MR P F WRIGHT v BRITISH TELECOMMUNICATIONS PLC [2000] UKEAT 1067_99_1304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1067_99_1304Case No Appeal No. EAT/1067/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P F WRIGHTAPPELLANTBRITISH TELECOMMUNICATIONS PLCRESPONDENT
Before
Mr Justice Burton Mr J C Shrigley Ms B SwitzerDate 13 April 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondents MR HARRISON (of Counsel) Instructed by: British Telecommunications Plc BT Group Legal Services BT Centre 81 Newgate Street London EC1A 7AN MR JUSTICE BURTON : This is an appeal brought by Mr Wright who was originally an Applicant together with Mr Saieva, who were both dismissed by British Telecommunications Plc on or as from 9th August 1997. Their Originating Applications alleging unfair dismissal were both presented at the Employment Tribunal on 12th October 1998, that is more than 11 months out of time, and the Employment Tribunal at Birmingham, held on 5th March 1999, unanimously decided that there was no jurisdiction to entertain the applications, on the basis that they were out of time. In a very clear decision by Mr McCarry as Chairman, in which the facts were set out, the Tribunal made a clear finding, having directed itself correctly, so far as the law is concerned, by reference to Norgett v Luton Industrial Co-operative Society Ltd [1976] IRLR 306 and Walls Meat Company Ltd v Khan [1978] IRLR 499 CA , in respect of what issues they should address for the purposes of considering whether an extension should be given and, in particular, whether it could be said to have been not reasonably practicable for the then Applicants to present their application in time. The conclusion at paragraph 14 is:
"14 In this case we find that the applicants have failed to satisfy us that there was any impediment which reasonably prevented their making an application in time. …"
The Tribunal set out the reasons for that and their conclusions on the facts in paragraph 14 and 15.[2]At paragraph 16 the Tribunal concludes:
"16 The applicants had the opportunity of presenting their applications in time. They knew of their rights and the time limits associated with their exercise. It was practicable, at any time during the three months after their dismissals that they should have decided to act, at least by taking advice. It was also reasonable to expect that they should have done something. We find that there was no reasonable impediment rendering it impracticable that a claim should have been submitted and accordingly, we dismiss these applications for want of jurisdiction."
We can see no basis in law or in fact to challenge that conclusion.[3]The Notice of Appeal was issued on 9th August 1999 on behalf of both original Applicants, brought in their names by a firm of solicitors, Lawford & Co. Lawford & Co wrote on 21st October 1999 to the Employment Appeal Tribunal acknowledging receipt of the Appellant's PHD Form for completion and responding to say as follows:
"We are no longer instructed in this matter and have sent the form and all necessary documentation directly to the Appellants for them to decide whether they wish to instruct other Solicitors or deal with the appeal themselves. It seems inevitable, that there will be a slight delay while the Appellants consider their position."
[4]The further development was that on 10th November 1999 solicitors, Messrs Blakemores, on behalf of Mr Saieva, wrote to say that they had been instructed on behalf of Mr Saieva in place of Messrs Lawford & Co, and that Mr Saieva wished to withdraw his appeal to the EAT and an order giving Mr Saieva leave to withdraw was entered on 23rd December 1999.[5]Mr Wright has not expressly so withdrawn his appeal. The address that was given for Mr Wright by Lawford & Co in their letter of 21st October was 50 Gorse Way. It was to that address that the Employment Appeal Tribunal wrote both on 5th November, enclosing a copy of the letter from Messrs Lawford & Co, and on 23rd December informing Mr Wright of the withdrawal of Mr Saieva's appeal and inviting response from Mr Wright. No such response has been received and this hearing has been listed for disposal of the appeal, but, in any event, as I have indicated, we have taken the opportunity to consider the merits of appeal and had this been a substantive preliminary hearing, we would have, in any event, been satisfied that this appeal should be dismissed.[6]The Respondent has attended under the belief that this was going to be the full hearing of an appeal or, at any rate, a hearing inter partes, and helpfully prepared a detailed skeleton argument underlining the absence of case on the part of the surviving Appellant, Mr Wright. That skeleton is headed up "Hearing: 13th April 2000" . We are informed by Mr Harrison, Counsel for the Respondent, that that skeleton argument was sent some days ago to Mr Wright, at 40 Gorse Way, which is the address that the Respondent had for Mr Wright, and that they have received no response to that skeleton. Whether Mr Wright lives at 50 Gorse Way or at 40 Gorse Way he will thus have had information that there is a hearing on 13th April 2000. Mr Wright has not attended before us.[7]We are satisfied, in those circumstances, that this appeal should be dismissed.