Appeal No. EAT/158/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25th October 1993
	Judgment delivered on 13th December 1993

	Before

	HIS HONOUR JUDGE J BULL QC

	MR R JACKSON

	MR J A SCOULLER

LONDON BOROUGH OF HACKNEY	APPELLANTS

MR N ALLIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Miss H Mountfield
(of Counsel)
The Solicitor
London Borough of Hackney
298 Mare Street
LONDON E8 1HE

For the Respondent	Mr G Brodie
(of Counsel)
Messrs Clifford Watts Compton
67 Stoke Newington Road
LONDON N16 8AG

HIS HONOUR JUDGE BULL QC       This is an appeal by the Mayor and Burgesses of the London Borough of Hackney, the employers, against the decision of the Industrial Tribunal sitting at London (North) on 8th December 1992, at a Preliminary Hearing, in which they held that they did have jurisdiction to hear an allegation of unfair dismissal by Mr Allin, the Respondent, that he had been unfairly dismissed notwithstanding that his application was presented after the end of a period of three months from the effective date of termination.

	Mr Allin was employed by the Appellants as a roofer's labourer and on 2nd December 1991 is alleged to have removed one or more ridge tiles from the roof of a privately owned house.  Arising out of that allegation a disciplinary hearing was held by the Respondents on 30th January 1992, when it was found that the allegation was proved and the Respondent was dismissed for gross misconduct on that date, 30th January 1992.  This decision was notified to Mr Allin by a letter dated 31st January 1992 in which he was informed that his last day of service was 30th January 1992.  Mr Allin decided to pursue his right to an internal appeal, but such appeal was not in fact heard until 1st July 1992 by the Respondents' employee sub-committee, which came to the decision to dismiss his appeal.  He was notified of the result together with the reasons for that decision in a letter dated 16th July 1992.  Mr Allin's originating application was received on 4th August 1992.

	Before the Industrial Tribunal, the employers took as a preliminary issue, the point whether having regard to the time limit contained in S.67(2) of the Employment Protection (Consolidation) Act 1978, the Tribunal had jurisdiction to consider Mr Allin's complaint in view of the fact that his originating application was received by the Industrial Tribunal over 6 months after the effective date of the termination of his employment.

	Section 67(2) of the Employment Protection (Consolidation) 1978, provides as follows:

		"Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or 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."

	The Industrial Tribunal unanimously concluded that it did have jurisdiction to consider the Originating Application, and rejected the argument of the employers.

	Miss Mountfield, who has presented this appeal with great force, skill and attractiveness, has urged upon us that it was perverse for the Industrial Tribunal to hold that it was not reasonably practicable for the Respondent to have submitted his application in time.  She goes on to make a specific criticism that no tribunal, properly directing itself, could have treated the employers' letter of 16th July 1992 as having any bearing upon the conduct of the employers between 30th January, the date upon which Mr Allin was dismissed, and the 30th April 1992, which upon her calculations, was the last date upon which consistent with the limitation contained in S.67(2) the originating application should have been presented.  The final paragraph of that letter was in these terms:
		"The sub-committee have therefore rejected your appeal and uphold the decision to dismiss you from the Council's service for reasons of gross misconduct.  Your last day of service remains fixed at 30 January 1992.  It should be noted that there is no further appeal mechanism under the Council's disciplinary procedures.  However you may wish to appeal to an Industrial Tribunal on the grounds of unfair dismissal.  You are strongly advised to consult with your trade union representative on this issue."

	The Industrial Tribunal noted that the position taken by the employers in this letter with regard to Mr Allin's right to apply to an Industrial Tribunal was "therefore the precise opposite of the position which is now adopted by them in this hearing".

	In paragraph 10 of their Decision, the Industrial Tribunal accurately set out in a highly abbreviated summary the arguments made by Miss Mountfield, amplified by citation of authority:
		"It is clearly established that an Applicant cannot rely on mistakes on the part of a skilled adviser as rendering it impracticable to present a complaint within the time prescribed by Section 67 of the 1978 Act. ..."

	She submits however that it was irrational for the Tribunal to have found that the contents of the letter of 16th July 1992 had any effect upon the mind or conduct of the Respondent.  The Industrial Tribunal found that the notification of dismissal was dated 31st January 1992 and that the employee's internal appeal against that dismissal was not heard until 1st July 1992 and the Appellant was notified by letter dated 16th July 1992, some 51/2 months later.  The employers, despite having changed from a system which postponed the effect of termination until the disposal of any internal appeal, continued to "promulgate erroneous advice".  We can well understand therefore how the Industrial Tribunal found that in those circumstances it lay uncomfortably in the mouth of the employer to say that the employee ought to have been aware that the correct position in law was the opposite to that which was stated in their letter.

	We are unable to accept that the Industrial Tribunal based its conclusion solely upon what was contained in the letter of 16th July 1992.  They find specifically that there was a belief that the old system was still in operation, and that the system changed at the very time when the Respondent's case was under consideration and further that by their own standard form letters the Appellants were contributing to the belief that the Respondent did not have to present his complaint of unfair dismissal until after the disposal of the final internal appeal.  In the concluding sentence to paragraph 12 of their Reasons, the Industrial Tribunal finds:
		"... it can only have been an erroneous belief on the lines of the advice promulgated by the (Appellants) which explains the failure to present the application in time in this case."

	Miss Mountfield has drawn our attention to the well-known dictum of Lord Denning, Master of the Rolls in Walls Meat Co Ltd v. Khan [1979] ICR 52 at p.56D:
		"I would venture to take the simple test given by the majority in Dedman's case [1974] ICR 53, 61.  It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time?  Ignorance of his rights - or ignorance of the time limit - is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them.  ..."
In our judgment it is wholly consistent with the view of the facts taken by the Industrial Tribunal that it did appear that the Respondent and his advisers in his trade union could not reasonably be expected to have been aware of the time-limit in peculiar circumstances of this case as they found them.

	We accept that the expression "reasonably practicable" in S.67(2) imports the three-stage test adumbrated in Machine Tool Industry Research Association v. Simpson [1988] IRLR 212.  The conclusions of the Industrial Tribunal are attacked on the basis that they are perverse in the sense in which that term is understood in the case of Piggott Bros & Co Ltd v. Jackson & Ors [1991] IRLR 309.  Much of the argument addressed to us was based upon assertions of what the evidence had been before the Industrial Tribunal.  We have however reminded ourselves in this connection of the trenchant words of Lord Donaldson, Master of the Rolls at p.311:
		"However, I fail to understand how if an appeal is based upon, or includes, an allegation that the Industrial Tribunal's decision was perverse, it is possible to contemplate allowing the appeal without having access to all the evidence bearing on the alleged perversity." 
We have no Notes of Evidence whatsoever.  No Interlocutory Application was made by the Appellants for the Chairman's Notes of Evidence so far as they were material to this issue to be transcribed for the use of the EAT.  The responsibility for so doing was plainly upon the Appellants.

	Lord Donaldson, M.R. continued by adopting the judgment of Knox J in setting the limitations upon the jurisdiction of the EAT:
		"We were very properly reminded by ... that the jurisdiction of this tribunal is limited to questions of law by S.136 of the Act, that it is not right that questions of fact should be dressed up as points of law so as to encourage appeals or go through the reasoning of industrial tribunals with a fine tooth-comb to see if some error can be found here or there."

	The Industrial Tribunal had the privilege which is completely denied to us because we are a Tribunal of law not of fact, of seeing the Applicant give evidence, hearing his evidence and the testing of it.  We can detect no error of law in the approach of this Industrial Tribunal, and in the absence of access to the evidence which they heard, we do not consider that it is possible to conclude that their Decision was perverse.  Most certainly we cannot say that in any of the respects which are put forward, or indeed, any other respect which occurs to us, that this Industrial Tribunal acted in a way or reached a conclusion that no reasonable tribunal could have done.  It follows therefore that this appeal falls to be dismissed and we so dismiss it.