Appeal No. EAT/557/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4 November 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR R JACKSON

	MISS D WHITTINGHAM

PEARL ASSURANCE PLC	APPELLANTS

MR P C MAKIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS L BOSWELL
(OF COUNSEL)
Geoffrey Delaney
The Pearl Centre
Lynchwood
Peterborough
PE2 6FY

For the Respondent	NO APPEARANCE BY OR
REPRESENTATION ON 
BEHALF OF THE
RESPONDENT

	MR JUSTICE KNOX:  This is an appeal by Pearl Assurance from a decision of the Industrial Tribunal sitting at Nottingham on 1 June 1993 and sent to the parties on 18 June that it was not reasonably practicable for the Applicant before them, a Mr Makin, to have presented his claim within the 3 month limitation period and that it was presented within a reasonable time thereafter.  On that basis the Industrial Tribunal held that it had jurisdiction and left it at that.  The decision is only a preliminary one as to jurisdiction and there is no finding on the substance of the matter of unfair dismissal.  Similarly this appeal is solely concerned with the validity of that decision regarding jurisdiction and does not touch the question of whether there was or was not an unfair dismissal.

	There has been a letter sent to this Tribunal by the Solicitors who had been acting for Mr Makin, the Respondent, in which they say that Mr Makin's finances are insufficient to permit him to afford representation, and that although no discourtesy is intended, there will be no appearance on his behalf but Mr Makin relies on certain dicta, as they are called in the letter, of Brandon L.J. which figure in the Industrial Tribunal's decision.

	We therefore just had the assistance of Counsel on behalf of Pearl Assurance and we are grateful for that, but we have not had the case argued both ways.  We have however sought to investigate particularly such arguments as occurred to us as being ones which might be addressed to us in support of the decision below.

	The facts were of the simplest nature and were virtually totally uncontroversial.  The Industrial Tribunal found that Mr Makin was summarily dismissed on 15 September which was confirmed by letter of 16 September 1992.  He consulted his solicitors.  He also consulted his union and the Industrial Tribunal found that he was aware, as a result of those consultations, of his right to bring a claim before an Industrial Tribunal for compensation for unfair dismissal.  It also found that he was aware shortly after the dismissal that such a claim had to be presented within 3 months of the effective date of termination and we take it to be plain that shortly after must mean very considerably less than 3 months.

	Finally the Industrial Tribunal made findings of fact regarding the reason why he decided not to proceed with his application to the Industrial Tribunal and that was that he had effectively got another job.  He approached another insurance company, the Norwich Union, and received an offer from them of employment.  The Industrial Tribunal had before it a letter from the Regional Manager of the Norwich Union to Mr Makin which said:

		"Our acceptance of your application is not subject to the finding of your appeal with the Pearl Assurance but has been based on references received from Pearl through the usual means required by L.A.U.T.R.O."

and Mr Makin made a last effort before deciding not to proceed with his application to the Industrial Tribunal by writing to Pearl Assurance saying inter alia "Before I make a final decision in this regard I would like to know whether Pearl are prepared to make a payment to compensate me for my losses".  The answer to that was in the negative but nevertheless Mr Makin decided not to apply to the Industrial Tribunal.

	Then disaster struck because the Norwich Union terminated his contract on 3 February 1993 without giving any specific reasons for doing so and indeed the reason why they did so is, we think, irrelevant, but by that time of course the 3 months had long since gone past since the effective date of termination in September 1992, and the Originating Application in this matter was presented on 8 February 1993 which is evidently well out of the 3 month period.

	The Industrial Tribunal having found the facts in very much the terms which I have related, quoted the judgment of Brandon L.J. in Walls Meat Co Limited v Khan [1978] IRLR 499 and that decision includes at paragraph 44 the passage which the Industrial Tribunal quoted.  It reads as follows:

		"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, 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 circumstances have given him."

	The Industrial Tribunal inspired by that reference to the possible reasonableness or unreasonableness of mistaken belief investigated how far they thought that Mr Makin's activities were reasonable and they came to the conclusion, which would be binding on us as a matter of fact, that he acted reasonably in consulting his solicitor and in deciding not to proceed.  They found that his approach to the Pearl Assurance was in itself not an unreasonable one having regard to what the Norwich Union had previously intimated to him and in particular the intimation that the Norwich Union had given him which was that their acceptance of his application was not subject to the finding of his appeal with the Pearl Assurance.

	The Industrial Tribunal took the view that that letter gave the impression there would not be any further difficulty and that when the Norwich Union therefore changed its mind and terminated his contract, the whole basis of his decision not to proceed against the Respondents was removed and he was, they say:
		"...in the absence of an application to the Industrial Tribunal, entirely without remedy."

That led to their conclusion:

		"We take the view that the facts of this case come within the words of Brandon L.J.  The applicant at the time he decided not to proceed was under a mistaken belief with regard to an essential matter, namely the security of his employment with Norwich Union.  That made it not reasonably practicable for him to present his application to the Industrial Tribunal."

	In our judgment that is a decision which cannot stand as a matter of law.  It is important not to lose sight of the statutory provision contained in section 67(2) of the Employment Protection (Consolidation) Act 1978 which reads:

		"Subject to subsection (4),[which is not relevant] 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."

	In our view the subsection is directed at what is not reasonably practicable in the way of presentation of the complaint and the words of Brandon L.J. which contain an acute analysis of what is involved in that concept, are directed as he, in our view makes very clear, at impediments preventing or inhibiting the proposed Applicant from presenting his complaint.  In our judgment there is a very clear demarcation between that type of impediment which is an obstacle to the presentation of the complaint within the relevant period on the one hand and circumstances which found an act of volition by the proposed Applicant not to make such a presentation.

	It may be that an Applicant may decide for a variety of reasons deliberately not to present a complaint within the permitted period but unless there is some question of his reasoning in coming to that conclusion being affected by something which has been said to him by his employer, it seems to us that the validity of his decision as a matter of economics or of sensible behaviour is an irrelevance unless the matter relied upon is something which prevents or inhibits the presentation of the complaint.

	In our view there is no doubt which side of the line this case falls on because it was an act of quite conscious volition that Mr Makin took in deciding not to make his application and we therefore can see no basis upon which Lord Justice Brandon's reference to mistaken belief regarding essential elements can apply to the reasoning upon which a conscious decision not to make an application was founded. 

	We have considered authorities indicating that the questions that arise under section 67(2) of the 1978 Act inhibit this Tribunal from interfering because they raise issues of fact.  This was in fact said by Brandon L.J. himself in Walls Meat Co Ltd v Khan when he pointed out that the issues that arise are generally issues of fact.  It was pointed out at greater length and conceivably more forcefully by May L.J. in Palmer v Southend-on Sea Borough Council [1984] ICR 372 at p.385 when the Lord Justice said:

		"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie."

and he then recited the circumstances upon which an industrial tribunal might wish to make its findings.

	Those are concerned with the question of what is or is not reasonably practicable, not  only as regards the finding of the primary facts but also as regards the evaluation whether the primary facts establish the absence of reasonable practicability of presenting a complaint within the period permitted.  There is plainly a decision to be made on fact with which this Tribunal should not interfere but in this case it seems to us that there has been an error of law in a failure to identify the nature of events which are capable of constituting matter leading to a conclusion that it was not reasonable practicable for the complaint to be presented in time. 

	In our view, as a matter of law, for the reasons that we have earlier given, it was irrelevant to take into account the change of mind by the Norwich Union because that did not and could not constitute an impediment preventing or inhibiting Mr Makin from presenting his application and we are therefore satisfied that the observations of May L.J. in Palmer v Southend-on-Sea Council should not be regarded as preventing this tribunal from acting upon what it feels is a clear error of law.

	For those reasons we allow this appeal and in the circumstances there is only one possible conclusion namely that the application was not presented in time and must be dismissed.