Porter v Bandridge Ltd

I invite Lord Justice Waller to deliver the first Judgment.

The appellant was a warehouse manager (he said warehouseman at the hearing) employed by the respondents. According to him, on a Tuesday night in May 1976, he was the last to leave bis work and he took from the store a car radio and went home with it. At 9.00 p.m. that night two police officers arrived with a search warrant. They searched his house and took away four articles including this car radio. Later that night he was charge with stealing it. The next morning he was charged with stealing one of the other articles - a clock radio. That morning also, he telephoned Mr. Evans, his employer, who told him he was sacked and in due course he was sent his cards. On 21st March, 1977, the criminal charge was due to be tried, but by that date the prosecution had discovered that he had paid for one of the articles, namely the clock radio, by instalments. They therefore offered no evidence, not only on that charge, but on the charge relating to the car radio which he had taken home the night they searched his flat. On 6th April the appellant made out his application. This came on before? the Industrial Tribunal on 15th June, when objectior was taken that it was out of time. In evidence before the Industrial Tribunal the appellant said that he was taking the car radio home for someone who had asked for one and he intended to pay. In the course of his cross-examination he said that on the Thursday he went to his solicitors, told them of the charge of stealing from his former employer and that he had been dismissed. The note of his evidence goes on: "I felt aggrieved and told them so. The solicitor did not say I could do anything about it or make any suggestion to me. I saw the solicitors about three or four times before the trial." The appellant also described how he went to the "unemployment exchange" and he said: "I was not givena leaflet about compensation for dismissal". He explained that he had to wait six weeks before he got unemployment benefit. He also described how he went to the Job Centre and looked at leaflets but never saw anything relating to unfair dismissal. He agreed in cross-examination that he read the "Sun" most days, that he had read about industrial tribunals, but then said: "It did not occur to me at the time."

The appellant explained that a week after the charge was dropped he met his step brother, and in the course of conversation the step brother told him that he had received compensation for unfair dismissal and advised him to see a solicitor. As a result, the appellant, as I have already said, made out his application on 6th April - a week after the date of trial and eleven months after the date of the police visit.

The Industrial Tribunal gave their decision on 7th July, 1977, which was as follows: "The unanimous decision of the Tribunal is that it is not satisfied that it was not reasonably practicable for the originating application to have been presented within the statutory period laid down by the Trade Union and Labour Relations Act, 1974." The appellant appealed against that decision to the Employment Appeal Tribunal and on 9th November, 1977, that tribunal dismissed the appeal and refused leave to appeal to this court. On 22nd November, 1977, an application to this court was adjourned for the respondents to be- served and we have heard that application and treated it as the hearing of the appeal.

The Trade Union and Labour Relations Act, 1974, in the First Schedule, paragraph 21(4), reads as follows: "An industrial tribunal shall not consider a complaint under paragraph 17 above 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 ina case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months." That section replaced a similar provision contained in the Industrial Tribunals, (Industrial Relations, etc.) Regulations 1972. That regulation was considered by the Court of Appeal in Dedman v. British Building and Engineering Appliances Ltd. (1974) 1 Weekly Law Reports 171. The provision was not identical because in the 1972 regulations the period was 28 days, whereas it is three months in the present section, and the phrase "in a case where it is satisfied that it was not reasonably practicable … replaced a somewhat similar phrase "unless it is satisfied that in the circumstances it was not practicable …" In Dedman's case Lord Denning, Master of the Rolls, traced the difference between the interpretation which had been adopted by the English Industrial Court and the stricter interpretation adopted by the Scottish Court. He quoted the cases in England which had adopted the more liberal approach and then said this: "It is difficult to find a set of words in which to express the liberal interpretation which the English Court has given to the escape clause. The principal thing is to emphasise as the statute does 'the circumstances'. What is practicable 'in the circumstances'? If in the circumstances the man knew or was put on enquiry as to his rights and as to the time limit then it was practicable for him to have presented his complaint within the four weeks and he ought to have done so but if he did not know and there was nothing to put him on enquiry then it was 'not practicable' and he should be excused".

Lord Justice Scarman, whose approach was similar to Lord Denning's, having dealt with the case where the complainant knows he has rights, went on: "Contrariwise, does total ignorance of his rights inevitably mean that it is impracticable for him to present his complaint in time? In my opinion, no. It would be necessaryto pay regard to his circumstances and the course of events. What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should that prove to be an acceptable explanation of his continuing ignorance of the existence of his rights it would not be appropriate to disregard it relying on the maxim 'ignorance of the law is no excuse'. The word 'practicable' is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance."

Lord Justice Stamp adopted a much stricter approach and was of the opinion that the fact that a man does not know about his rights adds nothing to the point in determining whether it was practicable for him to do something. He was, as I see it, adopting the Scottish approach.

Have the slight changes which have taken place in the regulation altered in any way the importance of those Judgments? There is no longer in the section the words "in the circumstances". Instead, the phrase is "in a case where" and the very short time of 28 days has been increased to three months. Furthermore, the word "reasonably" has been put in front of "practicable", In my judgment, the effect of the alterations to the drafting of the section is to make it clear that the liberal interpretation adopted by Lord Denning, Master of the Rolls, and Lord Justice Scarman is the interpretation which should be adopted and not the rather narrower interpretation adopted by the Scottish Tribunals and by Lord Justice Stamp. But, in my view, the words "in a case where" do not allow a more generous view to be taken than was taken under the old section where it was "in the circumstances". It seems to me that they probably cover precisely the same ground but that if there is a difference it is a narrowing down and not an enlargement.

I have considered whether any help can be obtained from theuse of this phrase in other legislation. The phrase "not reasonably practicable" was used, for example, in the Coal Mines Act 1911, Section 102(8) as an escape clause (see Edwards v. National Coal Board (194-9) 1 King's Bench 704). That Act was repealed by the Mines and Quarries Act 1954 and by Section 157 the phrase was replaced by the word "impracticable" also as an escape clause. In other master and servant legislation where the phrase "not reasonably practicable" occurs, not as an escape clause but as delimiting the extent of the duty (see for example the Factories Act 1961, Section 23(1)) the emphasis is slightly less strict. On the other hand, the wide construction of the phrase "so far as is practicable in Section 25 of the Matrimonial Causes Act 1973 is more consistent with the very narrow application of the phrase "not reasonably practicable" because the more widely the word "practicable" is interpreted the narrower must be the circumstances in which it is "not practicable" or "not reasonably practicable". The logic of the wide construction of "practicable" would result in the very strict construction of "not practicable" which the Court of Appeal rejected in Dedman's case. In my opinion it would not be right to pay much attention to the use of the word "impracticable" or the phrase "not reasonably practicable" in master and servant legislation, nor for that matter the word "practicable" in matrimonial legislation. I would only say that none of them offers any support to a more liberal construction than that adopted by the majority of the Court of Appeal in Dedman's case. For an example of an escape clause which gives a wider discretion see R. v. Secretary of State...