MRS K DEY v 1)FARLEY JUNIOR & WHIPPERLEY INFANT SCHOOL & 2) MRS E HERD [2000] UKEAT 0762_99_1503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 0762_99_1503

Case No Appeal No. EAT/0762/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS K DEYAPPELLANT

1)FARLEY JUNIOR & WHIPPERLEY INFANT SCHOOL & 2) MRS E HERDRESPONDENT

Before

His Honour Judge Collins

Date 15 March 2000

[1]APPEARANCES For the Appellant In person JUDGE COLLINS: This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Bedford, their extended reasons having been promulgated on 27 May 1999. The tribunal had before it a complaint by Mrs Dey that she had been unfairly dismissed from her position as an unqualified teacher at the Farley Junior and Whipperley Infant School and also that she had been racially discriminated against in relation to her dismissal. and previous matters. The complaint was presented to the tribunal one day out of time on 30 July 1998. The appellant had been dismissed on 30 April 1998 and accordingly, as she was advised very clearly in a letter from the Eastern Regional Officer for UNISON dated 20 May 1998, her application would have to be presented to the office of the tribunal by 29 July at the very latest.

[2]Therefore the tribunal had to consider before proceeding further in the case whether or not they would extend time; the tests were different for the unfair dismissal claim and for the racial discrimination claim. So far as the unfair dismissal is concerned, the tribunal had to decide whether or not it was reasonably practicable to present the claim within the 3 month time limit, because if it was they could not extend the time. So far as the racial discrimination claim is concerned, the tribunal's discretion was much broader. They were entitled to consider whether in all the circumstances it was just and equitable to extend the time limit and could do so if it was just and equitable even if it had been reasonably practicable to present the claim within 3 months. The tribunal declined to extend time in either case and it is against that decision that this appeal is now brought.

[3]The essential facts are that the appellant was employed as an unqualified teacher at the respondents' school from September 1992 and was working for 18½ hours a week. The respondents' case was that she was dismissed by reason of lack of competence; that the agreed procedures laid down for dealing with assertions of lack of competence were complied with and they resisted the claim.

[4]In her Notice of Appeal, at page 2 of our bundle, the appellant says: - "The Chairman misdirected himself and the Appellant as the IT1 was posted by 1st class post on the 28-7-98 and reached the office by 29-7-98 (however it was lodged on the 30-7-98).

[5]On 10 September 1999 the appellant swore an affidavit for the purposes of this hearing and in that affidavit at paragraph 2 (b) she said:

"I was not given an opportunity to explain at 14 October hearing why the IT1 was late. It was signed on 28 July 1998 and I directed my Union Representative to send it off immediately to be there by 29 July 1998. It should have been sent by fax that day."

[6]It is obvious that there is a disparity between what is said in the Notice of Appeal and what is said in the affidavit. The position is made even more obscure when one looks at the originating application itself. We have a photocopy and the first page has a stamp of the tribunal at Bedford dated 30 July 1998; at the top of the page there is a fax record dated Thursday 31 July 1997 2:01pm; the fax header says it is from a Mr and Mrs Azad. On the second page is a fax header at the top reading 30 July 1998 13:01pm from LBC Education Department. Mrs Dey asked us this morning for an adjournment so that she could make the position clear; we were not prepared to grant one. Mrs Dey was always well aware that this appeal concerned the question of when the application was received by the tribunal, she had already given two different accounts of it, one in her Notice of Appeal and one in her affidavit. Whatever happened it is clear that the tribunal did not receive the application until one day too late.

[7]Mrs Dey, who appeared before us today in person, put forward a number of reasons why the tribunal should have extended time. Her daughter Miss Roy has given her some assistance. We are aware of Mrs Dey's medical history having looked at Dr Shah's report and are sympathetic but our job is to look to see whether the tribunal has made any error of law in its approach. We would not want anything that we say in the course of our judgment to be interpreted as any lack of sympathy or understanding of Mrs Dey's situation attributable to her medical history.

[8]The hearing before the tribunal actually took place on 17 February. Mrs Dey was not present. She had apparently gone to India at the end of January because her mother was not well. But her representative, Mr Hughes, described as a consultant, is not recorded as having applied for an adjournment. Nor did he apparently know why she had gone to India because in paragraph 18 of their reasons, the tribunal said: - "Her absence today in India may be occasioned by, for example, a family emergency rather than a holiday and we consider it appropriate to give her the benefit of any doubt there may be."

[9]So it does not appear that Mrs Dey had informed her representative of the reason of why she had gone to India, because he did not transmit that reason to the tribunal or apparently ask for an adjournment. They dealt with the matter on the basis of a draft affidavit which she had prepared and on the basis of her medical report.

[10]The first matter which the appellant relied on was her illness. The report of Dr Shah was before the tribunal and is accurately summarised in paragraph 7 of their reasons. Mrs Dey told us this morning that her medical situation was such that she was simply was not well enough to visit the union representative until 28 July, but the medical evidence simply does not bear that out. She visited her medical practitioner on 11 July with depression and other problems and had drugs prescribed. The tribunal found that there was nothing in the report which prevented her from understanding what her union representative had been telling her; there is certainly nothing in it which suggests that she was not well enough to visit him to give instructions.

[11]The second matter was that Mrs Dey was contending, and has repeated in the course of her argument this morning, that she was badly advised by her union. But in fact the union representative, who was a full time union officer, Mr White the Eastern Regional Officer for UNISON wrote her two letters, which the tribunal had. On 20 May he gave her some general advice about time limits and in particular that the application would have to be registered by 29 July at the latest. Although we have not seen the letter, the tribunal recorded that the date of 29 July was in bold type. In the next letter of 17 June he also referred to the 3 month time limit in urgent terms and asked Mrs Dey to provide certain basic information. Nothing has been put forward by Mrs Dey to explain why she did not respond to those 2 letters. The tribunal said in paragraph 6 of their reasons that they had no difficulty in rejecting the contention made in paragraph 11 of her draft affidavit that she had been wrongly advised. On the contrary, she had been competently and accurately advised and the importance of the limitation date made very clear to her. There is no basis on which we could possibly come to a different conclusion.

[12]We turn to deal with the two different approaches that I mentioned earlier as to time limits. So far as the complaint of unfair dismissal is concerned, the tribunal dealt with it in paragraphs 7 and 8 of their reasons. They held that there was no material to suggest that it had not been reasonably practicable for the appellant to lodge her complaint within the 3 month period. We have no hesitation in agreeing with that summary. All the material before us suggests that it was perfectly practicable for Mrs Dey to present her application well within the 3 month period. She had the material; twice her union warned her of the impending time limit; there was no medical evidence suggesting that she be was prevented from submitting her application by 29 July.

[13]So far as the racial discrimination is concerned, the test as I have indicated was different; was it just and equitable for the time limit to be extended? The tribunal set out their reasons in paragraph 14 of their judgment. They repeated the advice that she was given by the union. They said that it could not have been clearer. She had suggested that she had defective understanding of the English language and could not understand what she was being told. The tribunal rejected that. She had worked as a teacher in a school for a number of years and they did not accept that she did not understand what she was being told and they referred again to the medical evidence. Mrs Dey knew what her rights were, she knew the time by which she would have to make her application and there was no evidence to explain why she did not do what she was advised to do. Mrs Dey criticises the tribunal's decision. She wishes they had come to a different one. But as we have explained to her during the course of this hearing this appeal tribunal can only interfere where the tribunal has made an error of law.

[14]We cannot substitute our own judgment for that of the tribunal unless they have come to a decision which no reasonable tribunal could have come to. In this case the tribunal looked at all the facts, which were placed before them. They considered them and the medical evidence very carefully and they gave balanced and careful reasons for deciding why they would not extend time. We find no error of law in their approach and in those circumstances, we have no alternative but to dismiss this appeal.