BASS TAVERNS LTD T/A BASS LEISURE RETAIL v MISS C J HUGHES [2001] UKEAT 1312_00_0802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1312_00_0802Case No Appeal No. EAT/1312/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BASS TAVERNS LTD T/A BASS LEISURE RETAILAPPELLANTMISS C J HUGHESRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR J HOUGHAM CBEMRS M T PROSSERDate 8 February 2001
[1]APPEARANCES For the Appellant MR N PORTER (of Counsel) Instructed By: Messrs Andersons Solicitors 42 The Ropewalk Nottingham NG1 5EJ MR COMMISSIONER HOWELL QC : In this appeal which is before us today for preliminary hearing Bass taverns Ltd t/a Bass Leisure seeks to have set aside a decision of the London South Employment Tribunal contained in Extended Reasons sent to the parties on 8 September 2000 and set out at pages 6 to 8 of the appeal file before us.[2]The only issue dealt with by the Tribunal's decision on that date was whether a claim for unfair dismissal and alleged unlawful non-payment of wages coupled with a claim for discrimination on the ground of pregnancy and sex was within the Tribunal's jurisdiction to hear, in the circumstances that the effective date of termination of the Applicant's employment with Bass Taverns had been on 2 November 1999 and the Originating Application was not presented until 20 March 2000: see pages 9 and 10 to 12 of the appeal file.[3]The Tribunal, as recorded in the statement of Extended Reasons by its Chairman, Mr Crawford, decided that it had not been reasonably practicable for the Applicant to present her claim within the statutory time limit and that it accordingly had jurisdiction to proceed with the case.[4]The reasoning that appears to have led the Tribunal to that conclusion is set out in paragraph 8 in particular of the Extended Reasons as follows:
"While we acknowledged that Miss Hughes [the Applicant] was alerted to the fact that she should file an application with the Tribunal, on at least three occasions prior to the 1 February 2000, we find that in the pregnant state in which she was at the time, it was reasonable for her to file the application on the 20 March 2000. Accordingly , [sic: our emphasis] it was not reasonably practicable for her to present her claim for unfair dismissal, non-payment of wages and sex discrimination on the grounds of her pregnancy, within the statutory time limit."
[5]It appears to us that the Appellant's grounds of appeal against that decision raise arguable issues which should be considered by the Appeal Tribunal at a full hearing which we accordingly direct. In particular, we consider it quite strongly arguable that the Tribunal's own formulation of their conclusion, in the paragraph we have quoted, shows that they have misdirected themselves on the condition as to practicability that has to be satisfied under Section 111 Employment Rights Act 1996, before it can be proper for a Tribunal to accept jurisdiction.[6]Accordingly, we direct that this case should go forward for a full hearing of the Employment Appeal Tribunal, listing Category C with a time estimate of half a day and that the parties should exchange skeleton arguments and lodge them with the Employment Appeal Tribunal office, not later than 14 days before the date fixed for the full hearing of the appeal.[7]We further direct, in view of Mr Porter's submissions to us that there may have been an incorrect conclusion of the Tribunal having regard to certain evidence placed before them (a submission which is set out in his skeleton argument before us, but which is not necessary to go into further at this stage) that the Chairman should be asked to provide his Notes of Evidence, including any cross-examination or re-examination of the Applicant, Miss Hughes, on the question of the extent to which she was advised to avoid stressful activities over the period in question which was 2 November 1999 to 20 March 2000, and the evidence about the other activities she actually carried on during that period.