Appeal No. EAT/97/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4th November 1993
	Judgment delivered on 15th February 1994

	Before

	HIS HONOUR JUDGE J BULL QC

	MR J D DALY

	MR K M YOUNG CBE

JOSEPH HOYLE & SONS LTD	APPELLANTS

MR M FAYAZ	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr A Korn
(Representative)
	Messrs Dibb Lupton 	Broomhead
	Solicitors
	125 London Wall
	London EC2Y 5AE

For the Respondent	Mr C Hay
Northern Complainant Aid Fund
	Checkpoint
	45 Westgate
	Bradford
	West Yorkshire

HIS HONOUR JUDGE BULL QC      This is an appeal by Joseph Hoyle & Sons Ltd, the employers, against the decision of the Industrial Tribunal under the Chairmanship of Mr J R W Worrall, sitting at Leeds, on 7th December 1992, at a preliminary hearing in which that Tribunal held that it did have jurisdiction to hear allegations of unfair dismissal and racial discrimination by Mr Mr Mohammed Fayaz.  Full Reasons for that decision were sent to the parties on 16th December 1992.  Mr Fayaz was employed as weaver by the Appellant employers from 1989.  Before the Industrial Tribunal, the employers took as a preliminary issue, the point whether having regard to the time-limits of three months in the relevant legislation, the Tribunal had jurisdiction to consider Mr Mohammed Fayaz's complaint in view of the fact that his originating application was received by the Industrial Tribunal on 3rd August 1992.

	Section 67(2) of the Employment Protection (Consolidation) Act 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."

	Section 68(1) of the Race Relations Act 1976 provides as follows:
		"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

	The Industrial Tribunal found as a fact in paragraph 7 of their Reasons that Mr Fayaz's employment was terminated either by letter dated 4th May or by the letter dated 8th May.  In doing so they rejected the employers' case that his employment with the Company ended on 28th February when he failed to accept a variation in his contract of employment, and further failed to respond to a request by the employers either to accept or refuse their variation by 28th February.  The appeal to this Tribunal from the decision of the Industrial Tribunal can only be supported upon a point of law, and there can be no question of us retrying the matter.  That Industrial Tribunal had the advantage which is totally denied to us because we are a Tribunal of law and not of fact of hearing the evidence including that of the Applicant, Mr Mohammed Fayaz.  Mr Korn, who has presented his arguments to us with clarity and tenacity, invited our attention to the correspondence and in particular to a letter dated 26th February 1992 inviting Mr Mohammed Fayaz to accept a variation to his contract, and informing him that the employers would assume that he had resigned if he did not respond to that invitation.  The Industrial Tribunal also had to consider communications between the parties evidenced by the employers' letter of 20th March 1992, which conceded that the employers had written to Mr Mohammed Fayaz on 10th March stating that they were unable to resolve whether he was still in their employment or not.  The employers, in their letter of 20th March 1992 to the solicitors acting on behalf of Mr Mohammed Fayaz, add this:
		"You will also appreciate therefore, that we have not made Mr Fayaz redundant in accordance with his wishes, nor are we in a position to do so as a vacancy still exists for that work to be undertaken."
		"We are prepared and more than willing to see Mr Fayaz return to work either to work out his notice under the old contract of employment or to accept continuing employment under the new work practices."

	This position taken by the employers is reinforced by letters of 3rd and 15th April 1992.

	On 4th May 1992, the employers write further to the solicitors acting on behalf of Mr Fayaz in these terms:
		"Our efforts then and our subsequent letter of 10th March resulted from us trying to ensure that Mr Fayaz was not acting precipitately, but in retrospect it is clear that we should have treated his employment as having ended when he failed to respond to our letter of 26th February."

	Mr Korn has made elegant submissions to us upon the question of whether "elective theory" applies to issues under S.67(2) but without in any sense detracting from the subtlety of his argument, the application of the relevant time-limits under the statutes is primarily a question of fact.  There was, in our unanimous view, an abundance of evidence upon which the Industrial Tribunal could base the decision to which it came.  Further, we can detect no error of law whatsoever in the approach of this Industrial Tribunal and 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 which no reasonable Tribunal could have done.

	We therefore uphold the decision of this Industrial Tribunal and it follows that this appeal must be dismissed and we so dismiss it.