Schultz v Esso Petroleum Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE POTTER,LORD JUSTICE BROOKE |
| Judgment Date | 18 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0318-4 |
| Docket Number | EATRF 1998/0461/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 1999 |
[1999] EWCA Civ J0318-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London W2A 2LL
Lord Justice Stuart-Smith
Lord Justice Potter
Lord Justice Brooke
EATRF 1998/0461/3
MR PATRICK BLAKESLEY (instructed by Messrs Sohal & Co, London W3 8PP) appeared on behalf of the Appellant.
MR COLIN WYNTER (instructed by Messrs Lovell White Durrant, London EC1A 2DY) appeared on behalf of the Respondent.
I will ask Lord Justice Potter to give the first judgment.
This appeal concerns the interpretation of an application of section 111(2)(b) of the Employment Rights Act 1996 and Article 7C of the Industrial Tribunals Extension of Jurisdiction Order 1994, and in particular the phrase "reasonably practicable" appearing therein.
The appellant appeals against the decision of the Employment Appeal Tribunal ("EAT") which by a majority decision dismissed the appellant's appeal against the decision of the London South Industrial Tribunal ("IT") on 23 July 1997, the chairman sitting alone, that the IT did not have jurisdiction to hear the appellant's complaint of unfair dismissal and breach of contract. As the second tier appellate court our intention is directed to the correctness of the decision of the IT rather than that of the EAT (see Hennessy v. Craigmyle and ACAS [1986] IRLR 300 per Sir John Donaldson at 305.25).
The case is an unusual one. The relevant facts as found by the IT are as follows. The appellant was employed by the respondents (Esso) on 24 January 1977. In August 1994 he became sick with depression and was off work until his dismissal in July 1996. He had improved somewhat in 1995 but remained off sick, and from 21 December 1995 he was unable to leave his house. On 5 March 1996 his wife and a friend instructed solicitors to advise on his employment position and the possibility of a tribunal claim was discussed.
On 15 July 1996 there was a disciplinary hearing at his work, which the appellant did not attend because he was too depressed to do so. Esso accepted written representations made on his behalf but the outcome of the hearing was that he was dismissed, the effective date of termination of his employment being 25 July 1996. On 30 July 1996 his solicitors sent to Esso a letter of appeal prepared by them and signed by the appellant. On 11 September the solicitors wrote explaining that he would submit written representations for his appeal in due course.
In the meantime, at the start of July 1996 the appellant had sent a sick certificate certifying his unfitness for work and the likelihood this would last for a further period of three months. He was eventually signed fit for work by his general practitioner on 16 February 1997.
In March 1997 his solicitors wrote to Esso so advising them and raising possibility of his return. They asked about the on-going disciplinary proceedings. On 1 March Esso wrote to the solicitors stating that they had concluded that the disciplinary process had come to an end, not having heard from the appellant for a period of three months. On 1 April the solicitors replied stating that if the appeal proceedings were not reinstated an application would be made to the IT. On 10 April Esso replied to the effect that they were not going to reinstate the disciplinary proceedings and the originating application was presented to the IT on 17 April 1997.
The three month period permitted for the presentation of the application had expired on 24 October 1996. In relation to that period the IT found that between 25 July, the date of his dismissal, and 11 September 1996, a period of some seven weeks, the applicant was sufficiently well to give instructions to his solicitors but for the balance of the period of three months, which was some six weeks, he was too ill to do so. Once he became well enough in February 1997 there was a further lapse of some two months before his application was presented.
Section 111(2) of the Employment Rights Act 1996 provides that:
"…an industrial tribunal shall not consider a complaint [of unlawful dismissal] under this section 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."
Article 7 of the Industrial Tribunals Extension of Jurisdiction Order 1994 provides:
"An industrial tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented—
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or
(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable."
The IT decision
Thus the IT had to decide, first, whether it was satisfied that it was not reasonably practicable for the complaint to be presented within three months of the effective date of termination, ie by 24 October 1996; and, if so satisfied, it had to decide whether the complaint was presented within such further period as it considered reasonable.
The chairman's conclusion on those matters were set out in paragraphs 10 to 12 of the IT decision as follows:
"10. I noted that the effective date of termination was 25 July 1996. On 30 July 1996, the solicitors for the Applicant had written an appeal letter on his behalf, presumably as a result of instructions being received from him. Furthermore, the solicitors had written on 11 September 1996, again presumably on his instructions, to the effect that as he was not well enough to attend the disciplinary appeal, the Applicant would be sending in written representations.
11. Thereafter, I accept that the Applicant was no longer sufficiently well enough to give instructions to his Solicitors until February 1997. However, the period between 25 July and 11 September 1996 is a period of some 7-8 weeks, during which it appears that the Applicant was sufficiently well to give instructions to his Solicitors. His Solicitors would, of course, have been aware that the three months' time limit is not stayed pending any appeal against dismissal. It appears to me that in those circumstances during that period it was reasonably practicable for the Applicant to present complaints of unfair dismissal and breach of contract to the Tribunal. In those circumstances, I find that the Tribunal does not have jurisdiction to consider these complaints.
12. If I am wrong on that, then it might be of assistance to set out what my decision would have been with reference to whether or not the proceedings had been presented within a further reasonable period. I have concluded that after the solicitor's letter of 11 September 1996, the Applicant was not sufficiently fit to give them instructions and therefore after that period was not in a position to issue proceedings in the Industrial Tribunal. The unfitness continued until 16 February 1997. Having regard to the fact that he had presumably then arranged to provide further instructions to his Solicitors and wrote to the Respondents on 4 March 1997, and on the fact that the Solicitors sought to pursue and then re-open the Disciplinary Appeal proceedings, until they were told that this was not possible on 10 April and also having regard to the fact that there is no evidence that the Respondents would have been prejudiced by the delay in issuing these proceedings, I would have concluded that the proceedings had been issued within a further reasonable period."
Submissions of the parties
The grounds of appeal in this case are essentially that the decision of the IT was perverse or wrong in law on the following basis. Mr Blakesley for the appellant has relied upon the judgment of Lord Justice May in Palmer and another v. Southend-on-Sea Borough Council [1984] 1 All ER 945 in which, dealing with section 67 of the Employment Protection (Consolidation) Act 1978, the forerunner of section 111 of the 1996 Act, he stated at 384F to 385F, quoting Mr Justice Browne-Wilkinson in Bodha's case [1982] I.C.R. 200 at 204:
"'The statutory test remains one of practicability. The statutory words still require the industrial tribunal to...
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