Post Office v Sanhotra
| Jurisdiction | UK Non-devolved |
| Date | 2000 |
| Court | Employment Appeal Tribunal |
Employment - Unfair dismissal - Complaint - Time limit - Employee resigning on promise of reference - Failure to obtain new employment 6 months later because of unsatisfactory reference - Whether “reasonably practicable” to present complaint within 3-month time limit - Whether veracity of employee's account to be determined on preliminary issue of jurisdiction -
In 1997 there was a problem in relation to a cheque used by the applicant to make a purchase, and the police were notified but took no further action. The applicant's employer informed its own internal investigation unit and the employee was interviewed, as a result of which he resigned on 7 January 1998. In June 1998 he obtained new employment subject to a satisfactory reference, but was later told that the offer of employment was being withdrawn because a satisfactory reference had not been received. On 4 August 1998 he presented a complaint of unfair dismissal, contending that he had been told that if he resigned he would be given a reference and that, as he needed to get another job, he had thought that he had better resign. The employment tribunal, having heard the evidence of the applicant only, found that at the time of the termination of his employment the applicant did not believe that he had been unfairly dismissed, and therefore it was not reasonably practicable for him to bring a complaint within the three-month time limit in section 111(2)(a) of the Employment Rights Act 1996.F1
On appeal by the employer:—
Held, allowing the appeal, that, if an employee was induced to agree to resign, or leave voluntarily, by a fraudulent misrepresentation made by a representative of the employer, it was at least arguable that it was the employer who had really terminated the contract of employment; that, on the applicant's account of events, it was reasonable for him to be ignorant during the three-month time limit of a fact, namely, that he was not given a good reference, that triggered and was crucial to his contention that the employer had made a fraudulent misrepresentation to him and proof of that contention was crucial to his right to bring his claim that he was dismissed; that, accordingly, on the applicant's account of events, it was well within the range of decision open to the employment tribunal, on a correct application of the statutory test, to conclude that it was not reasonably practicable for the applicant to present his claim within the statutory time limit; but that, in order to decide whether it was reasonably practicable for the applicant to bring his claim within the time limit, it was necessary to determine whether or not the representation had been made and, if it had, whether he had relied on it, and those disputed issues of fact should not be left to the substantive hearing of the claim; and that, in hearing evidence from the applicant only, the employment tribunal had erred in law and the issue of jurisdiction would be remitted to a differently constituted tribunal (post, pp. 875B–C, 876A–B, 877F–G).
The following cases are referred to in the judgment:
Birmingham Optical Group Plc. v. Johnson [
Churchill v. A. Yeates & Sons Ltd. [
London Underground Ltd. v. Noel [
Machine Tool Industry Research Association v. Simpson [
Martin v. Glynwed Distribution Ltd. [
Murray v. Foyle Meats Ltd. [
Sevenoaks Stationers (Retail) Ltd., In re [
Wall's Meat Co. Ltd. v. Khan [
The following additional cases were cited in argument:
Palmer v. Southend-on-Sea Borough Council [
Sheffield v. Oxford Controls Co. Ltd. [
Interlocutory appeal from an employment tribunal at London (North).
By an originating application dated 4 August 1998 the applicant, Mr. J. S. Sanhotra, complained that he had been unfairly dismissed by the respondent, the Post Office. By a decision sent to the parties on 13 October 1998 the employment tribunal decided, as a preliminary issue, that it had not been reasonably practicable for the applicant to bring his claim within the three-month time limit laid down by section 111(2) of the Employment Rights Act 1996 and that, therefore, the tribunal had jurisdiction to hear his complaint.
By notice of appeal dated 20 November 1998 the respondent employer appealed on the grounds, inter alia, that (1) the tribunal erred in holding that the applicant's resignation retrospectively became a possible dismissal by reason of the fact that he discovered that the employer had breached a bargain alleged to have been agreed at the time of the termination of the applicant's employment (that the employer would provide a satisfactory reference for the applicant) in failing to provide such a reference; (2) the tribunal misdirected itself in law in failing to distinguish between the discovery of a fact that went to the question of whether the applicant had grounds to bring a complaint of unfair dismissal and a fact that went to the question as to whether he had grounds for a complaint of breach of contract or misrepresentation; (3) alternatively, the tribunal's decision that it was not reasonably practicable for the applicant to bring his claim within the three-month time limit was perverse; and (4) the tribunal erred in purporting to find that the applicant was told to resign or be dismissed, because (i) the hearing was to determine whether it was reasonably practicable for the applicant to bring an unfair dismissal claim within three months, not whether he had resigned or been dismissed, (ii) the tribunal only heard evidence from the applicant in relation to the issue, (iii) the tribunal stated that the issue of resignation should be determined at the full merits hearing, not at the preliminary hearing, and, therefore, it heard no evidence from the employer as to whether the applicant had in fact resigned.
The facts are stated in the judgment.
David Craig for the employer.
Damian McCarthy for the applicant.
1 November. The following judgment of the appeal tribunal was handed down.
Charles J. The parties to this appeal are the Post Office (“the employer”) and Mr. Sanhotra (“the applicant”).
1. The appeal is against the decision of an employment tribunal sitting at London (North), the extended reasons for which were sent to the parties on 13 October 1998.
2. The decision of that employment tribunal was that it had jurisdiction to hear the applicant's claim for unfair dismissal, notwithstanding the fact that it was not brought within the three-month time limit set out in section 111(2)(a) of the Employment Rights Act 1996.
3. It is common ground that in reaching that decision the employment tribunal correctly directed themselves to section 111(2)(a) and (b) of the Employment Rights Act 1996.
4. The employment tribunal only heard evidence from the applicant.
5. This appeal was well argued by counsel who appeared on behalf of the employer in the face of some hostility from us to the stance being adopted by his clients because that stance would, if successful, have the result that the serious allegations of fact being made by the applicant would not be determined.
6. At the end of the submissions made by counsel on behalf of the employer we indicated to counsel for the applicant that, although we were unconvinced by the main arguments advanced on behalf of the employer, we had reached the provisional conclusion that: (a) in only hearing evidence from the applicant the employment tribunal had erred in law, and (b) we should remit the issue of jurisdiction to a differently constituted employment tribunal on the basis that, if possible, it should list the case so that if that employment tribunal concluded that they had jurisdiction they would be able to go on and deal with the case. This was the alternative position adopted by counsel for the employer at the end of his submissions.
7. Counsel for the applicant acknowledged the pragmatic force of that result but he sought to persuade us that the employment tribunal had not erred in law in only hearing evidence from the applicant on the issue going to jurisdiction. We shall return to this point but, at this stage, we record that we have decided that we should remit the issue as to jurisdiction to a differently constituted employment tribunal on the above basis as to listing.
The applicant's position8. This is shown by the findings made by the employment tribunal on the basis of hearing evidence only from the applicant. We were told that at the preliminary hearing before this tribunal it expressed the view that these findings do not give rise to any estoppels and thus that in hearing the substantive case the employment tribunal could reach different findings of fact. We can however understand the concern of the employer on this aspect of the case before that view was expressed by this tribunal. We also pause to comment that...
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