MR R P NAYLER v NHS INFORMATION AUTHORITY [2002] UKEAT 886_01_2101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 886_01_2101

Case No Appeal No. EAT/886/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR R P NAYLERAPPELLANT

NHS INFORMATION AUTHORITYRESPONDENT

Before

Mr Justice Lindsay

Date 21 January 2002

[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE LINDSAY (PRESIDENT) We have before us as a preliminary hearing the appeal of Mr R P Nayler in the matter Nayler -v- NHS Information Authority . It is an appeal against the Decision by the Employment Tribunal Chairman at Exeter not to review an earlier Decision which that body had made. Today Mr Nayler appears in person.

[2]The chronology is that on 16 February 2001 Mr Nayler lodged an IT1 for unfair dismissal. He said that he had been dismissed by the Respondent, NHS Information Authority, on 12 August 1996. He said:

"On the 17 th April 1996 I was called out of a training session and told that my employer wished to make me redundant. This was quite unexpected but, since they appeared to offer what seemed generous compensation and there was no sign of the bullying problem being directly addressed, after some clarification of the terms I accepted the situation and left in August 1996."

That is only part of a long explanation given by Mr Nayler, but it is a part of it. On 7 March the Respondent Authority put in an IT3. It began by saying:

"The Application is out of time, the employment having ended on 12 August 1996, and the Respondent applies for it to be struck out. The Respondent contends that it was reasonably practicable for the Applicant to have presented his claim some years earlier than it was in fact presented."

And the Respondent Authority wrote asking for a pre-hearing review to deal with this preliminary point.

[3]On 9 April 2001 there was a hearing at the Employment Tribunal at Exeter, under the chairmanship of Mr J G Hollow, and on 12 April the Decision was sent to the parties. The Decision was that day entered on the Register. The Decision was:

"The unanimous decision of the Tribunal is that the application was presented out of time. It would have been reasonably practicable for the application to have been presented within time. The application is dismissed."

In the course of their Extended Reasons the Employment Tribunal cite section 111 of the Employment Rights Act 1996 . In paragraph 1 they say:

"S.111 states that an application to the Tribunal must be presented within a prescribed period. It says that a Tribunal:"

And then they quote sub-section (2):

"(2) 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 the period of three months."

A little later they say:

" The 3 month period for presentation of the application would have expired on 11 November 1996. The application is roughly 4 ¼ years beyond the expiry of the limitation period. Then in their paragraph 5 they say: "5 The applicant accepted the offer and his employment terminated on 12 August 3 1996. He immediately applied for unemployment benefit but on the 17 April 1997. He was notified by the Benefits Agency that his claim had been refused. He subsequently appealed and it has taken a very long time of the order of 4 years for the matter to be resolved, if indeed it has been resolved"

Then, in paragraph 7, they say this, of Mr Nayler's dealings with the respondent Authority:

"It is clear that he signed the letter of offer to accept the terms which were put forward. At that stage we are satisfied that the position so far as unemployment benefit was concerned was not clear but the problem had been identified. It is difficult to see in these circumstances although we make no direct finding on the matter, how it could be said that the applicant had been dismissed, bearing in mind the definition of that term within s.95 of the Act. However, the applicant knew by 17 April 1997 that his claim for unemployment benefit had been rejected. That was 9 months after he had left, but it seems to us that if ever there was a time at which he should have made his application to the Tribunal, that was it. He would have been faced with the argument that his application was then some 6 months out of date instead of some 4 ¼ years. The difficulty he faced at that stage might not have been anything like as great as they are now"

And then finally of the quotations from the Decision of 12 April, they say this:

"8 It is difficult to see how it could be said that the respondent mislead the applicant. At the time his employment came to an end there was uncertainty as to his entitlement to Unemployment Benefit -a benefit which was never in the gift of the respondent. Apart from the fact that his claim for benefit was rejected on 17 April 1997, there has been no significant change in the circumstances. All material facts were known to the applicant and had he felt that he had been unfairly dismissed we can see nothing which would have constituted an impediment to presenting his claim within time. On that basis his claim must fail at this stage. Were it not to do so, it seems to us that the refusal of his claim in April 1997 would have been the time to have presented the application if it had not been presented earlier."

[4]So that was the Decision of 12 April. Now the time for applying for a review is fourteen days from the entry of a Decision into the Register. That Decision of 12 April was entered in the Register on 12 April, and so the fourteen days ran out on the late evening of 25 April. However, it was not until 30 April that Mr Nayler applied to the Employment Tribunal for a review, so it was plainly an out of time application.

[5]On 4 August the National Health Service Information Service indicated it resisted any application for review of 12 April on the ground that it was out of time and then, on 12 June, there comes the Decision with which we are concerned with. It was a Decision of the Chairman alone and he rejected the application for a review of the Decision of 12 April. As it is a short Decision it might be best to read the whole thing. It is headed "Outcome of Request for Review" It is a Decision of the Chairman Mr J G Hollow; he says:

"In exercise of the powers conferred on me by Rule 11(5) of the Rules of Procedure set out in the Schedule to the Employment Tribunals Rules of Procedure 1993 I hereby refuse the application for a review made by the applicant in its letter dated 30 April 2001 since such application was made out of time and has no reasonable prospect of success for the reasons set out below."

And then there is the heading "Reasons":

"1 The application for a review is out of time. I do not regard the applicant's explanation as satisfactory. The reasons were sent on 12 April 2001. The applicant had been away but was home by 18 April. He still had plenty of time to put the request in. 2 It has no reasonable prospect of success. A review is not an opportunity to reargue the case simply because the applicant is unhappy with the outcome."

And then he says:

"In my view the fact that the applicant's claim for benefit is to be reconsidered by the Benefits Agency is most unlikely to change the position."

That is the Order which is appealed against, but, to go on with the chronology, on 20 June 2001 Mr Nayler applied afresh for a review. On 22 June the Employment Tribunal rejected the application for a review under Rule 11(5). On 19 July a Notice of Appeal was lodged at the Employment Appeal Tribunal and it is directed only to the rejection of the application to review the Decision of 12 June.

[6]We are not concerned, in this particular hearing, with any appeal against the Decision of 12 April, nor with the Decision on the re-application for review. We are concerned only with the Decision of 12 June. An appeal against the Order of 12 June needed to be presented within forty two days of 12 June which, indeed, it was, but what Mr Nayler has to show is some arguable error of law in that brief Decision of 12 June, the whole of which we have read.

[7]So far as concerns the out of time aspect of the application for review, the merits of the case form only a small part generally; they are little more than background, but the second heading - "it has no reasonable prospect of success" brings them a little more into the foreground. That requires a brief consideration of the reasonable practicability test of section 111, because that was what was in issue in the Decision of 12 April. That reasonable practicability test does not give anything like the wide margin which is permitted to Employment Tribunals in, for example, the just and equitable test which is relative to claims, for example, for sex discrimination or race discrimination. If it was reasonably practicable for the IT1 to have been permitted to have been presented during the prescribed period then there is no discretion in the Tribunal to allow itself to receive the Employment Tribunal application. So the question that is in play is the reasonable practicability of the presentation of an IT1 before 11 November 1996. If there was such a reasonable practicability within that period, there is no discretion to receive the IT1 at all, but if reasonable practicability before 11 November 1996 is shown in a negative sense - that there was no reasonable practicability in the period - then the Tribunal has to consider what would be a reasonable further period for the lodging of an IT1.

[8]In this area, Mr Nayler puts in a Skeleton Argument and he says:

" My employer agreed to pay a monthly amount as compensation. I accepted the offer and on leaving their employment I applied for Unemployment Benefit in August 1996 The Benefits Agency argued that what I received was an occupational pension and since I was over 55 the amount received should be set against benefit, in effect no Unemployment Benefit would be paid. I appealed against the decision of the Benefits Agency on the grounds that what I received was Compensation not an Occupational Pension. An Employment Tribunal held in April 1997 supported the Benefits Agency."

[9]Now it may be that Mr Nayler has not found that his leaving the NHS has had the financial consequences which he thought it would have. It may even be, this is perhaps the way he would put it, that it has not had the financial consequences which the employer had said that it would have, but that does not reflect on either whether he was actually dismissed, nor whether he could feasibly have lodged an IT1 either within the prescribed three month period after he left the employ, or whether there were unreasonable delays thereafter.

[10]It may be this is not a thing we need to rule upon, and certainly do not rule upon, but it may be that he feels that he has claims in contract against the NHS; or claims of having been deceived by the NHS, that is nothing to do with us, but it does seem that at the very latest, by April 1997, his expectations had been dashed. The Employment Tribunal took that view and it seems to us it is one that cannot be said to be unfounded. If ever it was appropriate for Mr Nayler to have issued an IT1, well then, surely it was reasonably practicable for him so to do then, if special circumstances were not shown, and no special circumstances indicating that it was not then reasonably practicable to lodge an IT1, appeared to the Employment Tribunal. Accordingly, when the Tribunal Chairman said, in the Decision under appeal before us, that the underlying Decision sought to be appealed against (that of 12 April) was such that Mr Nayler had no reasonable prospect of success, we see force in that conclusion. Equally, if one regards the expression: "it has no reasonable prospect of success" simply to be limited to the application for a review, again, it would seem to us to be well founded.

[11]Looking at the merits behind Mr Nayler's case therefore, as it seems to us, does not assist him at all. Simply asking the question whether there is an arguable error of law emerging, as we see it, from the Decision of 12 June, we are quite unable to find any error of law in that brief Decision. Accordingly, we must dismiss the appeal, even at this preliminary stage.