CONSIGNIA (FORMERLY THE POST OFFICE) v MR R SEALY [2001] UKEAT 0521_01_1106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0521_01_1106Case No Appeal No. EAT/0521/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CONSIGNIA (FORMERLY THE POST OFFICE)APPELLANTMR R SEALYRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR B GIBBSMRS J M MATTHIASDate 11 June 2001
[1]APPEARANCES For the Appellant MISS LYDIA SEYMOUR (of Counsel) The Post Office Legal Services Dept Impact House 2 Edrige Road Croydon CR9 1PJ MR COMMISSIONER HOWELL QC Despite the spirited arguments presented to us this morning by Miss Seymour on behalf of the Applicant we have after quite a lot of deliberation concluded that we are not satisfied that there are sufficiently arguable points of law here to warrant our directing that this case should go forward to a Full Hearing of the Employment Appeal Tribunal.[2]The case before us is the Preliminary Hearing of an appeal by Consignia plc (formerly known as The Post Office) against the decision of the Employment Tribunal sitting at Watford on 16 January 2001 in which it was decided to admit for consideration under Section 111 of The Employment Rights Act 1996 a complaint of unfair dismissal presented to the Tribunal by Mr Russell Sealy on 10 October 2000, which was the date it was established to have arrived at the Tribunal centre. The complaint was of an unfair dismissal which had taken place on 9 July 2000 for Mr Sealy's alleged gross misconduct after a disciplinary hearing conducted by the employer. That complaint was resisted but part of the grounds on which it was resisted in the Respondent's notice of appearance dated 3 November 2000 was that the Originating Application having only been presented on 10 October 2000 was two days out of time since the normal time limit for presenting a complaint of unfair dismissal, for a dismissal which had taken place on 9 July 2000, would have been within the three month period commencing on 9 July, thus the proper time limit would have expired at midnight on 8 October 2000 which happened to be a Sunday.[3]The Tribunal having heard evidence from the Applicant, who was cross-examined on behalf of the Respondents at the hearing on 16 January as to why he had failed to get his application in earlier, determined in terms of Section 111 that it had not been reasonably practicable for him to have lodged his claim within due time in the circumstances and that it was reasonable to admit it two days out of time. I should have said that there had been a disciplinary appeal procedure going on at the same time as the time limit for presenting the complaint to the Tribunal had been running, and Mr Sealy had been taking advice, and that may have been one of the underlying reasons for his not having presented the complaint straight away after the dismissal to which he took exception.[4]The decision of the Tribunal was to accept the evidence of the Applicant that it had not been reasonably practicable for him to have presented the claim earlier than he had did in the circumstances. The Tribunal recorded specifically in their statement of Extended Reasons sent to the parties on 21 March 2001 of pages 5-7 of the appeal file before us that they found as a fact that his Application had been posted to the Tribunal on Friday 6 October, properly addressed and pre-paid by first class post. They further recorded as a finding of fact that when he posted it the Applicant had an expectation that it would be delivered the next day in the course of post and that that expectation was reasonable. That express finding appears to us to embody necessarily that the time of posting on Friday 6 October had been early enough to catch the delivery for the next day, the Saturday, in the normal course of post. I should also have said that Mr Sealy presented his Originating Application from an address in Pinner where he lives and that the Tribunal centre is in Watford, and although the exact distance between the two was not a matter in evidence before the Tribunal, it has been confirmed to us today that the two places are relatively near to one another, a distance of some eight miles in the northern outskirts of London.[5]The Tribunal's reasons for accepting that the Application had been presented in a way that enabled them to be satisfied it had not been reasonably practicable for it to have been presented earlier were summarised in paragraph 6 of their Extended Reasons as follows:
"We accept on the facts of this case that he had expected it to be delivered the next day, the 7 October. The Applicant worked himself in the post office and knew the procedures. The Respondents did not give any evidence in this case of the performance of the postal delivery service in the area at the time, nor of any factor or circumstance that should have alerted the Applicant to any different view. This expectation therefore was reasonable. It was suggested to him in cross-examination that he should not have left his application so late, but again his evidence as to his expectation was calm and clear and we accept that evidence. The reason why the application was not received within the time limits was the postal delay. This of course was something beyond the Applicant's control. Once he had posted the item he could do no more than rely on the postal service to perform in accordance with his reasonable expectation."
They concluded their statement by referring to the authorities of Beanstalk Shelving Ltd v Horn [1980] ICR 273 and Birmingham Midshires Bulding Society v Horton EAT 402/90 in paragraph 8 of their Extended Reasons, reaffirming that whether in a particular case it was not reasonable practicable to present a complaint in time must depend on the facts of the case; and held that on the above facts found in this case, it was not reasonably practicable for the Applicant to have presented his claim in time. They then added in a further paragraph to which Miss Seymour, who appeared on behalf of the Appellants, drew our attention:
"In this case, even if we had accepted that the Applicant could not reasonably have relied upon next day delivery of the application (in spite of evidence before us), there would still have been the possibility of Monday delivery. Though that would strictly have been out of time by one day, the practical reality would have been that nothing would have been lost by that and no party disadvantaged. Not to accept the claim might then be considered to prevent him from having access to the hearing of his claim as to his substantive rights for a purely procedural reason. In the event, in this case the delivery was beyond that and was late, in terms of the Applicant's expectation by two days. For those reason the claim should be considered and the matter listed for a substantive hearing."
[6]Against the decision embodied in those reasons the Appellants seek to bring an appeal to this Appeal Tribunal on grounds set out in their Notice of Appeal as amplified before us by Miss Seymour in her skeleton argument. I should say that the original grounds in the Notice of Appeal had been prepared at a time when the Appellants only had access to a document of (fairly full) Summary Reasons issued to the parties on 2 February 2001. These are at pages 7a-7c before us and to some extent contain observations which vary from the findings and conclusions expressed in the Extended Statement of Reason to which we have referred. One of the questions for us to consider is whether such variations as appear from comparison of those two documents give, as Miss Seymour submitted, a separate ground for sending forward this appeal on the basis that the totality of the Tribunal's explanation of its reasons is insufficiently clear for the Applicants to understand why the decision on the time limit has gone against them.[7]Miss Seymour made her submissions under a number of different heads. Before going through them we remind ourselves of the task before an Employment Tribunal when considering an application to have an Originating Application for unfair dismissal admitted outside the normal stipulated time limit. The test is two fold and is to be found in Section 111(2) of The Employment Rights Act 1996 which requires that:
" ….an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal- before the end of the period of three months beginning with the effective date of termination, or – within such further period 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."
It is well established by authority that Section 111(2)(b) embodies two questions for the Tribunal to determine. The first is a question of fact as to whether it was or was not reasonably practicable for the complaint to have been presented within the standard time limit of three months. The second is a separate question of reasonableness for the Tribunal as to whether it considers it reasonable to admit a claim out of time once that primary condition has been satisfied. It is also well established that in considering the first test the question of what is not reasonably practicable is given a broad application in this context and that in particular, in the context of this case, a person who has done all that could have reasonably been expected of him to secure delivery of his application in the normal course of post within the stipulated time limit will not be prejudiced by a postal delay. That has been a principle acknowledged by the Court of Appeal even though it might have been physically feasible for a complaint to have been presented at an earlier date or in some other way: - see Dedman v British Building & Engineering Appliances Ltd [1974] ICR53; Burton v Field Sons & Co Ltd [1977] ICR 106, 108G-109D.[8]In this case Miss Seymour's argument sought, as it had to, to attack the clear findings of fact embodied in the Tribunal's Extended Statement of Reasons as to the attempts the Applicant had made to effect delivery of his Application within the normal course of post within the stipulated time limit, which the Tribunal held at the end of the day to have satisfied the first factual test within Section 111(2). In particular she submitted, first, (going to the grounds in the original Notice of Appeal) that the Tribunal had erred in finding that the complaint could not with reasonable practicability have been presented on a Sunday in view of the Respondent's evidence that there had been a letter box at the Tribunal centre which would have been open even on a Sunday for documents to be posted through it, so that it would have been feasible to effect manual delivery and that the Applicant had never attempted to do this. That in our Judgment misunderstands the thrust of the authorities. The question for the Tribunal is whether, given that delivery by post is a permissible way of presenting a complaint, the Applicant who attempted to effect delivery by post had done what was reasonably expected of him to effect presentation in the ordinary course of post within the time limit. It is not in our Judgment material that other methods of delivery could have been chosen either in addition to or in substitution for the normal use of the post, any more than it is material that starting the whole process of presenting an Application to the Tribunal would have been feasible at an earlier date than in fact the Applicant in the particular case chose to attempt.[9]Secondly, it was submitted that the Tribunal had erred in making its finding that when the Application had been posted, as the Applicant gave evidence and the Tribunal accepted, on Friday 6 October, the Tribunal had erred in finding that it was outside the Applicant's reasonable expectation that the delivery might have been effected out of time because of the potential time it would take for documents to be delivered in the post. Miss Seymour submitted that by analogy with the practice direction applicable in the Queen's Bench Division since 1985 there should have been an automatic assumption that two days were required for delivery in the ordinary course of post and that the Applicant should not have the benefit of any assumption either on the basis of his own evidence or on the basis of the Tribunal's own common knowledge and assumption that a shorter delivery time would have been reasonable to expect. Further, she contended that the Tribunal had erred in not having made any more specific finding as to what the Applicant's actual subjective expectation as to the delivery time was.[10]On a fair reading of the Tribunal's findings to which we have referred we have not been satisfied that this does show them to have been arguably in error in law. We consider that their findings, on a fair reading, indicate that the Tribunal were satisfied on the balance of probabilities as a matter of fact that the Application in this case had been posted on Friday 6 October and as we have noted above, necessarily that would have implied from the form of their findings in their Extended Reasons that it had been posted on that day within time to catch the post on that day, to effect first day delivery the following morning at a distance of some only some eight miles from the place where it was posted. Secondly, it appears to us that the Tribunal's findings demonstrate that they were satisfied that the Appellant himself did reasonably expect this to achieve presentation within the time limit, an expectation which the Tribunal themselves felt reasonable and further in that context that the expectation of the arrival of the document at the Tribunal centre within the time limit on the Saturday was reasonable given the shortness of the distance from Pinner to Watford where the Tribunal centre was.[11]We have not been satisfied in this context that we should treat the express finding in the Tribunal's considered statement of Extended Reasons to which we have referred, that there was a reasonable assumption by the Applicant that next day delivery would be achieved, as undermined by what are undoubtedly the less clearly expressed findings in the initial summary statement issued on 2 February, which do appear to us also to have accepted (as an alternative ground for a finding of a reasonable expectation) that postal delivery could have been effected within the time limit by due delivery in the course of post on the Monday morning. The fact that that alternative assumption is plainly present within the statement of Summary Reasons does not in our Judgment invalidate the very clear and express findings and conclusions set out in the more considered Statement of Extended Reasons issued by the Tribunal on 21 March 2001.[12]Further it is apparent from the Chairman's notes of evidence which have been obtained pursuant to a direction given by the President of the EAT and now before us at pages 17-20 of the appeal file that there was evidence before the Tribunal which warranted the finding they made as to the reasonable expectation by the Applicant that presentation in time would have been achieved by posting on the Friday when he did. That appears from the first answer he gave when he was being cross-examined about alternative methods of delivery and what his expectations were which were in the terms recorded in the Chairman's notes as:
"…given first class letter should be delivered on 7 th if posted 6 th – its been within the time limit."
The existence of that evidence is not in our Judgment invalidated by a further answer he gave when being further questioned on the same issue which appeared to acknowledge the possibility of an alternative assumption that delivery might extend over two days rather than one.[13]Among the authorities to which Miss Seymour drew our attention was the decision of the EAT in St Basil's Centre v McCrossan [1991] IRLR 455 EAT where at paragraphs 16 and 17 the Appeal Tribunal referred to the Queen's Bench Practice Direction to the effect that to avoid uncertainties to the date of service in accordance with the then Supreme Court Rules, delivery in the ordinary course of post would be taken, subject to proof to the contrary, to have been effected, in the case of first class mail, on the second working day after posting. In that context the EAT said this:
"That gives some idea to what is thought to be a reasonable expectation, but if there is evidence to the contrary, in a particular situation, then it is upon the evidence rather than upon that general approach that Industrial Tribunals will of course be able to rely, and indeed should rely. We do not, by saying this, intend to bind Industrial Tribunals in any way, but seek to assist uniformity of approach to this problem which does seem to be arising with great frequency "
And in that case the Appeal Tribunal rejected the attempt to exclude the case from further consideration before the Industrial Tribunal by strict application of the time limit. Again it appears to us entirely consistent with what was said by the Employment Appeal Tribunal there that it should be a matter for the Employment Tribunal to consider on the evidence before it, the broad question of whether there was or was not in a particular case a reasonable expectation of delivery in the normal course of post within the time limit; and plainly this Tribunal has found in favour of the Applicant on that issue of fact.[14]The third heading in the Notice of Appeal was the contention that the Tribunal had erred in law in failing to make an express finding on when or where the Applicant had posted his Application on Friday 6 October. It appears to us necessarily implicit in the Tribunal's findings that it had been posted by him on Friday in time to effect delivery by post first class the next day and although it would, in our view, have been preferable if the Tribunal had recorded a more specific finding, we have been satisfied that the necessary findings of fact to justify the Tribunal's conclusion sufficiently appear from what they did there find; and that that finding of fact necessarily implicit in their conclusion that the posting was effected in time to effect first day delivery the following day is not unreasonable given the short distance that was involved.[15]Finally, by two additional points not in the original Notice of Appeal but argued before us by Miss Seymour today, it was contended first that the Tribunal had erred in failing to give sufficiently clear reasons for their decision in view of what was alleged to be conflict between the Statement of Extended Reasons and what had been said in the Summary Reasons issued earlier. As is apparent from what we have already said we have not been satisfied that a sufficient error of law is disclosed in this. The primary document for this Tribunal to consider is, and must always be, the Employment Tribunal's considered Statement of Extended Reasons for its decision and we do not think it right to infer against the Chairman in this case that the undoubted differences of expression and approach (or allowance of alternatives) referred to in the original Summary Statement of Reasons demonstrate that the more considered Extended Reasons were other than a true and full statement of the actual reasons which led this Tribunal to reach the decision it did. We say that on the assumption that Miss Seymour's submission that there were material inconsistencies was right, but we should also make clear that in any event we do not accept that what was said in the Summary Statement of Reasons as to the possible alternative delivery on Monday being sufficient was inconsistent with their primary finding that service in the normal course of post would have been effected in any case on the Saturday by way of first day delivery after posting within time on the Friday, which is what they expressly recorded in the Extended Statement of Reasons.[16]Finally, Miss Seymour sought to contend that the Tribunal had erred, again in paragraph 9 to which we have referred, in allowing questions of advantage and disadvantage between the parties, in particular the loss to the Applicant of his substantive rights, to be taken into account on the first question as to reasonable practicability which is the threshold question under Section 111(2) this she said was an improper approach which had wrongly infected their thinking and demonstrated that irrelevant matters had been taken into account on the first question. This submission was strengthened by Miss Seymour's reference to paragraph 7 of the Summary Statement of Reasons on page 7(b) where again the Tribunal referred to the question whether it made any substantive difference to the case whether the delivery had been effected on the Saturday or on the Monday.[17]Again we have not been satisfied that a sufficiently arguable misdirection is shown here. Having considered this, we are of the view that the Tribunal in these paragraphs appears to be addressing rather the second part of the question that has to be answered under Section 111(2)(b) in which, of course, the practical reality of the situation would be a proper matter to be taken into account in deciding whether it was reasonable for the Tribunal to admit the claim, albeit two days out of time. That is not to say that it is not preferable for Tribunals to separate out the two questions under Section 111(2)(b) more specifically than this Tribunal did in either of its two statements of reasons, but on balance we have not been satisfied that the failure to do this in more explicit terms amounts to an arguable error of law which would warrant us directing this case to go forward.[18]Finally we observe that both questions, the practicability question and the second reasonableness, are very much questions to be determined in these cases by the Employment Tribunal in exercising its jurisdiction under Section 111 and it is for that reason in particular that this Appeal Tribunal is slow to interfere with decisions taken by Employment Tribunal on questions on fact and degree such as practicability and reasonableness. We say that regardless of the identity of the Respondent in this particular case, where obviously Miss Seymour had a more difficult task perhaps than on behalf of some other Appellants in seeking to persuade us that the Tribunal's assumption that first day delivery was normally to be expected was an unreasonable and perverse one. It is on the much more general ground that this Appeal Tribunal will be slow to interfere as a general proposition with decisions of Employment Tribunals on such matters of fact and degree that we base our decision. For those reasons we unanimously now dismiss this appeal.