MR G RICHES v RUSSEL CAWBERRY LTD [2000] UKEAT 592_00_1511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 592_00_1511

Case No Appeal No. EAT/592/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR G RICHESAPPELLANT

RUSSEL CAWBERRY LTDRESPONDENT

Before

His Honour Judge D M Levy

Date 15 November 2000

[1]APPEARANCES For the Appellant The Appellant In Person JUDGE LEVY QC On 14 April 1999 Mr Gordon Alan Riches made an Application to an Industrial Tribunal received on 16 April, complaining of unfair dismissal and seeking a redundancy payment. A Notice of Appearance was entered by the employer on 21 April 1999 and there was a Preliminary Hearing of the Applicant's claim before an Industrial Tribunal on 16 July 1999. On that date the Tribunal decided it did not have jurisdiction to hear the application because it has not been started in time.

[2]The Applicant was the Appellant today on this Ex Parte Hearing of an appeal. He was in person. Unfortunately, through administrative oversight, he had not realised in advance that the hearing which took place on 16 July was on a preliminary point and when he got the decision of the Tribunal he asked for a review and looking at page 66 of our bundle it is clear that the decision was made on 23 August 1999.

[3]The review, having taken place, the Tribunal affirmed its decision and in the context of the Appellant's claim, it is important that we should read the summary reasons in full. It was a unanimous decision, confirming its earlier holding decision is confirmed:

" SUMMARY REASONS 1. The Applicant applied to the Tribunal for it to review its decision on the 23 August 1999 that it did not have jurisdiction to hear the claim. This was because Mr Riches had not filed his claim at the Employment Tribunal within a period of three months as he was required to do by section 111 of the Employment Rights Act 1996. The Tribunal was satisfied that it had been reasonably practicable for the complainant to present his claim before the end of the period of three months and so did not extend the time limit for bringing a claim. 2. The parties consented to this matter that is the review being heard by a Chairman and 1 member only. 3. Mr Riches made his application for review to the Tribunal on the grounds that a copy of a letter from the Tribunal to the Respondent written just before the hearing in July 1999 confirming that preliminary matters would be considered at the outset of the hearing, had not reached him until after his return from the Tribunal hearing. The letter did not in fact state that there was to be a preliminary as such but said "any preliminary matters will be considered at the outset of the hearing"

. The Respondent said that there should not be a review of the decision because Mr Riches was well aware that the three month limit imposed by Section 111 applied in his case and, indeed, this matter had been raised previously in a letter from the Tribunal to the Application date 4 May 1999. 4 The Tribunal decided that it was in the interests of Justice for it to review its decision. This was because a letter of 4 May 1999 was addressed to the wrong address and therefore the Tribunal accepted that Mr Riches did not receive the letter. The Tribunal also accepted that Mr Riches did not receive the letter of 13 July from the Tribunal until after he returned from the hearing on 16 July. He might therefore not have been as prepared for the time limit issue to be considered by the Tribunal as was desirable." 5. Having listened to representations from the parties and having considered its previous decision on 23 August 1999 and read relevant documentation, the Tribunal decided to confirm its decision. 6. This was for the following reasons: (a) the Applicant told us that although he had not received the Tribunal's letter of 13 July until after he returned from the hearing on 16 July, he had been aware from other sources that there was a three month time limit for bringing a claim. Pausing there, we interpose that once a party is aware of a time limit to bring a claim, it is of paramount for the party if it is to have a hearing at the Employment Tribunal that he or she should have brought a claim within the relevant period (b) The Applicant told the Tribunal that he did not now agree that his employment had terminated on 11 July although that had been agreed at the previous hearing. He said his employment may have been terminated on 12 or 15 July so that his claim might have been filed within three months but the Tribunal was of the view that even if the Application could have established at a re-hearing that he was dismissed later than 11 January, he would not be able to establish that he was dismissed within three months of the filing of the Originating Application on 16 July 1999. Pausing there it seems to us that the mention of 12 or 15 July is a typographical error for 12 or 15 January. (c) Mr Riches confirmed that he knew that he had been dismissed by the Respondent. He had used the letter written by Mr Ryan on behalf of the Respondent on 14 January 1999 confirming his employment had been terminated when he was looking for other jobs. The Tribunal is in no doubt that the Applicant had weeks if not months from the date when he knew he had been dismissed and that he was not immediately going to be re-employed in order to file a claim at the Tribunal within the time limit. Pausing there this was a finding effect, which the Tribunal was entitled to make having heard the evidence from both sides at the re-hearing. (d) Mr Riches told the Tribunal that the reason he did not commence proceedings earlier was that he felt he had no proof of the unfair dismissal so he would not succeed in a claim. The Tribunal respects the fact that Mr Riches did not want to appear frivolous in finding a claim that he could not substantiate. However, by not filing a claim, Mr Riches made a judgement. It was certainly reasonably practical for him to present his claim to the Tribunal within a three month time limit, but Mr Riches chose not to do so. (e) None of the arguments put forward by Mr Riches were different from those used by him at the hearing on 16 July 1999. In the circumstances the Tribunal having reviewed its decision of 23 August 1999, confirmed it."

[4]That decision was sent to the parties on 28 March 2000 and from that Appeal Mr Riches appealed by a Notice received by the Tribunal in May. We said this is the Preliminary Hearing of his Appeal. We have anxiously read the many documents which he sent to us in support of his Appeal. We do understand that, because he has failed on the Preliminary point, he has not heard the complaint which he wished to make determined by a Tribunal on its merits. But it is clear law that a Tribunal can only hear proceedings where they are brought within 3 months of dismissal. In our judgment the Tribunal, on its findings of fact, was entitled to reach the decision it did both as to the date of dismissal and as to the reasonable practicality of the Appellant here, the Applicant below, bringing proceedings in that period.

[5]In the circumstances, though we sympathise with Mr Riches because he has not had a day in court on the merits of the dismissal, there are no grounds for us to interfere with the decision, which the Employment Tribunal was entitled to reach; therefore, not without regret, we dismiss this Appeal.