Appeal No. EAT/108/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 3 December 1991

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR J A POWELL

	MS P SMITH

MRS U BHATT	APPELLANT

PIONEER PLASTIC CONTAINERS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR LESLIE SAMUELS
 Free Representation Unit
	13 Gray's Inn Square
	LONDON
	WC1R 5JP

For the Respondents	MR IAN GATT
(Of Counsel)
Messrs Rowe & Maw
Solicitors
20 Blackfriars Lane
LONDON
EC4V 6HD

	MR JUSTICE KNOX:  Mrs Bhatt appeals against the majority decision of the London (North) Industrial Tribunal, which sat on the 4th January 1990, and sent its Decision to the parties on the 10th of that month, that the Industrial Tribunal had no jurisdiction to hear her application.  This was on a preliminary point regarding the time at which the Originating Application was presented.	The Originating Application gave the following details of Mrs Bhatt's complaint.  
"The Applicant worked for the Respondents as a packer for 14 years at their old location in Bedfont Middlesex."
The Respondents, were Pioneer Plastic Containers Ltd.  I will call them "the Company".  
"In January 1989, the Company purported to unilaterally vary the Applicant's contract of employment by closing down her place of employment in Bedfont and asking her to work at their new factory in Southall and by changing her job title to that of `machine operator'.

On 31st March 1989, the Applicant resigned from her employment.

Accordingly, the Applicant claims that this was constructive dismissal and that the dismissal was unfair.

In the alternative, the Applicant claims a redundancy payment".

	The Notice of Appearance by the Company revealed that there was a fair measure of agreement on the basic facts.  It stated that its business had been located at Bedfont Lane in Middlesex for many years and that their lease expired on the 31st December 1988 and they had sought in vain to find somewhere suitable close to the old address.  Finally, there was a notice fixed to the notice board, said the Company, on the 23rd March 1988 announcing the removal to Southall within the following twelve months.  They concur in saying Mrs Bhatt moved in January 1989 and stayed until the end of March 1989 and they relied on a claim that she, when she left, said she had obtained a new job in Staines at a higher rate of pay and thanked the Company in her letter of resignation, and they deny that her job title  or the type of work performed by her had changed.  There is therefore some area of conflict between the two parties' positions more especially in relation to the question whether her job title and the type of work that she did had altered.  

	The Industrial Tribunal identified the two relevant provisions regarding time limits.  As regards unfair dismissal the provisions are contained in s.67 of the Employment Protection (Consolidation) Act 1978 subsection (2) provides, so far as is relevant as follows:
"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."

There was never any dispute about the relevant dates.  The effective date of termination was the 31st March 1989.  The date when the Originating Application was presented was the 4th October 1989 it was in fact signed on the 2nd October.  So far as unfair dismissal is concerned therefore the Originating Application was three months and four days out of time and the issue was correctly identified by the Industrial Tribunal as being one whether it was reasonably practicable for the Originating Application to have been presented in time.  

	So far as the claim for a redundancy payment is concerned the time limits are contained in s.101 of the 1978 Act.  Subsection (1) gives six months from what is called the relevant date, an expression which is defined by s.90 of the said Act, and which it is again common ground was that self same date of the 31st March 1989.  There is initially in subsection (1) a period of six months allowed from the relevant date during which a claimant is required to do one of four things, or one of four events are required to happen, they are as follows:
	(a)the payment, that is the redundancy payment, has been agreed and paid
	(b)the employee has made a claim for the payment by notice in writing to the employer
	(c)a question as to the right of the employee to the payment or its amount has been referred to an industrial tribunal and
	(d)a complaint relating to dismissal has been presented by the employee under s.67 to which reference has already been made.
None of those four events or actions occurred in this case within the initial six months but there was only four days between the expiry of that period of six months after the 31st March 1989 and the presentation of the Originating Application on the 4th October.  That meant that the case fell within subsection (2) which provides a second six month period for employees to make claims to redundancy payments.  The subsection provides that an employee shall not by virtue of subsection (1) lose his right to a redundancy payment if, during the period of six months immediately following the period mentioned in that subsection the employee (a) makes such a claim that is referred to in paragraph (b) of subsection (1), that is a claim for a redundancy payment, (b) refers to a tribunal such a question as is referred to in paragraph (c) of subsection (1), that is the claim to a redundancy payment or (c) makes such a complaint as is referred to in paragraph (d) of that subsection, that is the complaint regarding unfair dismissal and that there is a further requirement in subsection (2) that it should appear to the tribunal to be just and equitable that the employee should receive a redundancy payment having regard to the reasons shown by the employee for his failure to take any such step as is referred to in paragraph (a), (b) or (c) of the subsection within the period mentioned in subsection (1) and to all the other relevant circumstances.

	Here again, the situation was perfectly clear in principle, namely that Mrs Bhatt was well within the second six months period, she had made the Originating Application complaint four days after the six months started going and the only issue was whether it appeared to the Tribunal to be, in the words of the subsection:
"just and equitable that she should receive a redundancy payment"

having regard to the reasons shown by her for her failure to take the steps mentioned in the earlier subsection and to all other relevant circumstances.

	The majority of the Industrial Tribunal took the view that neither question should be answered in favour of Mrs Bhatt.  They recognised and found as facts the following:  first of all Mrs Bhatt's command of the English language was not good, she and her husband had resided in this country since 1968 and Mr Bhatt had been continuously in the same job in aircraft maintenance for the whole of that period.  The Industrial Tribunal says this in paragraph 9:
"Both alleged that they were unaware of the employment law provisions although Mr Bhatt was a member of a trade union."

Pausing for a moment there, it might at first sight be thought that that was only a statement of an allegation which the Industrial Tribunal had not found to be substantiated, but that is in fact not right because one finds later on in a passage to which I must come that there is a finding that both Mr and Mrs Bhatt were ignorant as to their rights.  

	The Industrial Tribunal also recorded the fact that before the 31st March 1989 when Mrs Bhatt left her employment Mr Bhatt went to the Unemployment Benefit Office and was told that since Mrs Bhatt was being provided with coach transport she would not be entitled to receive a redundancy payment.  Mr Bhatt's evidence was that Mrs Bhatt was told by a friend that she, the friend, had been successfully assisted by the Citizens' Advice Bureau.  I pause there to note that no date is actually put on the date of that information coming to Mrs Bhatt.  The Industrial Tribunal found that Mr Bhatt went to the Citizens' Advice Bureau at approximately the end of September 1989, he had difficulties in doing that because he worked shift hours and the Citizens' Advice Bureau was only open at certain times of the day, and it was found that he could not bring his wife to the Citizens' Advice Bureau for an adviser to hear her evidence until the 2nd October 1989 and, I have already mentioned, the Originating Application was in fact signed that very same day.

	That is the factual background which the Industrial Tribunal found and there was not much dispute before they came to those findings it would appear, but whether that was so or not, those findings are binding upon us.  

	The majority decision in relation to the unfair dismissal claim, which was the first one dealt with was stated in these fairly short terms:
"The majority members of the Tribunal in the light of three cases Wall's Meat Co Ltd v. Khan [1978] IRLR 499, Dedman  v. British Building & Engineering Appliances Ltd [1973] IRLR 379 and Riley v. (1) Tesco Stores Ltd and (2) Greater London Citizens' Advice Bureau Service Ltd [1980] IRLR 103 find that, although the applicant and her husband were ignorant as to their rights, such ignorance was no excuse.  It was feasible for the applicant to have taken advice.  Citizens' Advice Bureau are well known.  Mr Bhatt had gone to the Unemployment Benefit Office before his wife had left her employment.  He could have gone again and could have sought further advice.  The majority of the Tribunal find that there is no jurisdiction to hear the application that the applicant had been unfairly and constructively dismissed."

	In relation to the redundancy claim there was, again, a majority decision, which is equally briefly stated:
"The majority members of the Tribunal found that the applicant had not complied with any of the requirements of section 101(1) of the Act.  The majority did not find it just and equitable for this period to be extended.  In coming to this decision the Tribunal bore in mind the fact that Industrial Tribunal proceedings were intended to be speedy and that speed is the essence of justice before an Industrial Tribunal.  If the Tribunal allowed this application to proceed to a full hearing it would be open to any applicant to complain that he or she was ignorant of Tribunal proceedings and employment law and could bring a claim for relief well outside the time limit prescribed by the Act.  The majority also considered that, on studying the case papers and the facts which were not disputed, the application would have little prospect of success."

	The minority member shared the majority opinion that neither application had a likely prospect of success but came to a diametrically opposed conclusion on both the unfair dismissal and on the redundancy claims, finding as regards the former that it was reasonable for Mr and Mrs Bhatt to be ignorant of their rights in the light of their isolated ethnic situation and that it would be just and equitable for the redundancy application to be heard and that it was not reasonably practicable for the unfair dismissal application to have been brought in time.  

	It is perhaps worth noting that this was a matter of difference of opinion in the Industrial Tribunal and that makes it all the more likely that the matter was carefully considered between them before they finally disagreed.

	The Appeal was launched on both branches of the Decision and the claim on the redundancy aspect of the matter was taken first.  The submission that was principally relied on was that it was not proper for the Industrial Tribunal to have regard to what was described as the merits of the case ie the statement in the majority's view that the application would have little prospect of success, was a matter which it was improper for them to have regard to.  Reliance was placed on the decision in Hutchinson v. Westward TV (1977) ICR 279 for that.  In our view that decision is authority for almost the exact opposite.  What it does decide is that there is no obligation on an industrial tribunal which is dealing with a similar but not identical question in relation to the time limit in the Sex Discrimination Act 1975, s.76(5) to try the case before coming to a conclusion on whether the complaint should be heard out of time.  The actual provision reads:
"A Court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so."

and the argument that was presented to the Employment Appeal Tribunal was that that expression "in all the circumstances of the case" required the industrial tribunal to hear the entire case,  that is to say, the complaint, before it was able to determine whether or not it had jurisdiction.  Not altogether surprisingly, the Employment Appeal Tribunal upheld the view of the Industrial Tribunal that there was no such obligation, but the Judgment also goes on to consider the question whether it is permissible to have regard to the question whether the complaint is a strong or a weak one.  Phillips J. said at page 282:
"In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of.  No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on.  Certainly it is not required at that stage to try the complaint."

	In our view it is perfectly clear that at that stage the learned Judge was not only saying there was no obligation to try the complaint, which was what was argued before the Tribunal but also saying that it was legitimate if an industrial tribunal so wished, to form a view on whether there was a strong or a weak complaint before them.

	There is of course not involved in that process a final decision.  All that is being done at that stage is the formation of an impression at an interlocutory stage which is something the Courts not infrequently have to do and which in this particular circumstance an industrial tribunal is permitted to do.  We would, in looking at the Section which Mr Gatt pointed out to us is different in terms from s.76(5) of the Sex Discrimination Act, have regard to the fact that the primary emphasis in s.67(2) is to the reason which is put forward for not presenting the Originating Application in the permitted three months.  We would expect that the question whether or not there was a strong case or a weak one will be of considerably less significance than the reason which is adduced for the failure to comply with the time limit.  Subject to that however, it is perfectly clear as we see it, on the actual finding in the case to which we were referred Hutchinson v. Westward TV Ltd that there is no bar on an industrial tribunal considering what it is that appears to be the strength or weakness of the particular claimant's case.

	There is a slight curiosity in subsection (2) of s.101, which is the subsection concerned with redundancy payments, in that the reference is to :
"it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment"

and in this respect it is of course different from the Sex Discrimination Act provision in Hutchinson v. Westward TV.  The concept of it being just and equitable that the employee should receive a redundancy payment is surprising, it seems to us, when one remembers that at an interlocutory stage that is something which has to be decided in the future.  But whether that is to be construed as a reference to the employee being permitted to continue to prosecute his or her claim to a redundancy payment or whether it is a wide description of entitlement to the statutory relief the fact remains that there certainly is no statutory bar on a consideration at an interlocutory stage of the probability of success or failure. 

	 Accordingly we are quite unpersuaded that the Industrial Tribunal committed an error of law in looking at the merits of the case.  It was also submitted to us that if the merits of the case were to be looked at it would be necessary for notice to be given beforehand by the industrial tribunal that this was what they were proposing to do and that therefore the parties should be able to arm themselves with arguments on that score.

	In our judgment that is overstating the functions of the industrial tribunal.  The industrial tribunal has to dispose of the case before it.  The onus is plainly on the applicant to satisfy the provisions of the relevant subsection regarding the lateness of the making of the application and to what extent argument or evidence is adduced in relation to the apparent merits of the case must be a matter for judgment for the applicant or his or her advisers.  It would lay an impossible burden upon an industrial tribunal to have to enumerate all the considerations that they at that stage consider it probable that they will be regarding as significant.  If, as we consider is the situation, the law is that a general preliminary view on the merits is permissible the parties must tailor applications and their arguments to that state of the law and it will of course be a matter for tactical decision how far any submissions are made or evidence called upon that aspect of the matter, but we would at this stage repeat what we said at an earlier point, namely that a consideration of the merits must, in our view, be likely to take very much second place to a consideration of the validity of the excuses for the lateness of the application.  

	The second major criticism that was adduced of the majority view on the lateness aspect of the redundancy payment claim was that what was called the "floodgates argument" really amounted to a fetter on the discretion of the industrial tribunal.  Had we been satisfied that that was so we would of course have accepted that it would be improper for the industrial tribunal to go through such a process for it needs no authority that it is not permissible for a tribunal which has been given a statutory discretion to erect rules which fetter and regulate the way in which it exercises that statutory discretion.  But we are not satisfied that that is what the industrial tribunal did.  It may well be that the "floodgates" argument is not the most impressive in all circumstances but if the tribunal took the view, as we think it was entitled to take, that the main point that was made in this application for time to be extended was ignorance of tribunal proceedings and employment law, coupled no doubt with an ignorance on the part of Mrs Bhatt, rather than Mr Bhatt, of English, then that really was close to the boundary and that if that case went through very, very large numbers of other cases would also follow in the same path.  As we have said this is perhaps not the most compelling argument but it does not in our view contain within it the seeds of the vice that was sought to be identified as a fetter on discretion.  

	It was also said that factors were not taken into account which should have been taken into account and notably two aspects were identified.  First of all that this application was only just outside the permitted time limit.  So it was of course, because it was only four days outside the first six months period so far as the claim in relation to redundancy payment is concerned.

	We are not persuaded that the Industrial Tribunal having set out the dates was not perfectly well aware that there were only four days in it.  It would in our view be discourteous to the Industrial Tribunal to suppose that after they have carefully set out all the relevant dates and the time limit in the statute they had not done the necessary subtraction sum to arrive at the conclusion that there was only four days out of time.  In our view this would be a classic example of the dangers of assuming that because there is no specific mention of a particular point at the passage in the Decision which enshrines the reasons for the Decision that that point was not in the majority of the Tribunal's mind.

	Similarly, with regard to Mrs Bhatt's ethnic background and what is much more significant than her ethnic background is her inability to speak English well, there is a specific finding that her command of English was not good in paragraph 9 of the Industrial Tribunal's Decision and here again it would we think be discourteous to the Industrial Tribunal to assume that they have lost sight of that fact by the time they reach the passage in paragraphs 11 and 13 when they dealt with unfair dismissal and redundancy payments respectively.  We are quite unpersuaded that there was a failure to take those factors into account.  

	Those were the criticisms that were advanced of the decision on the redundancy payment aspect of the matter and we are not satisfied that there is any basis for finding an error of law on the part of the Industrial Tribunal.  It does not of course follow that this Tribunal would all have come to the same conclusion but that is a wholly irrelevant matter.

	I turn then to the question of unfair dismissal and the issue whether it was reasonably practical for the application to be made out of time.  We were referred to two authorities on that score.  The first was Wall's Meat Company v. Khan [1979] ICR 52 at page 60 of which Brandon LJ said this in relation to the statutory provision in s.67(2) which I need not repeat:
"Looking at the matter first without reference to the authorities I should have thought that the meaning of the expression concerned in the context in which it is used, was fairly clear.  The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance.  The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters.  Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months.  If the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.  Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.

On this general view of the meanaing of the expression under discussion, the present case is an example of a mistaken belief by an employee, reasonble held, constituting an an empediment which prevented or inhibited him from presenting his complaint within the period of three months prescribed.

With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all or (b) how to make it or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned." 

	Everything hinges, in our view, in relation to that last paragraph on whether this was a case of reasonable ignorance.  In this case it was specifically found that there was ignorance by Mr, and more importantly Mrs, Bhatt, as to her rights.  The question was whether that ignorance was reasonably based.  There is a specific finding by the Industrial Tribunal that the ignorance was no excuse and that it was feasible for the applicant to have taken advice.  In those circumstances this Tribunal is reduced, if it is to interfere to finding that either there was no evidence at all upon which that finding could be made or that an error of law was made in the way in which it was made.  We can detect no error of law, the issue is a pure one of fact and it seems to us quite impossible to say that there was no evidence upon which such a conclusion could be based.  There was evidence which the Industrial Tribunal stated of a degree of knowledge in that Mr Bhatt before Mrs Bhatt left her employment was given some advice which intrinsically may well not have been accurate but which clearly revealed that there was such a thing as a redundancy payment and that seems to us to be something which is a foundation for the finding that the Industrial Tribunal made.  Whether it is a sufficiently solid foundation as a matter of fact is something upon which different minds might very easily, as they did in this case in the Industrial Tribunal, come to different conclusions but it does make it quite impossible to say that there was no evidence upon which the finding could be made.  Similarly in Dedman v. British Building & Engineering Appliances Ltd [1974] ICR 53 Lord Denning at p.61 said:
"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."

 That really re-states the position in terms of whether there was anything to put Mrs Bhatt on enquiry.  We see no flaw in the Industrial Tribunal treating Mr and Mrs Bhatt for practical purposes as very closely connected.  They were living together and Mr Bhatt had the advantage over Mrs Bhatt of familiarity with the English language and it was clearly right in our view for the Industrial Tribunal to have regard to Mr Bhatt's knowledge as well as Mrs Bhatt's ignorance and we are unpersuaded that there is no evidence upon which the conclusion with regard to what is practically feasible could be validly based.

	Finally, the claim was made that when the Industrial Tribunal said as it did that the ignorance in question was no excuse and that Mr Bhatt having gone to the Unemployment Benefit Office before 31st March 1989 could have gone again and could have sought further advice that that was applying the wrong test and that what needed looking at was the question "should he" rather than "could he".  In our view that misstates the test which we have already quoted from the authorities of Walls Meat and the Dedman cases.  What is to be looked at is what is practicably feasible and that is a question of what can be done rather than what ought to be done, or what should reasonably be done.  Any doubts that there might be on that score should be dispelled by the decision in Bodha v. Hampshire Area Health Authority [1982] ICR 200 where Browne-Wilkinson J. at p.204 emphasised that it is what could be done that has to be looked at rather than what it was reasonable to do.  In those circumstances it seems to us that the criticism of the Industrial Tribunal's Decision in relation to unfair dismissal also fail and we therefore dismiss this appeal.