MR O M NEWELL v TESCO STORES LTD [2002] UKEAT 945_01_1801

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 945_01_1801Case No Appeal No. EAT/945/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O M NEWELLAPPELLANTTESCO STORES LTDRESPONDENT
Before
Mr Recorder BurkeDate 18 January 2002
[1]APPEARANCES For the Appellant MR MENZIES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER BURKE QC : This is the preliminary hearing of Mr Newell's appeal against the decision of the Employment Tribunal sitting at Reading, chaired by Mr Soulsby, and promulgated with extended reasons on 6 July 2001. By that decision the tribunal dismissed Mr Newell's claim that he had been unfairly dismissed by his employers on the grounds that his application had been presented out of time.[2]The history can be shortly stated for present purposes. Mr Newell was employed from 1988 latterly as a Branch or Training Manager. In circumstances which is unnecessary now to deal with, he fell out with the employers. By a letter of 23 October 2000 he terminated his employment and claimed that, as a result of the employer's behaviour towards him, his position had been made intolerable and he had been constructively dismissed. He posted that letter on 25 October and, as the tribunal found, it reached the employers on 26 October.[3]On 5 February, the following year, he presented his unfair dismissal claim. The Respondents took the point that the presentation of his claim was outside the three months' time limit set out in section 111(2)(a) of the Employment Rights Act 1996, on the basis that the effective date of the termination of his employment, from which date the three month primary limitation period arose, was at the latest 26 October of the previous year, the date of their receipt of the letter.[4]There were two issues before the tribunal. The first was what was the effective date of termination? That was resolved by the tribunal's decision that the letter brought about an immediate termination of the contract of employment and was not a letter giving notice to terminate. Had that issue been decided in Mr Newell's favour he would not have been out of time but, it having been decided against him, he was, prima facie , out of time; and there is no appeal now against that finding of the tribunal which was, in any event, plainly right, having regard to the terms of the letter.[5]The tribunal then went on to consider whether the prima facie time limit should be disapplied because it was not reasonably practicable for the claim to have been presented within that prima facie time limit. As is well established now by many authorities, a decision whether it was reasonably practicable to have presented a claim within the three-month period is a decision by a tribunal of fact and one which should not lightly be the subject of appeal.[6]Mr Newell has been greatly assisted in this case by a good friend, Mr Addis, who we are told has some legal knowledge and who has undertaken the task of putting Mr Newell's appeal and his arguments before us in writing with conspicuous skill and ability. Today Mr Newell has been represented by Mr Menzies, under the ELAAS Scheme, who has put forward the grounds of appeal against the tribunal's decision that it was reasonably practicable for the claim to have been presented within the time limit, with conciseness and economy. It is not necessary to go into many of the points taken in Mr Addis' skeleton argument to us because Mr Menzies has rightly concentrated on the grounds which go to the tribunal's decision as to whether or not the benefit of the escape clause, which would allow the complaint to proceed, should have been provided to Mr Newell and whether the tribunal were wrong in denying him the benefit of that escape clause.[7]The principal reasons, if not the only reason, why it is said that the tribunal erred are these; firstly, the presentation of the application was only some 11 days out of time and, secondly, that the Applicant, Mr Newell, the present Appellant, was unaware of the existence of a three-month limit as, indeed, was Mr Addis who was befriending him.[8]The difficulty with those submissions is that the tribunal was well aware of the extent, and the limited extent, to which the application was presented late and, equally, the tribunal was well aware that the basic explanation put forward for lateness was ignorance of the time limit. Indeed, the tribunal says in the last paragraph of its Decision on page 9 of our bundle:
"It would appear that the only reason that the applicant did not present his claim to the tribunal earlier was that he was unaware of the three month time limit but it is clear to the tribunal that ignorance of the time limit is not in itself sufficient to justify a finding that it was not reasonably practicable for the claim to be presented in time."
[9]Mr Addis and Mr Newell between them represented a duo of intelligent persons. They are not people who did not know where to find guidance on the law. There is no explanation as to their failure to seek advice on the law; it is clear from the facts that at one stage during the relevant period a solicitor was helping, although he may not have been asked about unfair dismissal.[10]We can see no basis on which it can arguably be said that the tribunal's decision on the facts was one which took into account considerations that it should not have taken into account, failed to take into account some considerations it should have taken into account, or otherwise was one on the facts which this Appeal Tribunal could arguably disturb. Our conclusion is that there is no arguable ground for this appeal and the appeal must be dismissed.