PETS AT HOME LIMITED v MR M CROSSLEY [2000] UKEAT 1168_00_3110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1168_00_3110Case No Appeal No. EAT/1168/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PETS AT HOME LIMITEDAPPELLANTMR M CROSSLEYRESPONDENT
Before
His Honour Judge J R ReidLord Davies of CoityDate 31 October 2000
[1]APPEARANCES For the Appellants MR W J DIAMOND (Representative) Employee Management Ltd 4 Worsley Court High Street Walkden Manchester M28 3NJ JUDGE REID QC : This is an ex parte preliminary hearing of an appeal by the respondent below, Pets at Home Limited, against a decision in favour of the applicant below, Mr Crossley, in which the Employment Tribunal determined that the applicant's complaint for unfair dismissal was not presented to the tribunal before the end of the period of three months beginning with the effective date of termination of his employment, but was satisfied it was not reasonably practicable for the complaint to be presented before the end of that period and it was presented within a reasonable period thereafter. The material facts, so far as the presentation of Mr Crossley's application were concerned, were that he was dismissed on 8th February 2000 and his Originating Application was received by the tribunal on 9th May 2000.[2]The tribunal considered that the final day for presenting his application would have been 8th rather than 7th May 2000 because of the administrative problems that then existed at the Employment Tribunal at Manchester, namely that the tribunal's home building was being substantially refurbished and the tribunal had moved from Alexandra House to Barlow House, and that it would not have been possible for a complaint to have been delivered to the address on the form, namely Alexandra House on Sunday, 7th May 2000. The tribunal applied Lord Denning's decision in Pritam Kaur v S Russell and Sons Limited [1973] 1QB 336 , and distinguished Swainston v Hetton Victory Club Limited [1983] 1 All ER 1179 on the basis that it would not have been possible for the complaint to have been delivered by posting through the letter box at Alexandra House on 7th May 2000.[3]This still left the applicant a day out of time. The tribunal first dealt with and rejected the applicant's primary reason advanced for the delay in presentation. They said: "19. The Tribunal was not satisfied that the applicant's reason for delaying the presentation of his complaint, i.e. that he was awaiting the outcome of an internal appeal and/or did not realised the full significance of the three month limitation period, were sufficient to amount to circumstances in which it was not reasonably practicable for the complaint to be presented before the end of the period of three months.[4]The tribunal then went on to deal with a second point:20. However, having regard to the temporary relocation of the Tribunal from Alexandra House to Barlow House, and the possible delay that this may have caused in the receipt of the envelope containing the applicant's complaint, the Tribunal felt that those amounted to circumstances in which the benefit of any doubt should be given to the applicant. Furthermore, although this did not effect the Tribunal's assessment of the strict legal interpretation of the situation, the respondents most certainly contributed to the situation that arose by reason of the fact that, notwithstanding an immediate appeal by the applicant, no steps whatsoever were taken by them to arrange a hearing of the appeal during the three month period, despite protestations from the applicant.21. In all these circumstances, having regard to the prejudice that would be caused by the applicant if the Tribunal refused to accept jurisdiction, whereas no prejudice to the respondents could be identified, it was felt that this was a case where the Tribunal was entitled to extend the period for presentation of the complaint for the very short period involved."[5]It is said on behalf of the appellants that this passage shows that the tribunal dealt with the matter on a wrong basis of law.[6]The power of extension is contained in section 111 of the Employment Rights Act 1996 which provides at subsection (2):
"(2) Subject to subsection (3), and employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal- … (b) within such further period [ i.e. after the end of the period of three months ] as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
[7]It is said that the passages in the decision, which I have quoted, show that the tribunal, far from taking the view as they should have done that the onus was on Mr Crossley to satisfy the tribunal that it was not reasonably practicable for him to present the complaint before the end of the period of three months, had looked at the respective positions of each side, had looked at the situation which had occurred and had then wrongly decided that what it would do was conduct a balancing exercise as to what it thought was fair.[8]Criticism was also directed to some of the findings of fact and some lacunae in those findings but we do not regard these criticisms as being of any substance.[9]One can well see why the tribunal would have wished to find in Mr Crossley's favour, because, as they rightly observe, the appellants were less than adept in the handling of the situation by allowing a period of three months to elapse during which no internal disciplinary appeal was fixed or took place, but in all the circumstances, it seems to us, that there is an arguable case for saying that the tribunal erred in law in reaching the decision that time could be and should be extended as it was, and that the case should therefore go to a full hearing.[10]The case to be listed in Category C and a time estimate of 2 hours.