Machine Tool Industry Research Association v Simpson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE WOOLF,LORD JUSTICE MANN |
| Judgment Date | 10 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0210-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0102 |
| Date | 10 February 1988 |
[1988] EWCA Civ J0210-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE POPPLEWELL)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Woolf
and
Lord Justice Mann
88/0102
EAT 1055/87
MISS R. DOWNING (instructed by Messrs. Royds Barfield, Solicitors, London EC4A 2BL) appeared on behalf of the Appellant.
MR. DUNCAN OUSELEY (instructed by The Treasury Solicitor, London, SW1 9JS) appeared as amicus curiae.
This is an appeal by the Machine Tool Industry Research Association (to whom I shall refer hereafter as "the Employers") from a judgment of the Employment Appeal Tribunal on 15th May 1986, which in turn refused an appeal by the employers from a preliminary determination of the industrial tribunal at Manchester on 28th May 1985. The appeal comes before us to-day pursuant to leave granted by this court on 22nd May 1987.
The respondent, Doreen Simpson (to whom I shall refer as "the Employee") had been employed by the employers for a little under 21 years, when disaster struck her on 10th August 1984 necessitating her admission to hospital for an emergency operation. On 27th November 1984 she received a visit, by then at home, from the finance director of the employers, who imparted the information that she was going to be made redundant with effect from 30th November 1984.
There followed thereafter negotiations with which this court is not concerned, and payments were made under the provisions of the Employment Protection (Consolidation) Act 1978 ("The Act") on the basis of redundancy.
At the back of her mind, according to the facts as found by the industrial tribunal, the employee knew about plans for an adjustment of her employers' affairs involving a move to Manchester and consequent reductions in staff; that all made sense to her when she was told, as I have said, that she was to be made redundant.
Shortly before 26th February 1985 she had learned certain facts, to which I shall refer, which caused her to believe that perhaps the true reason for her dismissal was not redundancy at all; I state those facts in a bland and simple form at this stage of the judgment. On 26th February 1985 she made application on the appropriate form to the industrial tribunal, claiming that she had been unfairly dismissed; under the provisions of the Act that was some three days or so out of time. That point was taken by the respondents, the employers, in an undated notice; that they did not receive the application until 4th March 1985, They therefore asserted that the industrial tribunal did not have jurisdiction to entertain the complaint.
It is convenient at this stage to refer to the statutory provision. In section 67 (2) of the Act it is provided that
"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."
It is to be noted that there is no discretion in the wording of that section; the only discretion is to what extent the further period may extend, if the conditions are satisfied; i.e., if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within three months.
The preliminary point as to whether the industrial tribunal had jurisdiction was considered on 28th May 1985. The tribunal reached certain important findings of fact, one of which has been the subject of challenge on this appeal. I read from an earlier part of the reasons given in their Decision document:
"After dealing with one or 2 matters about the office she"—that is, the employee—"says that she had just received information that a particular typist had been re-engaged obviously for her expertise, and that she would now query why she was made reundant."
Then the facts are set out in paragraph 4, which I propose to read in full:
"We find the following facts:—
(a) That when the applicant was seen just prior to the 30th November she was still receiving medical care from her doctor and was not fit for work. That at that time she felt that the stated redundancy was all part of the move to Manchester, because, we accept from her she was so confused at the time and may have misled herself. That when she went to the Labour Exchange on the 26 February she saw a notice about unfair dismissal and asked for the document indicated in the notice.
"(b) That she heard, at the beginning of that week or over the weekend, that a typist with expertise had in fact been re-engaged. Having heard that she didn't know what to think, but thought that, as they had re-employed the typist, it may be there was no redundancy. Therefore, she decided on that day to bring an application having read the document obtained from the Labour Exchange."
Then, after referring to the case of Borland v. Independent Vegetable Processors in 1982, the Decision reads as follows:
"We find that the ignorance so far as the re-engagement of the typist was reasonable in the circumstances. The applicant did not hear about it until that week, and we have in mind her state of health at the time she was told about the redundancy having undergone a serious operation in about the August, and in particular, the fact exercising her mind about what she had been told about the possible move to Manchester, we can understand that it now seemed to her that the move was not going to take place. Therefore, in all the circumstances of this case, although the application is late, that on the facts we find that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months, and that she has in fact presented it within a reasonable time thereafter. Therefore, we find the Tribunal does have jurisdiction to hear the claim for unfair dismissal."
The employers appealed from that finding by a notice dated 5th August 1985. Their grounds of appeal are there set out, but as they are substantially repeated subsequently in the grounds of appeal here, it is sufficient if I say only that they asserted that the tribunal had erred when they failed to find, and should have found, that the typist in question was not in fact engaged to carry out the applicant's work; that they failed to decide whether a fact of fundamental importance was in fact made out by the applicant; and their appeal was based on the assertion that it was necessary for the tribunal to investigate the veracity of the fact which was the fundamental cause for the employee's belief that she had grounds for complaint and was the cause for her decision to make the application to the tribunal. Subject to one additional ground, that is the stance of the employers before this court.
The Employment Appeal Tribunal had introduced a procedure to deal with appeals from the Industrial Tribunal where preliminary points were involved, todetermine whether there was a point of law involved at all. That was dealt with by the tribunal, the board being presided over by Mr. Justice Waite on 21st October 1985. Having heard...
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