MR S M GIBSON v DAIRY CREST PLC (COUNTY DAIRIES) [2002] UKEAT 659_02_0811

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 659_02_0811

Case No Appeal No. EAT/659/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S M GIBSONAPPELLANT

DAIRY CREST PLC (COUNTY DAIRIES)RESPONDENT

Before

His Honour Judge J Altman Mr R N Straker Mr A D Tuffin

Date 8 November 2002

[1]APPEARANCES For the Appellant The Appellant in person HIS HONOUR JUDGE J ALTMAN This is an appeal from the Decision of the Employment Tribunal held at Reading on 21 May 2002 when the Chairman, sitting alone, dismissed the Appellant's claims under the Disability Discrimination Act and the Sex Discrimination Act and in respect of a claim for unfair dismissal. The matter comes before us by way of preliminary hearing to decide if there is a point of law capable of being argued in full before the Employment Appeal Tribunal.

[2]The claim under the Disability Discrimination Act related to events that took place some years before that Act came into effect, and for that reason no remedy could be found for the Applicant under that Act which did not apply at the time of the relevant events of which he was complaining. Accordingly, the complaints were dismissed and Mr Gibson does not today seek to overturn that Decision.

[3]So far as the claim in relation to sex discrimination is concerned, it is the finding of the Tribunal that the events in relation to which Mr Gibson complained, on the finding of the Tribunal in any case, would have been out of time, and again Mr Gibson does not seek to appeal against that. However, he does wish, and would have wished, to claim that his dismissal was unfair. The Tribunal Chairman had dismissed that claim first of all because it was out of time, and he declined to exercise his discretion to extend time, and secondly, he found that it had no reasonable prospect of success and was therefore misconceived.

[4]We have looked at the body of the Decision set out in the Extended Reasons and whilst the Chairman does, in some detail, deal with the issue as to the time limit, he did not address or give any reasons to expand upon his decision that there was no reasonable prospect of success in the unfair dismissal claim even if time were abridged. We would therefore have been sympathetic to an appeal based on that ground. However, it would make no difference unless Mr Gibson were also successful in showing that time could be extended or should be extended to bring the complaint of unfair dismissal in the first place; and that essentially, quite properly if we may say so, is the ground that Mr Gibson has raised before us.

[5]Following the Decision before the Employment Tribunal Mr Gibson wrote to the President of the Employment Appeal Tribunal complaining of the way in which the Chairman conducted himself. He gave some detailed complaints about various aspects of it, and the response was received by the Chairman. We understand from Mr Gibson that that is not a basic ground of appeal that he wishes to raise. As he put it before us, the way in which the Chairman behaved was a matter for the Chairman and Mr Gibson only explained his criticisms because on the appeal he was effectively, he felt, having read the Practice Direction, invited to raise any criticisms that he had. We hope we are putting what he is saying, although in our own words, correctly. In any event, without the need to go into them, and having read the allegations, we would not have been satisfied that there was evidence of those aspects that could be sufficiently established to cast any doubt upon the final Decision of the Employment Tribunal.

[6]So I turn now to the essence of the submissions that had been made before us in relation to the time limit. In November 1991 at a time when he was employed by the Respondents, the Appellant was the victim of a very serious road traffic accident which caused him considerable and permanent injury; he has not worked since. He had begun work in 1988 as a laboratory supervisor/senior laboratory technician, and following his accident, he was dismissed on 7 August 1992. We have had an opportunity of seeing the documentation that preceded the dismissal at page 109 of our bundle. On 28 July 1992, when Mr Gibson had been away for about eight months from work, a letter was written to the Applicant, expressing concern that he had not contacted the Respondents. They wished to review his future employment and to obtain medical advice. He was asked to give, within seven days, his response or at least to contact the Respondents. The letter stated that, if without good reason there was no contact within seven days, his employment would be terminated.

[7]In the Notice of Appearance to the Tribunal, the Respondents gave as the reason for terminating employment "absenteeism", which Mr Gibson points out does not lie particularly comfortably with that letter that was written in July 1992. Mr Gibson says that the reason why up until that time and until recently he was not able to bring proceedings before the Tribunal, and before that was not able to contact his employers, is that he was suffering the effects of the road traffic accident. He has suffered the most awful disability since, for which he bears no responsibility whatsoever, but it does affect considerably his mental capacity at substantial times. As a result, he has been compulsorily detained in hospital on some seven periods of time, although 1999 was the last occasion. We have seen the Review Tribunal's decision in October 1999, in response, we assume it is in response, to the Applicant's appeal in relation to his detention in hospital. We have noted the diagnosis set out there. We can understand the debilitating effect that such a condition must bring, and the lack of assistance that would be available for the bringing of an application before the Employment Tribunal; but the question that we cannot go beyond in the Employment Appeal Tribunal, is to ask ourselves the question "Is there an arguable point of law which could lead to overturning the finding of the Tribunal Chairman?"

[8]The Extended Reasons point out that it was not the function of the Tribunal to consider the issues relating to the termination of the Applicant's employment which would only be looked at once the time limit hurdle was overcome, and, although we have been given some glimpse in this judgment of some of the serious issues that Mr Gibson would raise if he had the chance, nonetheless, we have had to put that to one side also.

[9]In paragraph 4, the Chairman sets out the argument put forward by the Applicant as to why it was not reasonably practicable for him to make the complaint within the three month period. That is because of the direct effects of the accident, first of all upon his actual mental functioning and, secondly, because the effect of that mental functioning was that he was "sectioned" for substantial periods and so was not in a position to do anything. Also, thirdly, one of the reasons was that medication made it difficult.

[10]The Originating Application should have been presented by 6 November 1992; it was therefore nine and a half years out of time. The Employment Tribunal Chairman made the following finding:

"From 10 August 1992 the applicant had all the information to present his claim. He was at that time instructing solicitors in respect of his personal injury claim and could have made enquiries of them regarding his dismissal. The applicant had not discharged the burden of proof on him on the balance of probabilities and if the Tribunal was against him on his argument that it was reasonably practicable to have presented the claim, the time spent thereafter of 9 ½ years is clearly outside such further period as was reasonable."

Having dealt with the statutory claims in relation to disability and sex discrimination, in paragraph 11, having quoted section 111 of the Employment Rights Act 1996 in the previous paragraph, the Chairman found that it was reasonably practicable for the complaint to have been presented within the three months following the Applicant's dismissal.

[11]Reference was made to the fact that solicitors were pursuing Mr Gibson's personal injury claim, and could have dealt with the matter and the Tribunal Chairman took into account the capacity to appeal which the Applicant had. The Applicant would say, first in relation to his solicitors, that they were not really acting on his instructions, having been appointed by the RAC for other matters, and were not representing him fully on this, and secondly, that when he appeals under the Mental Health Act , he had very considerable support and encouragement within the hospital to do it.

[12]Those are matters of judgment and opinion, but it seems to us that the Employment Tribunal Chairman, on considering the facts, was entitled to look at those issues and form a judgment about them. Different Tribunal Chairmen may come to different conclusions, but in coming to a conclusion that was adverse to the Applicant on those matters, we cannot find that the Chairman had made an error of law; it is simply that the Applicant disagrees with his conclusions.

[13]Furthermore, even if the Chairman had found that it was reasonably practicable to present the complaint within the three-month period, he would not have extended the period so as to validate this application because it cannot be described, as it must do if it is to succeed under the Employment Rights Act 1996 , as such further period as is reasonable or as the Tribunal considers reasonable. The Chairman considered that the further period was not reasonable; although he had pointed out that the Court of Protection was not an impediment, whereas we have some doubt as to whether the Court of Protection could have been relied upon to espouse the Applicant's interests to such an extent as to take the initiative.

[14]In all the circumstances, therefore, we have come to the conclusion that there is no arguable error of law on the face of the Tribunal's decision. On the facts before the Tribunal, the Chairman was entitled to conclude that it was reasonably practicable to bring a complaint within three months, and even if he were wrong about that, that he did not consider it reasonable to extend the time. He also referred to the evidential difficulties that inevitably confront a respondent after such a long period of time. We recognise that even though a lot of the material is in writing, witnesses would have to come to try to explain letters that they had written many years before, if the complaint was to be heard.

[15]We do understand that Mr Gibson disagrees with the conclusion of the Chairman, but from our point of view, we can find no arguable error of law whatsoever. Accordingly, this appeal must be dismissed at this stage.

[16]During the course of the judgment, the Applicant withdrew from this Tribunal. We can well understand that it must be disappointing when, as a result of an accident for which he was not responsible, he has been, in his own view, unable to pursue his claim, but his departure had no bearing on this judgment, and it seemed to us best to proceed to its conclusion.

[17]Following the hearing Mr Gibson kindly wrote and apologised for leaving. There was no need for him to apologise for we do understand both the stress and disappointment to him of these proceedings.