Walls Meat Company Ltd v Khan

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SHAW,LORD JUSTICE BRANDON
Judgment Date24 October 1978
Judgment citation (vLex)[1978] EWCA Civ J1024-1
Docket NumberE.A.T.12

[1978] EWCA Civ J1024-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Employment Appeals Tribunal

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Shaw and

Lord Justice Brandon

E.A.T.12
Amanullah Khan
Applicant (Respondent)
and
The Wall's Meat Company Limited
Respondents (Appellants)

MR. A. CAMPBELL, Q.C. and Mr. A. HILLIER (instructed by Messrs. Leak Almond & Parkinson, Solicitors, Manchester) appeared on behalf of the Applicant (Respondent).

MR. A. IRVINE, Q.C. and MR. R. FIELD (instructed by Messrs. Stanleys & Simpson, North, Solicitors, London, agents for Messrs. March Pearson & Skelton, Solicitors, Manchester) appeared on behalf of the Respondents (Appellants).

THE MASTER OF THE ROLLS
1

Mr. Amanullah Khan comes from Bangladesh He joined the Wall'S Meat Company on the 28th November, 1973 as a labourer. He worked at night. Over two years later he got at odds with some of his workmates. It was followed by a fight in the toilet. Mr. Khan says he acted in self-defence. He hit his opponent so hard that it fetched blood. The section manager enquired into the affair. The shop steward was present Mr. Khan was sacked on the spot. The other man was not sacked. Mr. Khan appealed to the personnel manager. Then to the manager himself. Each rejected his appeal. The shop steward told him that they could do nothing more for him. So he left.

2

That was on the 22nd August, 1976. Nine days later he went to the labour exchange to get his unemployment pay. They told him that he would not get it for six weeks, but that it would go to a tribunal. He thought that this referred to his dismissal by the company.

3

Now there were two tribunals before which his case might have gone. One was the local tribunal under the National Insurance Acts. The other was the industrial tribunal under the Trade Union and Labour Relations Act 1974. The insurance tribunal would deal with a claim for unemployment benefit. The industrial tribunal would deal with a claim for unfair dismissal.

4

But Mr. Khan did not know the difference between these two tribunals. He thought there was just one tribunal which would deal with his claim.

5

On the 19th November, 1976 (just before the three months was up) he went to the labour exchange and saw a notice which told him what to do if he was unfairly dismissed. It said he must commence his proceedings within three months of hisdismissal. That did not worry Mr. Khan. He thought that his claim was already on its way before the tribunal - thinking there was only one tribunal to deal with it. The three months from his dismissal expired on the 22nd November, 1976.

6

On the 9th December, 1976 his case came before the local tribunal under the National Insurance Acts. That tribunal found that he was entitled to unemployment benefit. They said:

7

"There is a conflict between the reasons given by the Employer for dismissal and the explanation given by the Claimant. He does not deny that there was a struggle but says he was attacked and was defending himself. On balance we find that the onus of proof on the Department to establish misconduct has not been discharged".

8

At that hearing Mr. Khan told the insurance tribunal that he was complaining about being unfairly dismissed. They said: "We cannot deal with a claim for unfair dismissal. You should go to a solicitor and put your case before an industrial tribunal.

9

So Mr. Khan started to look for a solicitor. He went to a community centre but they could not help. On the 17th December, 1976 he received a written decision from the insurance tribunal. He did nothing for over a fortnight because there was a long holiday that year. It lasted from the 21st December, 1976 to the 3rd January, 1977. Then he saw a firm of solicitors on the 4th January, 1977, the very first day on which the offices were open after the holiday.

10

The solicitors acted promptly. On the 7th January, 1977 they sent off the completed application form for compensation for unfair dismissal. In their covering letter they said: "Our client was under the impression that the referenceto the local National Insurance Tribunal meant that he did not have to make a separate claim for unfair dismissal through an industrial tribunal".

11

On those facts the industrial tribunal held that he was not barred by the time limit of three months: but he could rely on the escape clause. The employment appeal tribunal affirmed the decision but invited the employers to appeal. Mr. Justice Phillips said on the law: "A really new authoritative statement might be useful". It is pretty plain that he thought that the industrial tribunal had been too benevolent in extending the time.

12

THE LAW

13

The time limit is imposed by the Trade Union and Labour Relations Act 1974, Schedule 1, paragraph 21(4):

14

"An industrial tribunal shall not consider a complaint., 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 when it is satisfied that it was not reasonably practicable for the complaint to be presented within i; he period of three months".

15

Under the previous clause which was considered in Dedman's case (1974) 1 Weekly Law Reports 171, the time limit was one month. That was unduly short. Now that time is extended to three months, there is less reason for granting an indulgence to a complainant. We know also that notices are now exhibited in labour exchanges and elsewhere giving clear warning as to the need for making a claim within three months. In these circumstances, the industrial tribunals can and should, I think, be fairly strict in enforcing the time limit. I infer thatMr. Justice Phillips thought so too: and his knowledge and experience of these cases is of the greatest value.

16

This having been said, however, I think the interpretation which this court gave in Dedman'S case to the previous clause is applicable to the present clause.

17

The cases which have given rise to some difficulty have been those where a man is dismissed for stealing or some other criminal offence. He is charged with it before the magistrates: and does not make a claim for unfair dismissal for some time. Perhaps not until after he has been acquitted. In these circumstances, I would myself be in favour of the view taken by the employment appeal tribunal in Norgett v. Luton Industrial Co-operative Society Ltd. (1976) Industrial Cases Reports 440; by Mr. Justice Phillips in the present case; and by the majority of the Court of Appeal in Porter v. Bandridge Limited (1978) 1 Weekly Law Reports 1145, and against the view taken by the employment appeal tribunal in Union Cartage Coal Limited v. Blunden (1977) Industrial Cases Reports 420. It seems to me that the reaction of the ordinary man who is so charged with theft would be; "It'S no good my claiming for unfair dismissal whilst this charge is still outstanding against me. I will wait and see what happens to it before making a claim". If that be his state of mind, then he is time-barred as soon as the three months have elapsed without his presenting a claim. It was reasonably practicable for him to present his complaint (of unfair dismissal) within three months. His only reason for not doing so was because of the outstanding charge. That is not an acceptable reason for saying that it was not "reasonably practicable" to present his claim within the three months. I would venture to take the simple test given by themajority in Dedman'S case (1974) 1 Weekly Law Reports at page 177. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights - or ignorance of the time limit - is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences. That was the view adopted by the employment appeal tribunal in Scotland in House of Clydesdale Limited v. Foy (1976) Industrial Relations Law Reports 391 and in England in Times Newpapers v. O'Regan (1977) Industrial Relations Law Reports 101 - decisions with which I agree.

18

The present case is not one where the man was ignorant of his rights or of the time limit. He was aware of them, but he thought quite naturally that his claim was already lodged and was being processed before the appropriate tribunal. He continued in that state of mind until he was told on the 9th December, 1976 - after the three months had expired - by the local insurance tribunal that he had to lodge a complaint with the industrial tribunal. That seems to me to afford just cause or excuse: such that it was open to the industrial tribunal to hold that it was not "reasonably practicable" to present it within the three months.

19

So the tribunal had then to go on and consider whether it was presented "within such further period as the tribunal considers reasonable". This was very much a matter for the industrial tribunal. I see nothing wrong in their extending the period - in the first instance until the 9th December, 1976, when the position was explained to him - and then untilthe 10th January, 1977 when his complaint reached the central office of tribunals. I see no error of law in the Industrial tribunal. I would dismiss this appeal.

20

In parting from this case, I must say that I regret the volume of case law which has accumulated about this time limit for unfair dismissal. There are other statutes in which the courts are given a discretion to extend a time limit: and they operate successfully without attracting long arguments on facts or on law. I would like to suggest that some limit be placed on the reporting of these cases. They all turn...

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