Appeal No. EAT/1072/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 April 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MRS T MARSLAND

	MR R H PHIPPS

MISS L C HADLEY	APPELLANT

CENTRAL MIDLANDS CO-OPERATIVE SOCIETY LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO ATTENDANCE OR
	REPRESENTATION BY
	OR ON BEHALF OF THE
	APPELLANT

	

	MR JUSTICE MUMMERY (PRESIDENT):    This is an appeal from the decision of the Industrial Tribunal held at Birmingham on the 18 June 1993.  For reasons notified to the parties on the 5 August 1993, the unanimous decision of the Tribunal was that it had no jurisdiction to consider an application brought by Miss L Hadley for unfair dismissal against the Central Midlands Co-operative Society Ltd.  Miss Hadley was dissatisfied with the Tribunal's decision and took out a Notice of Appeal dated the 13 December 1993. 
 
	This is a preliminary hearing of the appeal to decide whether the appeal raises an arguable point of law.  If it does, the matter will proceed to a full inter-partes hearing.  If it does not, there is no point in having such a hearing, and the appeal will be dismissed now.

	There has been no representation by the Appellant at the hearing.  A letter dated the 8 April 1994 was sent by a firm of Solicitors, Moseley Chapman & Skemp of Lichfield, stating that the legal aid certificate granted to their client was limited in that it required Counsel's opinion.  Attempts had been made by the Solicitors to obtain the agreement of the Legal Aid Board for an extension of legal aid to cover representation, but so far no extension to cover representation had been granted.  For those reasons it was not the intention of Miss Hadley to attend the preliminary hearing and she is not represented.

	We have therefore dealt with the matter on the basis of the points in the grounds of appeal of the Notice of Appeal, and of the reasons given by the Tribunal for its decision.  The Tribunal found certain facts in its decision.  The preliminary question whether the Tribunal has jurisdiction in view of the fact that the application was presented to the Industrial Tribunal after the expiration of the three month time limit.  It is provided by Section 67(2) of the Employment Protection (Consolidation) Act 1978 that:

		"An industrial tribunal shall not consider a complaint of unfair dismissal 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 relevant dates for the decision of the appeal are these.   Miss Hadley's employment was terminated on the 8 December 1992.  To be within the statutory time limit, her application to the Industrial Tribunal should have been presented by not later than the 7 March 1993.  The application was not presented until the 8 March 1993, one day out of time.

	At the hearing before the Industrial Tribunal evidence was given by Miss Hadley, and also by her father, Mr Hadley, who represented her.  The evidence she gave was that she was concerned about this dismissal.  From the outset she felt that it was unfair.  Prior to her dismissal she had been represented in domestic disciplinary proceedings with her former employer.  Before making an application to the Tribunal she decided to wait and see whether she could obtain other employment.  Her evidence was that, if she obtained other satisfactory employment, she would not bring proceedings.  To bring proceedings would involve Mr Hadley, who did not want unnecessarily to neglect his own business to help his daughter with her case.  In the event she obtained some employment through an Agency of a limited nature and at varying intervals.

	On about the 1 or 2 March 1993 she, through her father, who was advising her throughout, decided that she would make an application.  She went to the Employment Office and collected some forms.  Mr Hadley gave evidence that he had had some experience and had apparently been before the Employment Appeal Tribunal and the Court of Appeal.  His evidence was that he thought the time for presenting a claim was six months, but when the form of application was collected it was apparent from the form that the time limit was three months, not six months.  At the very latest, Mr Hadley had the forms on the 2 March.  They were apparently completed on the 4 March.  That is the date of Miss Hadley's signature on the IT1.  Mr Hadley said he, or his wife, posted the application to the Tribunal in a letter box at a Post Office, which he said was a main sorting office some time (he could not remember precisely when) on the evening of 4 March.  Two envelopes, both marked first class, were produced to the Tribunal; one addressed to the Tribunal, the other addressed to the Respondent.  Both were stamped 1.45 pm 5 March 1993.  That was a Friday.  The application was date stamped the 8 March 1993 by the Tribunal's office.  The 8 March was a Monday.

	The Tribunal on those facts came to this decision.  The only certain evidence was that the claim had not been presented until the 8 March and that the time of posting by first class mail was on Friday the 5 March.  The Tribunal dealt with the reason which was given for the delay in the evidence, and stated:

		"The Tribunal found the reason for the delay by the applicant in making the application was originally to see if the applicant obtained other satisfactory employment in which case she intended to make no application.  When the applicant did not obtain satisfactory employment she decided to make a claim and by no later than 2 March she was aware a claim must be presented before the end of three months from the date of the termination of her employment on 8 December.  The application form was dated 4 March".

	On the basis of those findings of fact the Tribunal decided that the applicant had simply left it too late in preparing and posting her application.  In those circumstances the Tribunal was not satisfied that it was not reasonably practicable for the claimant to be presented before the end of three months from the date of termination of employment.  

	In our view, the Notice of Appeal, put in by Miss Hadley does not disclose any point of law.  There is no arguable case for this matter to proceed to a full hearing.  The Notice of Appeal dated the 13 December 1993 sets out the facts relating to the posting of the application, the date of dismissal and the expiry of the time limit.  The Notice of Appeal states, wrongly, that it is established case law that the Tribunal shall extend the time period by one day, where the limit falls on a Sunday.  The position under the statute and the cases decided on it, is this.  The Tribunal, in order to entertain a complaint presented out of time, must be satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.  

	On the facts found by the Tribunal, it was reasonably practicable for the complaint to be presented before the end of that period.  What had happened is that for the reasons stated by Miss Hadley and her father in their evidence, they left it until a very late stage towards the end of the period to present the complaint.  Even when they became aware that it was a three month time limit, they failed to act in such a way as to ensure that the application was presented in time.

	The Notice of Appeal refers to two decisions and submits that the decision of the Tribunal was wrong in law, as the Tribunal considered that it was reasonably practicable for the application to be presented before the end of three months.  The Tribunal should have considered the extra day to be reasonable in this case, having regard to the case law on the point.  

	That is a misunderstanding of the position.  The Tribunal can only get to a position of deciding whether it is reasonable to extend a period by one day or more, if the Tribunal is satisfied it was not reasonably practicable to present the claimant before the end of the period of three months.  In this case it was reasonably practicable.  An appeal against that finding is an appeal on fact, not law.  For these reasons the appeal will be dismissed.