his understanding of the answers to them is, without more, not evidence. One could readily get into a state, were that not so, that one would be applying to cross-examine the Chairman. A moment's thought indicates how unsuitable that could prove to be.There are, of course, matters on which judicial notice can be taken but judicial notice is only safely to be borne in mind when the subject matter is clear and for all practical purposes incontestable. Moreover, where judicial notice is relied upon the judge concerned should indicate that that is so. The conclusions here were not said to have been arrived at by way of judicial notice and it would have been wrong if they had been. If, for example, a member of staff had been asked a question by the Chairman and the Chairman then bore in mind that answer, that is not a form of information which the parties can have any convenient ability to question and yet the member of staff may be wrong, or the Chairman might have misunderstood the member of staff. Evidence properly-so-called, it seems to us, was necessary, especially since the consequence of a ruling against Mr Hill is that a case that would otherwise be proper to go to judgment would be rendered impossible on the very threshold. Before that is done one has to have clear evidence justifying such a conclusion.In this case, as it seems to us, a series of questions arose which required to be dealt with by evidence . Thus, firstly, the IT1 form is stamped 14 April, the Tuesday. Does that stamp of the 14th, according to the Tribunal's ordinary practice, preclude its having arrived at the Industrial Tribunal on Saturday the 11th? If, under the ordinary practice of the Industrial Tribunal as to stamping, the stamp on the 14th would preclude its having been received on the Saturday, was the ordinary practice here followed or, at any rate, was there evidence that there was no reason to think that it had not been followed. Did anyone give evidence that the IT1 had not in fact arrived on the Saturday, or could not have arrived on the Saturday? If any such evidence was given, was it given by a person who could speak from personal knowledge as to what was or was not at the Tribunal office on the particular Saturday? Is there normally a Saturday post to the Tribunal and, if there is, is it kept separate from the next week's first post, so that one can see which arrived in the next week and which had arrived earlier on the Saturday? Are the two lots of post received, as the case might well be on a Monday morning (or, in this case, the Tuesday morning) kept separable and, if separable, were they separated and if so, by whom? Is the fax machine habitually left on on Saturdays and was it left on so it could have received a fax message on Saturday the 11th, or on Good Friday the 10th? Is the layout of the building such that personal delivery on the Friday or the Saturday was in fact possible? Even if the office was then closed, is there (to use an expression used in one of the cases) a channel for receiving, even when the office is closed.This is not a case, it seems to us, on which we need or could properly at this stage go into the authorities such as Ford v Stakis Hotels & Inns Ltd [1988] IRLR 47, a case which itself shows what fine distinctions have sometimes to be drawn on the evidence before it can finally be safely concluded whether an application is or is not in time, because it seems to us that there appears to be a more fundamental error of law than might appear from an examination in cases such as Stakis . That is that there would seem to us, doing the best we can on the limited material we have and in the absence of the Respondent, to have been no evidence at all upon which the Chairman could have concluded, as he did, that there was no delivery on the Saturday, no receipt until the 14th, that delivery would have been possible by way of personal delivery and that delivery would have been possible by way of fax on both Good Friday the 10th and Saturday the 11th.Where there is no evidence whatsoever in support of conclusions of fact, then, of course, one encounters an error of law and we think this is such a case. Accordingly, we shall allow the appeal.We do not go on to conclude that the application was in time for the very reasons we have already given, namely that there is no evidence on which, one way or another, an adequate finding could yet be made. Accordingly, we allow the appeal but remit it to a different Tribunal.