MR A A CURTIS v BARCLAYS BANK PLC [2002] UKEAT 1438_01_2806

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1438_01_2806

Case No Appeal No. EAT/1438/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A A CURTISAPPELLANT

BARCLAYS BANK PLCRESPONDENT

Before

Mr Justice Maurice Kay Ms G Mills Miss D Whittingham

Date 28 June 2002

[1]APPEARANCES For the Appellant MR CURTIS (The Appellant in person) THE HONOURABLE MR JUSTICE MAURICE KAY This appeal is listed before us today as a Preliminary Hearing. By it, Mr Curtis seeks to challenge the finding of an Employment Tribunal sitting at London Central on 5 October 2001. On that occasion the Employment Tribunal held, on a preliminary issue, that it had no jurisdiction to consider a complaint of unfair dismissal as the complaint was not submitted within the relevant time limit. The application was accordingly dismissed.

[2]Mr Curtis was an employee of Barclays Bank. He worked for Barclays from 25 September 1978 until 11 August 2000. That was the effective date of the termination of his employment. He had been given six months notice which expired on that date. His application to the Employment Tribunal was not made until 7 August 2001. It was in those circumstances that the matter was listed in the Employment Tribunal as a preliminary issue on jurisdiction.

[3]The hearing before the Employment Tribunal investigated the historic circumstances which had resulted in the delay of almost exactly one year between the effective date of termination and the presentation of the complaint in the Employment Tribunal. The Employment Tribunal observed in its Extended Reasons that there had been a series of very unfortunate circumstances which considerably affected Mr Curtis. We set out now what the Employment Tribunal found. It said:

"His own health had not been good prior to his dismissal. He had had two seizures whilst at work and was undergoing investigation for the possible causes. The serious nature of this was indicated by the possible diagnoses which the Applicant was given as epilepsy, CJD or a brain tumour, and, this was obviously a very upsetting and uncertain time for the Applicant. He was and still is on medication. In addition, his mother, with whom the Applicant lives, had had a heart attack in July 2000 and the Applicant was taken up in looking after and making arrangements for her care. Later, in August 2000, the Applicant's brother, who lived in France, had a very serious stroke and the Applicant had to go to France to make arrangements for his care and his return to the UK. He visited France on a number of occasions in September and October 2000. The Applicant also had to deal with his own personal affairs arising out of the ending of his employment, dealing with his pension, his mortgage and financial matters generally which arose as a result of having lost his job. In addition, he was seeking alternative employment and obtained a full-time position on 4 September 2000, where he worked until 21 May 2001. Then again visited France for a period and started a new, full-time position on 11 June 2001. In addition to all these matters, the Applicant was also dealing with the Benefits Agency on his own behalf in relation to a Jobseeker's Allowance appeal and his mother's Disability Living Allowance and Income Support appeals, as well as dealing with his mother's council tax and obtaining a disabled driver's badge for her. It was clear that the Applicant had a lot to deal with at this time and that it was a difficult and stressful time for him. He did not seek advice about his employment rights and says that he did not know of the three-month time limit which applied in relation to submitting a claim of unfair dismissal to an Employment Tribunal. It was not until July 2001 that he saw an article in the Evening Standard newspaper which indicated that there was a time limit of three months. He contacted the Employment Tribunal at that time for an application form and submitted an application which was received by the Employment Tribunal on 7 August 2001. The three-month time limit applicable to claims of unfair dismissal had expired on 10 November 2000."

Those were the findings of fact made by the Employment Tribunal.

[4]In relation to the indisposition of Mr Curtis' brother in France, it seems that the findings of fact were somewhat in error because the brother's presence in France arose in the course of a holiday rather than in the course of residence there. We should add that we have been told by Mr Curtis today that the diagnostic difficulties in relation to his own health were later resolved and that he has been diagnosed as having a brain tumour which, we are pleased to be told, is presently under control.

[5]By Section 111(2) of the Employment Rights Act 1996 an Employment Tribunal has no jurisdiction to consider a complaint of unfair dismissal:

"… 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."

The Employment Tribunal expressly referred to the provisions of Section 111(2) and also to the authorities of Walls Meat Co Ltd v Khan

[1978] IRLR 499

and Palmer and Saunders v Southend Borough Council [1984] 1 All ER (CA). The Employment Tribunal also expressly referred to the test of reasonable practicability being synonymous with reasonable feasibility. The Employment Tribunal then proceeded to apply the law to the circumstances that it found to exist. Its decision was in the following terms:

"The Tribunal considers that it was reasonably feasible for the claim to have been submitted. There was no physical impediment to the Applicant submitting a claim. He knew of the factual basis for his claim for unfair dismissal and chose not to seek advice within the three months. The Applicant is clearly a professional and intelligent man and was ably dealing with a number of other family and personal matters at this time. He was able to handle both his own and his mother's Social Security Tribunal claims; obtained full-time work and coped with the other family difficulties which arose. Whilst the Tribunal have considerable sympathy for the Applicant in the difficult circumstances in which he found himself, they cannot allow this application to proceed purely on compassionate grounds. The legal test which is to be applied is whether it was reasonably practicable for the Applicant to have submitted the claim within the three-month time limit. For the reasons set out above, the Tribunal considers that it was reasonably practicable for the claim to have been submitted within three months and therefore the claim fails."

[6]Before us today, Mr Curtis has represented himself with appropriate courtesy and economy. Like the Employment Tribunal we find ourselves sympathetically disposed to Mr Curtis in the sense that he clearly feels a sense of grievance about the termination of his employment after a long period of time with Barclays Bank and he has had numerous personal and family difficulties with which to deal. However, our natural feelings of sympathy are not in themselves a basis for interfering with the decision of the Employment Tribunal. We can only consider errors of law. The law in this case is very straightforward. The three month time limit must be observed unless an Employment Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. In a case where it is satisfied that it was not reasonably practicable then it can extend time to the extent that it considers reasonable in the circumstances of the case. The threshold precondition for that is a finding that it was not reasonably practicable for the complaint to be presented within the three month period.

[7]In our judgment the Employment Tribunal was entitled, and indeed correct, to conclude that upon the evidence before it, it had been reasonably practicable for Mr Curtis to present his complaint within that three month period. Mr Curtis has made submissions about his physical and mental condition at the time and, of course, about all the matters that were besetting him. He has submitted, in effect, that it was simply impossible for him to present this application during that three month period. It seems to us, however, that having regard to all the circumstances as found by the Employment Tribunal, it cannot be said to have been impossible. It was, in our judgment, as in the judgment of the Employment Tribunal, reasonably practicable for proceedings to have been started within that three month period, having regard in particular to the sort of tasks with which, on the evidence, Mr Curtis was coping at the time.

[8]As we have said, we have much sympathy with Mr Curtis. That is not to be taken as any acceptance by us that his claim, if started in time, would have succeeded. We simply cannot know whether it would or it would not. Our sympathy arises out of the series of misfortunes that have befallen Mr Curtis and his family. Whilst we extend him that sympathy, we cannot find any error of law which could sustain an arguable appeal here. In those circumstances it is our duty to dismiss his appeal. We have had full regard to the various matters raised by him in his Notice of Appeal and in all the subsequent documentation which he has lodged with the Tribunal. The appeal is dismissed.