Noel v London Underground Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE JUDGE,LORD JUSTICE WALLER |
| Judgment Date | 29 June 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0629-6 |
| Docket Number | No EATRF 1998/0898/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 1999 |
[1999] EWCA Civ J0629-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Judge
Lord Justice Waller
No EATRF 1998/0898/3
MR K BRYANT (Instructed by Frances Low of London) appeared on behalf of the Appellant
The Respondent was not represented and did not attend
The employer, London Underground Ltd., appeals from the order dated 13 May 1998 of the Employment Appeal Tribunal ("EAT"). The EAT thereby dismissed the employer's appeal from the decision on 3 November 1997 of an Industrial Tribunal chairman sitting alone at London North whereby it was determined that the Tribunal had jurisdiction to consider the claim by the employee, Margaret Noel, that she had been unfairly dismissed.
The facts can be stated shortly. The employee was employed by the employer from 12 February 1990 until 10 April 1997, the effective date of termination, latterly as a station supervisor. Her dismissal came about because of an incident on 6 March 1997 involving a passenger. She claimed that she was assaulted by the passenger. The passenger alleged that the employee assaulted her. The employer carried out an investigation into the incident, as a result of which a disciplinary hearing was held. She was then dismissed. She appealed against that decision under the internal appeals procedure, but on 23 April that appeal was dismissed. She requested a review by a director and that review took place on 23 June. The director on 1 July wrote to the employee's trade union representative in the following terms:
"Whilst I believe the conduct of Mrs. Noel on 6 March 1997 was completely unacceptable and cannot be tolerated, I accept that the decision to dismiss her was perhaps harsh, given her domestic situation and that she had received no previous warning.
I am therefore prepared to re-employ Mrs. Noel as a station assistant (MF) on and from Monday 7 July 1997. For future entitlements the date entered service will remain 12 February 1990. However, her Supervisory licences will be cancelled. Subject to satisfactory performance she can apply for promotion after 6 months."
It is common ground between the parties that the employee was being offered not reinstatement but a new job at a lower rank with a salary reduction of 20%, albeit that she was being allowed to be treated as having entered service in 1990.
The employee was unable to start work on 7 July and accordingly it was agreed that she should start work on 14 July. On 4 July a letter was sent to her with a new contract of employment. But she was required to undergo a medical examination before resuming employment. On that examination she was found to have traces of cannabis in her blood. In consequence the employer withdrew the offer of reemployment, as she was informed by letter dated 28 July.
By s.111 (1) Employment Rights Act 1996 a complaint of unfair dismissal may be presented to an Industrial Tribunal against an employer. But by s.111 (2), subject to subs. (3) (relating to a dismissal with notice) an Industrial Tribunal is not to consider a complaint under s.111 unless it is presented to the Tribunal -
"(a) before the end of the period of three months beginning with the effective date of termination, or
(b) 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 that period of three months".
The employee's representative had prepared an originating application complaining of unfair dismissal before 9 July 1997 when the three-month period from the date of dismissal expired. But that application was not presented until 7 August 1997. When it was presented, her complaint related to her dismissal on 10 April 1997 and the remedy she sought was reinstatement. The employer objected that the Tribunal had no jurisdiction to hear the employee's complaint out of time. This led to the hearing before the Industrial Tribunal chairman on 10 October 1997.
The Tribunal in its decision stated that it was clearly established that the mere fact of an internal appeal did not of itself render it impracticable to present an originating application within the three-month period. But it said that it had been recognised that there may be cases where the special facts of the case persuade the Tribunal that it was not reasonably practicable to complain to the Tribunal within the time limit. It took the view that there were in the case special facts which justified departure from the usual rule. It said:
"9…. Until the Applicant's appeal was determined, she did not know whether she would have a worthwhile right of action in the industrial tribunal. However, the Applicant's further appeal to one of the Respondents' directors was determined substantially in her favour before the expiry of the three-month time limit. Although [the employer's solicitor] is almost certainly correct in his submission that the Applicant had a right to complain of unfair dismissal throughout the period after the decision to dismiss her was taken on 10 April because the offer to re-employ her was not an offer of reinstatement which had the effect of annulling the previous decision to dismiss, I take the view that the existence of the offer of a new job was a fact which was fundamental to the Applicant's right to bring a claim of unfair dismissal. In Churchill -v- Yates & Sons Ltd [1983] ICR 380 the Employment Appeal Tribunal held that it was not reasonably practicable for an employee to bring a complaint of unfair dismissal until he had knowledge of a fundamental fact that rendered the dismissal unfair and that, where the fact was crucial to whether there was a ground for claiming unfair dismissal, it was irrelevant that the employee could have brought a claim on another separate ground. I take the view that that principle applies also to a situation where an employee discovers that he not only has a mere technical right to bring a claim of unfair dismissal, but that that right is a right of substance, which is likely to bring the employee some valuable benefit.
10. Whether or not the Applicant had a bare right to bring a claim of unfair dismissal, that right was unlikely to be of any practical benefit to her so long as the Respondents' offer of re-engagement remained alive. First, the claim was of little value to her since she had been re-employed, albeit on slightly less favourable terms. Secondly, her claim of unfair dismissal could always be met by a defence that any previous unreasonableness by the employer had been rectified by their new offer of employment.
11. The Applicant's position was, in my view, fundamentally altered when the new offer of employment was withdrawn. Since it was not withdrawn until after the expiry of the three-month time limit, the conclusion which I have reached is that it was not reasonably practicable for the Applicant to present the application within time. No criticism can be made of the delay between 28 July and 7 August, and I have therefore reached the conclusion that the application was presented within a reasonable further time after the expiry of the time limit.
12. The employment protection legislation ought, if possible, be construed to promote good industrial relations. To my mind, it would not accord with good industrial relations practice to compel employees to bring originating applications before the expiry of the three-month time limit where problems have been resolved by internal means merely to guard against the eventuality that a solution to a particular problem might subsequently break down.
13. For those reasons, the conclusion that I have reached is that the Tribunal does have power to consider this complaint further."
The employer appealed but the EAT (His Honour Judge Levy Q.C. presiding) dismissed the appeal. However, it gave leave to appeal.
As this is a second-tier appeal, this court is more concerned with whether the Industrial Tribunal chairman was correct than with the decision of the EAT. The test under s.111 (2) is in two parts. (1) Was it reasonably practicable to present the complaint within the three-month period? (2) If not, was the complaint presented thereafter within a reasonable period?
We have had the benefit of helpful arguments from Mr. Bryant for the employer and Mr. Hughes (to whom I would pay particular tribute for appearing at short notice on behalf of the Bar pro bono unit) for the employee.
Mr. Bryant submitted that the Tribunal erred on both parts of the test. On the first part he submitted that there was no distinction material to the question of reasonable practicability between the employee's "technical right" and her "right of substance", and that the Tribunal confused the proper test with one of mere reasonableness. He contended that there was no fundamental alteration in the employee's position in any event. On the second part, Mr. Bryant submitted that the Tribunal had failed properly to consider that part of the test because it only considered the period after 28 July rather than the correct period which was from the expiry of the three-month period.
On the latter point it is sufficient to say that whilst no doubt it is strictly correct that the Tribunal was required to consider whether the complaint was presented within a reasonable period after the expiry of the three-month period, in a case such as the present where the Tribunal had found that it was not reasonably practicable to present the complaint within the three-month period because of...
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