Appeal No. EAT/770/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9th February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J R CROSBY

	MR R JACKSON

THOMAS COOK GROUP LIMITED	APPELLANTS

WENDY FRANCES BARZILAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J CAVANAGH
(Of Counsel)
Messrs Hegarty & Co
48 Broadway
Peterborough
IE1 1YW

For the Respondents	MR W BIRTLES
(Of Counsel)
Messrs Martin Nossel & Co.
10-12 Southernhay
Basildon
Essex
SS14 1EL

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from the decision of the Industrial Tribunal held at London (South) on the 15th September 1992.  The Industrial Tribunal unanimously decided that there was jurisdiction to hear a complaint by Miss Barzilay against her former employer, The Thomas Cook Group Limited.  The complaint was of unfair dismissal brought pursuant to the provisions of the Employment Protection (Consolidation) Act 1978.  The question on jurisdiction arose out of the fact that Miss Barzilay presented her complaint to the Industrial Tribunal one day after the expiration of the 3 month time limit set by Section 67(2):
"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."

The Originating Application was presented to the Industrial Tribunal on the 17th March 1992 complaining of unfair dismissal on the 17th December 1991.

	The question for the Industrial Tribunal was whether or not it was reasonably practicable for Miss Barzilay to present her complaint before the end of the 3 month period.  

	The Tribunal stated in paragraph 6 of its decision:
"On these facts,"

(that refers to the facts set out in paragraphs 3, 4 and 5 of the decision)
"we find that it was not reasonably practicable for Miss Barzilay to have presented the application within three months from the effective date of termination and we consider it reasonable for the presentation to have taken place one day late.

7.	We find, therefore, that there is jurisdiction to consider this complaint which may now proceed to a full merits hearing."

	The Full Reasons for the decision were notified to the parties on the 13th October 1992.  Thomas Cook Group were dissatisfied with the decision and gave Notice of Appeal on the 16th October 1992.  We are, therefore, faced on the 9th February 1994 with the highly unsatisfactory position that a complaint in relation to a dismissal over three years ago is still in its initial stages.

	In order to decide the appeal it is necessary to refer to the facts found by the Tribunal in paragraphs 3, 4 and 5 of its decision:
"3.	Miss Barzilay became employed by the Respondents as a Foreign Exchange Cashier in London on 11 September 1978.  She was dismissed on 17 December 1991 with twelve weeks' pay in lieu of notice, that date being the effective date of termination.  Two days or so later, she applied for unemployment benefit, and was informed that in view of the payment she had received, she was disentitled to such benefit for three months and was advised by a clerk in the Unemployment Benefit Office to return there at the end of that time to make her claim.

4.	A few days before 16 March 1992, she returned to that office, was told that she had a clear case of unfair dismissal, was handed an application form to enable her to present a complaint, was given an explanatory booklet and informed that she would not be eligible for unemployment benefit unless she instituted unfair dismissal proceedings.  Until then she told us that she did not think she had a case.  She was not told that there was a time-limit and was not aware of it.

5.	Two or three days later, she completed the application form without assistance.  She could not remember whether she had read the booklet before or after she filled in the form, but it was not until she had read the booklet that she realised that there was a time limit.  She then posted the form on 16th March, which was the last day of the three months' limitation period and it was received at Central Office on the next day, one day out of time."

The Notice of Application was signed by Miss Barzilay, and dated 13th March 1992, a Friday.  

	The form was not posted until the 16th March, a Monday.  Nothing is stated in the findings of fact as to why Miss Barzilay did not post the form on the day on which she filled it in, signed it and dated it.  This appears, at first sight, to be an omission in the facts stated in paragraph 5 of the decision.  The facts recited go from the statement that she completed the application form without assistance to the fact that she posted the form on the 16th March.  

	The case has been well argued on both sides, a refreshing experience.  The arguments are finely balanced.  The argument on behalf of Thomas Cook Group has been presented by Mr Cavanagh with the help of an excellent outline argument.  Although the submissions are set out with some elaboration the simple point is that the conclusion in paragraph 6 does not follow from the facts set out in the previous paragraphs.  Indeed, having read paragraphs 3, 4 and 5 one would expect paragraph 6 to read: "On these facts, we find that it was reasonably practical for Miss Barzilay to have presented the application within three months."  Mr Cavanagh submits that paragraph 6 is perverse.  It is so unreasonable in purporting to be based on the facts, found that no reasonable tribunal, properly directing itself in the law and addressing itself to the facts found, could have reached this decision.  He accepts, quite correctly, that perversity appeals are rarely allowed.  In an appeal based on this ground this Tribunal must constantly be careful not to substitute its own view of the position for that of the industrial tribunal.  It is not a question of this Tribunal disagreeing with the Industrial Tribunal or thinking that the result is unjust.  This Tribunal has to be satisfied that the decision reached is indefensible in fact and law, is wholly irrational or flies in the face of properly informed logic.  This, he submits, is a case where it is appropriate to make one of these rare interventions.

	He pointed to the case law on Section 67(2) which, emphasises that the Industrial Tribunal should, in cases which raise time limit points under Section 67(2), investigate the substantial cause of the employee's failure to comply with the statutory time limit.  The cases have decided that an employee's ignorance of his rights, or ignorance of the existence of a time limit is not regarded as a cause or excuse for failing to comply with statutory time limit unless it appears that the employee, or the advisers of the employee, could not reasonably be expected to be aware of them.

	He submits that the Industrial Tribunal's finding that it was not reasonably practicable for Miss Barzilay to present her claim on or before the 16th March flies in the face of "properly informed logic" for a number of reasons.  Miss Barzilay held a responsible position with the employers for 13 years.  It cannot be right that the fact that a person has chosen not to explore the possibility of an unfair dismissal claim prevents time running for the purposes of Section 67(2).  The principal circumstances in which it will not be reasonably practicable to bring a claim within the three month period are cases quite different from this;  for example, cases where the employee reasonably, but mistakenly, believes that a claim has been made, or where the employee has been misled by tribunal staff about his rights or about the time limits, or where the application has been lost in the post, or where the employee was ignorant of the very existence of the jurisdiction over unfair dismissal and such ignorance was, in all the circumstances, reasonable.  Miss Barzilay does not fall within any of these cases.  She did not decide to bring a claim for unfair dismissal until she made her second visit to the unemployment benefit office in March.  There was no suggestion that she was unaware of the right to claim unfair dismissal.  He submits that it would be surprising if she were unaware.  

	Mr Cavanagh submits that this Tribunal should have looked in a more focused fashion at the substantial causes of failure to present her claim in time.  The substantial causes were cumulative;  they were her failure to read the explanatory booklet for several days after she had received it on her visit to the unemployment office;  her failure to complete the Originating Application for two or three days after being supplied with it by the unemployment office; and her failure, even then, to post her Originating Application for a further three days.  For all these reasons, he submitted, that the Industrial Tribunal should have found there was substantial fault on Miss Barzilay's part which led her to fail to comply with the time limit. It was reasonably practicable for her to present her application in time.  She had given no explanation for her failure to act promptly after her second visit to the unemployment office.

	The submissions were supported by citation of the relevant authorities.  On the crucial question under Section 67(2) there is no important difference between Mr Cavanagh and Mr Birtles about the relevant law.  

	Mr Birtles emphasised, as one would expect, that the question whether or not it is reasonably practicable to present a claim in time is one of fact.  Questions of fact are for the industrial tribunal.  There is no appeal from the industrial tribunal on fact.  The appeal is only for error of law. The Employment Appeal Tribunal will be slow to interfere with the decision of the industrial tribunal on a question of time limits.  

	Mr Birtles made a number of preliminary points which cannot in any way, in our view, be decisive of the appeal but it is important to note them.  He points out that at the hearing Miss Barzilay appeared in person, whereas Thomas Cook Group was represented by a solicitor.  We make it clear that that cannot give rise to a presumption of disadvantage in favour of a person who appeared "in person".  In such cases every effort is made by an industrial tribunal, in particular, by the chairman, to make sure that the unrepresented litigant is not disadvantaged.  He submitted that in this case Miss Barzilay had, at a late stage, discovered something which changed her existing belief that she had no valid claim into a belief that she had a valid claim and it was not reasonably practicable for her to present a claim until she came to believe that she had a valid claim.  She did not have that belief until she made her visit to the unemployment office in March.  She did not know she had a viable claim until a few days before the 16th March 1992.  She completed the form on the 13th March 1992.  She did not, according to the decision of the Industrial Tribunal, remember whether or not she had read the booklet before or after she filled in the form.  But it was only after she read the booklet that she realised there was a time limit.  Mr Birtles accepted, that the Application was not posted until the 16th March.  He submitted that the Industrial Tribunal inferred that Miss Barzilay had not read the booklet until the 16th March. That was an inference it was entitled to make having heard and seen Miss Barzilay give evidence.

	We are not able to accept that such an inference was made by the Industrial Tribunal.  The position is that there is a gap in the findings of fact in paragraph 5 of the decision as to why she did not post the letter on the 13th March.  The Industrial Tribunal did address itself to the question that she had not appreciated the time limit until she read the booklet.  But there was no finding of fact as to when she had read the booklet it was a matter that the Industrial Tribunal simply did not address.

	In the end Mr Birtles, fell back on points which commonly succeed in these cases:  that the decision of the Industrial Tribunal was supported by some evidence. It was not contrary to uncontradicted evidence. It was a decision on a question of fact and was not appealable.

	We are unable to accept Mr Birtles' submissions.  The conclusion of fact in paragraph 6 of the decision is one that simply does not follow from "these facts" as stated in the earlier paragraphs in the decision.  It is impossible to fathom from this decision why this Industrial Tribunal concluded that it was not reasonably practicable for Miss Barzilay to have presented an application, completed and signed by her, on the 13th March 1992 before the expiration of the three month period on Monday, 16th March 1992.

	The view of this Tribunal is that this decision may either be characterised as perverse, since it flies in the face of the law relating to Section 67(2) and the facts found by the Industrial Tribunal; or, it may be characterised as flawed by some undisclosed misdirection of law that led an experienced Industrial Tribunal to an indefensible conclusion on the facts found by it.

	The argument on the appeal then shifted because the question arose, once we had indicated that we were likely to allow the appeal, as to whether the matter should be remitted to the Industrial Tribunal or whether we should substitute our decision for that of the Industrial Tribunal, and hold that it was reasonably practicable to present the application within three months, with the consequence that Miss Barzilay's application for unfair dismissal would be dismissed for want of jurisdiction.  We have heard interesting arguments on this point, not specifically dealt with in either of the skeleton arguments. In our view, the crux of this matter is how we should exercise our discretion on allowing the appeal.  The legal position is easier to state in statutory terms than it is in terms of case law.  The position under the statute is quite simple.  It is provided in Schedule 11 to the 1978 Act, paragraph 21(1):
"For the purpose of disposing of an appeal the Appeal Tribunal may exercise any powers of the body or officer from whom the appeal was brought or may remit the case to that body or officer."

There is, an unfettered discretion as to how to deal with the case. Like all discretions reposed in judicial bodies it must be exercised judicially, that is, by regard to well established principles and practice and to relevant factors, and disregarding irrelevant factors.

	Reference has been made to authorities which draw attention to the distinction relied upon by Mr Cavanagh between cases where an appeal is allowed, on the grounds of perversity, and cases where an appeal is allowed on the grounds of a misdirection in law or on the grounds that there was no evidence to support a particular conclusion or finding of fact.  The general proposition is, as summarised in "Harvey on Industrial Relations and Employment Law" Section X, p.115 and p.116 - is that a general distinction may be drawn between the two types of case mentioned.  It is pointed out in "Harvey" at the pages that the Employment Appeal Tribunal has power to interfere with a tribunal's decision on three grounds:  first, misdirection in law, or misunderstanding the law or misapplication of it;  secondly, no evidence to support a particular conclusion or finding of fact;  thirdly, that the decision was either perverse in that it was one that no reasonable tribunal, directing itself on the law, could have reached or alternatively was one which was obviously wrong.

	In relation to the disposal of an appeal, as opposed to the grounds on which an appeal can be brought, there is a further discussion in "Harvey" in Section X at pages 125 and 125A.  The general point is made, on the basis of Court of Appeal authorities, that where the Employment Appeal Tribunal concludes that a decision is plainly, and unarguably, wrong on the facts found by the tribunal, and those facts do not require amplification or reinvestigation, then it is inappropriate to refer the matter back to the tribunal.  In such a case the Employment Appeal Tribunal is entitled and bound to substitute its own decision based on a correct application of the law to the facts.  On the other hand, it is observed, again by reference to some of the same cases, notably O'Kelly & Others v. Trusthouse Forte plc [1983] ICR 728, that a case may be remitted to an industrial tribunal where it is necessary for the purpose of enabling that tribunal to complete its fact finding or decision making role following the correction of an error of law.  Remission may also be ordered, indeed, it ought to be ordered where the tribunal's reasons are unclear or inadequate or the Employment Appeal Tribunal is unable to ascertain precisely how it reached its decision.

	In this case, it was argued on behalf of Thomas Cook Group, that this is, and always was, a perversity case.  Mr Cavanagh referred us to the passages in the Notice of Appeal and in his skeleton argument to bear that out.   

	For Miss Barzilay, Mr Birtles contended that it really is a case of a misdirection in law producing a position where the conclusion stated in paragraph 6 of the decision is not supported by the findings of fact which it refers.

	We prefer not to have a discretion straight-jacketed by having to put it into one pigeon hole rather than another.  The fact is, for the reasons already explained, that the decision in paragraph 6 is a decision primarily of fact, based on the earlier findings of primary fact. It is indefensible because the conclusion, however it is characterised, does not follow from the facts previously set out, when one correctly appreciates the statutory provisions in Section 67(2) as interpreted by case law.  Whether this is characterised as perversity or as misdirection of law, or as conclusions contrary to the facts, the crucial point, in our view, is that there is a gap in the findings of fact on a matter crucial to the decision.  It is, in our view, crucial to examine why Miss Barzilay did not post the form, which she signed and dated on Friday, 13th March, on that day.  Why did she delay the posting until a late post on Monday, 16th March 1992?

	We have the Chairman's Notes.  From the cross-examination notes it appears that, having been referred to the date on the Application as Friday 13th March, Miss Barzilay was asked why she did not post it on that day.  The Chairman's Note says:
"I don't know why I didn't post it on Friday.

I may have filled the form in, read the booklet and posted it.  I know I did not fill it in on the same day as I got it.

I wanted to make sure that I had filled it in correctly."

That reads as though it is offered as an explanation why it was not posted on the Friday.  The difficulty this Tribunal has, having read those Notes and having noted the gap in paragraph 5, is how it can decide the question of reasonable practicability without referring the matter to a fact finding body.  The Industrial Tribunal failed to make, a crucial finding of fact.  We do not think it is satisfactory to adopt the course invited by Mr Birtles, and use the notes to make an inference.  On such a matter, a clear finding of fact is essential.

	We, therefore, decline to substitute our own decision that it was reasonably practicable for Miss Barzilay to have presented her application within the three months. 

	We shall allow the appeal and remit the matter to the Industrial Tribunal to be heard by the same Tribunal if possible;  if not, by a tribunal constituted afresh by the direction of the Regional Chairman.

	For reasons which will be obvious, we are reluctant to adopt this course.  Two years have passed since the termination of Miss Barzilay's appointment.  The case is still in its infancy.  There will be inevitable delay in the matter going back to the industrial tribunal. We have fully in mind the points made by Mr Cavanagh about the prejudice to his clients in adopting this course.  Their position is that they have fought the matter of jurisdiction before the Industrial Tribunal and have incurred costs which they will not be able to recover.  They have had to bring an appeal, which has succeeded.  There will be further costs which are irrecoverable.  There will be prejudice to Thomas Cook in inflicting on them a third hearing, with consequences.

	We have to balance against that, however, the difficulty of this Tribunal coming to a decision when a crucial finding was not made by the Tribunal below and the possible injustice to Miss Barzilay.  We put out of account that she appeared "in person".  That is something she chose to do.  Special favours are not conferred on litigants "in person" when their case arrives here.  The real point is that she has a grievance.  It has not been investigated on the merits.  It may never be investigated on the merits.  It is unsatisfactory that the case should be halted at the jurisdiction stage unless, and until, this Tribunal is satisfied that the question of jurisdiction has been fully considered by a tribunal which has addressed itself correctly to the law and to all the facts relevant to the question of reasonable practicability.

	This Tribunal has, with some hesitation, come to the conclusion that it cannot be as sure as it would wish that the Industrial Tribunal did address itself to the law and to a crucial fact on which it should have made a finding.

	The appeal is allowed.  The matter is remitted to the Industrial Tribunal, either constituted as before if possible, or reconstituted at the direction of the Regional Chairman.

	We have considered whether we could limit in some way the factual enquiry to be conducted before the Industrial Tribunal, by focusing, for example, on Friday 13th. But we have decided that it is not practicable to do that.  If it goes before a new tribunal they must hear evidence of everything that led up to that.  We hope we have made it clear that the new tribunal should focus on the events of Friday 13th, the days that led up to that and the days that followed.

	The hearing of this remitted matter should be fixed as expeditiously as possible in view of the length of time that has passed, through no fault of the parties, since the date of dismissal and the hearing before the Industrial Tribunal.  It should go back to the Tribunal. with an estimate of two hours.