Dedman v British Building & Engineering Appliances Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP |
| Judgment Date | 06 November 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1106-1 |
| Date | 06 November 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1106-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by the Applicant, Mr. Dedman, from Judgment of the National Industrial Relations Court on 11th December, 1972.
The Master of the Rolls (Lord Denning),
Lord Justice Stamp and
Lord Justice Scarman.
Mr. WILLIAM MACPHERSON, Q. C., and Mr. M. F. HARRIS (Instructed by Messrs. William Charles Crocker) appeared on behalf of the Appellant Applicant.
Mr. R. J. HARVEY, Q. C., and Mr. J. E. ACTON-BOND (instructed by Messrs. Wragge & Co.) appeared on behalf of the Respondents.
Mr. Dedman was the contracts manager for the British Building and Engineering Appliances Ltd. He is now aged 46. He started work for them in 1965. On 5th May 1972, without previous warning, the employers handed him a letter saying:
"…The Board has now decided to considerably alter the activities of the Department and we have, therefore, no alternative but to terminate your employment immediately. It is with regret that we have to take this step, but there is no alternative.
A cheque covering your salary for the full month of May, plus one month in lieu of notice, in enclosed, together with your Insurance Card and P45.
Your car, Keys and any other Company property should be left on the premises today"
On the same day he was handed his insurance card. It was stamped for the week ended 5th May 1972, but not thereafter. He left and did not go back to the firm thereafter.
Mr. Dedman knew that under the Industrial Relations Act 1971 he had some rights: but he did not know that he had to present his complaint within four weeks. But a week or so later, in the middle of May 1972, Mr. Dedman went to his solicitors. They did not advise him that he had to present his complaint within four weeks. Nor did anyone else tell him. He left it to his solicitors. They did not write to the employers until 13th June 1972, when they wrote this letter:
"…We have been consulted by Mr. A, J. Dedman…. concerning his dismissal from your employ as a Contracts Manager on the 5th May 1972.
The terms of your letter dated the 5th May 1972, would hardly justify our Client's immediate dismissal….
The Industrial Relations Act 1971, as you will be aware, does offer legal protection for an employee who has been unfairly dismissed, and it is clear that your dismissal of Mr. Dedman is unfair.
We shall be glad if you will….reconsider the position ….".
On 16th June 1972, the employers' solicitors replied:
"…They obviously regret the circumstances necessitating Mr. Dedman's dismissal and hope that he will not be caused suffering thereby. In fact, it was for this reason that they made as generous a severance payment to him as the circumstances permitted. They cannot, therefore, consider further Mr. Dedman's position".
On 23rd June 1972, Mr. Dedman sent to the Industrial Tribunal a complaint of unfair dismissal, which the Tribunal received on 26th June 1972.
On 14th July 1972, the employers put in a notice opposing the claim on these grounds:
"That the Industrial Tribunal be precluded from entertaining this complaint by reason of it not having been presented before the end of the period of four weeks beginning with the effective date of termination of the applicant's contract".
On 15th August 1972, the Industrial Tribunal considered this preliminary point: "Had the application been made within the period of four weeks? and, if not, whether it could be said that it was not practicable for the applicant to do so".
On 12th September 1972, the majority of the Tribunal held that Mr. Dedman's employment was not terminated until 31st May 1972: and that, therefore, his complaint (which was presented on 26th June 1972) was within the four weeks and was in time. But the Chairman dissented. He thought that his employment was terminated on 5th May 1S72, and that, therefore, the complaint was out of time, being presented after the four weeks. On appeal, the Industrial Court agreed with the Chairman. They held that the complaint was out of time. Mr. Dedman appeals to this Court.
During the hearing of the appeal, we felt that it was desirable to consider these two points:
(1) What was the effective date of termination of Mr. Dedman's employment? was it the 5th May 1972, or 31st May 1972?
(2) If it was 5th May 1972 (so that the complaint presented on 26th June 1972, was outside the four weeks), was it "not practicable" for Mr. Dedman to have presented it within the four weeks?
Upon this second point, the facts had not been found by the Tribunal, but the parties have been good enough to agree them and I have included them in my statement of the facts. We discovered, too, that the Industrial Court today was desirous of our considering this second point because there was some conflict of views between England and Scotland of the correct interpretation of the words "not practicable". So we have considered it. I will take the two points in order.
1. THE EFFECTIVE DATE OF TERMINATION
This depends on the true interpretation of the letter of 5th May 1972, and the events of that day. The letter says clearly in one paragraph that the employers "terminate your employment immediately", but then says in the next: "a cheque covering your salary for the full month of May, plus one month in lieu of notice, is enclosed". The lay members of the Tribunal were impressed by the payment of "salary for the full month of May. They thought that this meant he was employed for that month, but not required to work. I can understand that point of view, but I think the interpretation is ever-borne by the earlier words; "terminate your employment immediately". Also by the fact that he was given his cards stamped up to that day, and also left that 'day finally. Furthermore, his solicitors in their letter of 13th June spoke ofhis "immediate dismissal" on 5th May 1972. On 28th June 1972, they wrote to the Tribunal, saying that his dismissal "was on 5th May 1972". All things considered, I think the right view is that his employment was terminated by immediate dismissal on 5th May 1972. The payment of salary for Way and June was made as compensation for immediate dismissal and not Joy way of continuation of his employment. I agree with the Industrial Court on this point.
2. WAS IT "NOT PRATICABLE" FOR MR. DEDMAN TO PRESENT HIS COMPLAINT WITHIN THE FOUR WEEKS?
Under the provisions of the Industrial Relations Act 1971 a worker who seeks compensation for unfair dismissal is bound to comply with a very strict time limit. We must present his complaint within four weeks after his employment has terminated. There is an "escape clause" which I will consider in a moment, but, unless the worker C?JI bring himself within it, he is barred.
According to the decisions of the Industrial Court, the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one (day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal: "I do not want to take advantage of this man. I will not take any point that he is a day late"; nevertheless the tribunal cannot hear the case. It has no power to extend the time: see ( Westward Circuits v. Read 1973 I. C. R. 301); Rogers v. Bodkin (15th hay 1973). The complaint must actually reach the tribunal itself within the four weeks. It is not sufficient for the man to put it into the post-box. He must see that it is "presented" and delivered into the hands of the clerks of the tribunal themselves within the four weeks. If it arrives a minute aft midnight on the last day, the clerks mustthrow it out. The tribunal is not competent to hear it: see Anglo-Continental v. Gardiner 20th March 1973. In counting the time, too, the man. is not even given the full four weeks. According to the decision of the Industrial Court, the first day includes the very day on which his employment terminates so that he must deliver it to the Tribunal within twenty-seven days thereafter. Else he is out: see Hammond, v. Haigh Castle & Co. Ltd. (1973) I. C. R. 348: Haigh v. Lewis, 11th April 1973.
Seeing that the time limit is so strict, it is a comfort to find that there is an "escape clause". The man is not barred by the time limit if "the tribunal is satisfied that in the circumstances it was not practicable for the complaint to be presented before the end of the period".
The escape clause is, however, not at all easy to interpret. So much so that an acute difference is disclosed between the Industrial Court sitting in Scotland and that sitting in England. The Scottish Court would construe the word "practicable" in the strict literal sense: whereas the English Court would construe it liberally in favour of the man. The difference is high-lighted by taking the case of a man who does not know that he has a right to claim compensation for unfair dismissal, or who does not know of the time limit. The Scottish view is that his ignorance "cannot of itself justify a Tribunal in holding that in the circumstances it was not practicable for the complaint to be presented within the period prescribed by the Rules", see Dewar & Finley Ltd. v. Glazier G (3rd July 1973). The English view is that, if he did not in fact know of his rights and the circumstances were not such as to put him on inquiry, then it was not practicable for him to present a complaint. "Unless and until he is put on inquiry, it is clearly impracticable for a dismissed employee to present a claim", see Westward Circuit v. Read 1973 I. C. R. at page 305.
This difference must be resolved. In my opinion the words "not practicable" should be given a...
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Palmer v Southend-on-Sea Borough Council
...limits provided by the Act of 1971." 29 We then turn to the first decision of the Court of Appeal on the point in Dedman v. British Building and Engineering Appliances Ltd. (1974) I.C.R. 53. In that case solicitors consulted by the dismissed employee within four weeks of his dismissal did ......
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...make it `not reasonablypracticable' to bring a claim in time (see, for example,Dedman vBritish Building and Engineering Appliances Ltd [1974] ICR 53, per-Scarman, LJ, at p.64).Neill, LJ describes Mrs Biggs's error as beingone of law and states that a proper construction of the words `reason......