Palmer v Southend-on-Sea Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY |
| Judgment Date | 19 January 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0119-3 |
| Docket Number | 84/0009 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 1984 |
[1984] EWCA Civ J0119-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice.
Lord Justice Dunn
and
Lord Justice May
84/0009
EAT/658/82
and
MR. STEPHEN WHITAKER (instructed by Messrs. L. Bingham & Co.) appeared on behalf of the Appellants.
MR. MERVYN ROBERTS (instructed by F.G. Laws, Esq., Chief Executive Officer and Town Clerk) appeared on behalf of the Respondents.
This is an appeal from a judgment of the Employment Appeal Tribunal of the 23rd March, 1983. The Appeal Tribunal then had before it two associated appeals by the present appellants against the decision of an industrial tribunal held at London North on the 19th July, 1982. This is one more in the line of cases concerned with the time limit imposed by the relevant legislation for presenting complaints of unfair dismissal to an industrial tribunal.
The present statutory provisions are contained in section 67 of the Employment Protection (Consolidation) Act 1978, although it will be necessary later in this judgment to refer to the earlier similar legislation. For the present, the relevant provisions of section 67 are as follows:
"(1) A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.
(2) 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."
At the material time both these appellants had been employed by the respondents at Southend Airport for substantial periods approaching 25 years. In the summer of 1980 it was suggested that both men had been involved in the theft of fuel at the airport. On the 2nd September a letter was written by Mr. Clarke, the Director of Engineering and Planning Services of the Borough Council, to each of these appellants to the effect that the Council had heard that the two men had been charged by the police for this alleged offence and would be appearing in court in due course. The letter went on to say that pending the outcome of the proceedings they would be suspended on half pay. The second paragraph of each letter was in the following terms:
"In the event that you are adjudged to be not blame-worthy your suspension will be lifted and you will be entitled to re-imbursement of lost pay. On the other hand, a conviction by a Court will establish gross misconduct which could lead to instant dismissal."
Early in April 1981 the two men appeared before the Crown Court and were convicted of theft. On the 8th April, 1981 Mr. Clarke wrote to them again. His letter said:
"I have been informed that in the Crown Court you were found guilty of the theft of a quantity of petrol which was the property of the Council. In these circumstances I consider that gross misconduct has been clearly established and, accordingly, your contract of employment is terminated forthwith."
He then informed the appellants of their right of appeal to the Appeals Committee of the Council within the period provided. That right of appeal was exercised and the matter came before the Appeals Committee on the 22nd April, that is a fortnight after Mr. Clarke's letter. On the following day Mr. Laws, the Chief Executive Officer and Town Clerk of Southend-on-Sea Borough Council, wrote as follows:
"I write formally to confirm the decision intimated verbally at yesterday's hearing, which was that the Appeals Committee have upheld the decisions of the Chief Officers in dismissing Messrs. Saunders and Palmer for gross misconduct.
The Committee did, however, indicate that in the event of an appeal to a higher court against the Crown Court's decision being decided in favour of your members, they would (without any promise as to the outcome of such consideration) be prepared to look at the matter again."
That letter was sent by Mr. Laws to Mr. Taylor, who was the officer of the trade union who had been acting on behalf of the present appellants.
No further action was then taken in the matter by way of application to an industrial tribunal, nor did the two men seek to exercise any further right of appeal internally, though we understand that the machinery did provide for an appeal to a regional body.
On the 19th February, 1982 the appellants' convictions for theft were quashed by the Court of Appeal, Criminal Division. Following this, Mr. Taylor wrote to the respondents on the 19th February, 1982 drawing their attention to the fact that the convictions had been quashed and asking for the appellants' re-instatement. On the 25th March solicitors acting for the appellants in their turn wrote to the respondents and their letter ended:
"Our clients appealed against your decision of the 8th April, 1981 to dismiss them for gross misconduct and this was heard by the Appeals Committee of the Council. We understand that this appeal was dismissed but our clients were told that the final decision would not be made until the hearing of the appeal against their conviction.
As the appeal has now been heard and as the convictions have been removed we can see no obstacle to re-instatement and we await hearing from you in respect of this matter as soon as possible."
On the 1st April, 1982 Mr. Laws replied. He referred to the letter of the 25th March and in the second paragraph of his letter said:
"The Personnel Committee at its recent meeting gave further consideration to this matter including your representation on behalf of your clients, but after a very full discussion felt unable to accede to the request you made regarding re-instatement or compensation."
The Appeals Committee, it appears, is a sub-committee of the Personnel Committee of the Council.
On the 28th April, 1982 these appellants filed originating applications alleging wrongful dismissal by the respondents at the Central Office of Industrial Tribunals. As these applications were filed over a year after the effective date of determination of the appellants' employment by the respondents, as defined by section 55(4) of the 1978 Act, it was necessary to give consideration to the question of the statutory time limit under section 67(2). It was in these circumstances that the two applictions came before the industrial tribunal at London North by way of a preliminary hearing on the 19th July, 1982. The question for the tribunal, as it recognised, was whether it could be satisfied that it had not been reasonably practicable for the appellants' complaints to be presented within the relevant three-month period. The appellants' argument before the industrial tribunal was that on the proper construction of the Chief Executive's letter of the 23rd April, 1981 the respondents' domestic appeals procedure had not been exhausted; that in the event (as occurred) of a favourable decision in the Court of Appeal they would have the right to ask for a review, and that it was a reasonable course of action not to make a complaint to an industrial tribunal and thus prejudice the appellants' domestic appeals before the Court of Appeal had announced its decision. In support of this argument counsel referred the tribunal to certain dicta of Kilner Brown, J. in Crown Agents for Overseas Governments and Administration v. Lawal (1979) I.C.R. 103, at page 109, which we shall have to consider later in this judgment.
One member of the industrial tribunal was satisfied that it had not been reasonably practicable for the appellants' complaints to be presented within the prescribed time. He accepted the interpretation of the letter of the 23rd April, 1981 contended for by counsel for the appellants. His experience was that in such cases it was normal practice for trades unions, as was the fact in the instant case, to advise their members not to present a complaint to an industrial tribunal, since that might prejudice the internal appeal.
The majority of the industrial tribunal, however, was not so satisfied. They thought that the first paragraph of the letter of the 23rd April, 1981 made the situation quite clear: the internal appeal had been dismissed: the appeal procedure had been exhausted (unless the employees decided to go on to the next stage, which was an appeal to the Herts and Essex Regional Committee): it had been unwise for the appellants to rely upon the limited hope contained in the second paragraph of the letter of the 23rd April as making it "not reasonably practicable" to present their complaints to the tribunal before the decision of the Court of Appeal. In the view of the majority it was not only practicable but it would have been a very sensible course of action for a dismissed employee, such as one of the appellants, confident of his innocence, to have presented a complaint, drawn the attention of the industrial tribunal to the letter of the 23rd April, 1981 and requested a postponement until the Court of Appeal had reached a decision. The decision of the majority of the tribunal continued in this way:
"If, of course, the applicants or their adviser had thought that in default of a postponement the applications would be bound to fail, that would not have been something that would make it 'not reasonably practicable' to present the...
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