MR D MUSA v ABBOT SECURITY LTD [2001] UKEAT 1337_00_1503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1337_00_1503Case No Appeal No. EAT/1337/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D MUSAAPPELLANTABBOT SECURITY LTDRESPONDENT
Before
Lord Davies of CoityDate 15 March 2001
[1]APPEARANCES For the Appellant The Appellant in person MISS RECORDER SLADE QC This is the preliminary hearing of an appeal by Mr Musa against the decision of an Employment Tribunal which concluded that it had no jurisdiction to consider his complaints of unfair dismissal or of race discrimination.[2]The reason why the Tribunal considered it had no jurisdiction to consider those complaints is that they were presented out of time. It considered that it was reasonably practicable to present the unfair dismissal complaint within time. So far as the race discrimination claim is concerned, the Tribunal considered that it would not be just and equitable to extend time for presentation of the complaints.[3]The relevant facts were found by the Tribunal to be these: that on 22 June 2000, two Originating Applications were received by the Employment Tribunal office. One was dated 27 March 2000 and the second was dated 20 June 2000. Both Originating Applications showed the date of termination of employment to be 14 February 2000. It was therefore apparent that on their face, both applications had been presented more than three months after, in the one case the effective date of termination, in the other, the date of the alleged of race discrimination.[4]The Tribunal listed the case for a preliminary hearing to consider the time limit issue. At that preliminary hearing, the Applicant, the Appellant before us, gave evidence that he sent in the application dated 27 March by second class post to the Tribunal and that he had received the originating application form from the Benefits Office, when he sought to claim benefit. He was aware that there was a three month time limit. He heard nothing from the Tribunal after he posted his form. However, when he received advice from a friend, he checked what had happened to his claim, and was told by the Tribunal in mid-June that the Originating Application had not been received. He was told that he should submit a copy, and he therefore did that.[5]The Tribunal considered the relevant statutory provisions, The provision dealing with the time limit for the complaint for unfair dismissal is contained in the Employment Rights Act 1996 section 111 (2) which provides:
"(2) Subject to subsection (3) an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal - (a) before the end of the period of three months beginning with the effective date of termination, or b) 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."
[6]So far as the complaint of race discrimination is concerned, section 68 of the Race Relations Act 1976 provides:
"An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of - (a) the period of three months beginning when the act complained of was done;"
By section 68 (6):
"(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time, if, in all the circumstances of the case, it considers that it is just and equitable to do so."
[7]The Tribunal first considered the question of whether the unfair dismissal complaint was in time. It was satisfied that as the Appellant had been in the position to present a complaint by second class post, on or about 27 March, it had been reasonably practicable for him to present the complaint within time. The Tribunal record that the Appellant had not pursued the matter further until more than three months had elapsed since the date of termination of his employment. The Appellant was aware of the date of termination of employment being the time from which the three months ran, and the Tribunal concluded that he had not made any reasonable efforts to follow up what had happened to his complaint. The Tribunal concluded that it had no jurisdiction to consider that part of his claim as it had been reasonably practicable for him to present his complaint of unfair dismissal in time.[8]The Tribunal then turned to consider whether it should extend the time limit for presentation of the race discrimination complaint. It considered that the same factors that applied to the unfair dismissal complaint applied to that complaint. In addition it considered additional factors, such as the efforts the Appellant made to obtain advice about his complaint, and the likelihood of success of his complaint. Taking all of those factors into account, the Tribunal considered that it was not just and equitable to extend time.[9]Mr Musa has relied upon the fact that the original letter of termination which he was given referred to "the possibility of an appeal against dismissal". He told us that he pursued an appeal by writing to his employers, but heard nothing further. He took the position, and still maintains the position that the letter dismissing him was invalid and not effective to terminate his employment.[10]When invited to explain his contention that the Tribunal erred in law in its decisions, Mr Musa relies upon the alleged invalidity of the notice of dismissal. He also repeats what he must have told the Tribunal, that he had sent the application by second class post, and that he did not pursue the matter further, by checking its safe arrival because of his view of the validity of the dismissal letter. Then, in the circumstances recorded by the Tribunal, he did eventually make a check as to whether the application had been received.[11]Turning first to whether it can be said that the Tribunal erred in law or came to a perverse conclusion in holding that it was reasonably practicable for the Applicant to present his Originating Application within the three months time limit, we have considered and have summarised for Mr Musa, the effect of the observation in the case of Capital Foods Retail Ltd v Corrigan [1993] IRLA 430 in which Lord Coulsfield in the Employment Appeal Tribunal in Scotland in considering a case in which an application had been posted but had not been received by an Employment Tribunal said this, at page 431, paragraph 6:
"In the present case it can be accepted that, initially, there was an impediment to the presentation of the complaint, namely the unexplained failure of the letter dated 25 March 1992 to reach the Central Office of Industrial Tribunals. The existence, however, of that impediment is not sufficient to satisfy the test of s 67(2) unless the applicant or her advisers, have taken all the steps they should reasonably have taken, in the circumstances, to see that the application was timeously presented. In the present case, that seems to us to depend upon whether the applicant's solicitors took all the steps that reasonably should have been taken to confirm that the application had been duly received."
Although in the Corrigan case, the Applicant had solicitors, nonetheless the comments made in the Employment Appeal Tribunal expressly applied also to the Applicant. It seems to us that it cannot be perverse or said to be in error of law for the Employment Tribunal, in the instant case, to consider that the Applicant had not made any reasonable efforts, following the alleged posting of his Originating Application, to check that the Originating Application had been safely received.[12]In the circumstances, on the material before the Employment Tribunal, we consider that it is not arguable that the Tribunal erred in law or acted perversely in concluding that the Appellant had not established that it was not reasonably practicable for him to present the complaint within the three months time limit. Accordingly, the appeal against the dismissal of the complaint of unfair dismissal is, dismissed.[13]Turning now to the appeal relating to the race discrimination Act claim. The Tribunal correctly directed themselves to the relevant circumstances and the test for extension of time, namely whether it would be just and equitable to extend time. The Tribunal cannot be said to have erred in law in its approach to the question, nor can it on the findings made by it, be said to have reached a perverse conclusion. Accordingly, the appeal against the dismissal of the complaint of race discrimination is also dismissed.