Appeal No. EAT/772/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23 February 1994

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR J R CROSBY

	MR J DALY

DIXON STORES GROUP	APPELLANTS

MR P ARNOLD	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS C M JOHNSTONE LLB
(REPRESENTATIVE)
Cygnet Industrial Relations
2A Mansel Road
London SW19 4AA

For the Respondent	MR J HAGE
Free Representation Unit
49/51 Bedford Row
London WC1R 4LR

	JUDGE HARGROVE OBE QC:  The Industrial Tribunal held that it had jurisdiction to hear the Respondent's complaint that he had been unfairly dismissed.  It is common ground that his employment ended on 7 August 1992 although there is a dispute as to whether the Respondent was in fact dismissed.  His application was not presented until March, 1993 and was four months out of time.  The Tribunal obviously asked itself the right questions under section 67, particularly whether it was reasonably practicable for him to present his application in time.

	The facts as found by the Tribunal were set out in paragraph 14 as follows:

		"(1)  When he [the Respondent] went to the Job Centre to register as unemployed (which was on 7 or 8 August) he was told by the employment adviser to wait for the result of any appeal against suspension of unemployment benefit before applying to a Tribunal on the grounds of constructive dismissal.

		[What seems to have happened was that he left the employment owing to the fact that he had been asked to relocate and take a diminution in salary and he was obviously at the first instance told by those in charge of unemployment benefit that as he had made himself voluntarily unemployed he was not going to get the benefit and against that he was appealing]

		(2)  The phrase "constructive dismissal" went over his head.  We accept that the employment adviser told him that he could go immediately to an Industrial Tribunal if he had been dismissed but not if he had resigned.  Since Mr Arnold had not been told he was dismissed, he took it that he had resigned.

		(3)  He went to the Citizens Advice Bureau the next day, to seek advice about how to go about the unemployment benefit appeal.

		(4)  Mr Arnold told us, and we accept, that he did not ask, and was not told by the young lady he saw at the Citizens Advice Bureau about the time limit for an Industrial Tribunal application.

		(5)  He was told that it would be unusual to have applications to two bodies running at the same time.

		(6)  The lady he spoke to at the Citizens Advice Bureau was young, and did not seem to be well informed.  We infer that, perhaps, she was a secretary rather than an adviser.

		(7)  The Social Security appeal was heard on 9 March 1993 and was successful.

		(8)  Mr Burton, the Adjudication Officer, then asked if Mr Arnold had applied to the Industrial Tribunal.

		(9)  Mr Arnold said "What case would I have?  I resigned my employment."

		(10)  Mr Burton then explained the concept of constructive dismissal to Mr Arnold.  We find that he did not previously know of that concept.

		(11)  When Mr Arnold knew that he could apply to the Industrial Tribunal he did so promptly, his application being presented on 15 March.

		(12)  The phraseology of the reply to box 1 on the Originating Application confirms the impression of previous ignorance."

	They considered the question of Mr Arnold's ignorance and set out those considerations and at paragraph 17 they said:

		"In the light of these considerations, if the case had really turned on reasonable ignorance, we might have found that Mr Arnold had not established that his ignorance was reasonable in that he did not make enquiries which a man who has held a responsible position might be expected to take."

It is clear that what they are doing at that point is merely considering, hypothetically, that situation.  They go on in paragraph 18 as follows and this is crucial to the whole decision:

		"However, we do not think that this is a case which turns on ignorance.  We have not yet stated what we find as perhaps the most important fact of the case, which is that, having previously been ignorant of the concept of constructive dismissal, Mr Arnold accepted, and his mind was conditioned by, the advice which he received from the employment adviser, which was not contradicted by anything he was told at the Citizens Advice Bureau."

The Tribunal then held that the advice of the employment adviser at the Job Centre had been so crucial that it had not been practicable for him to present his application in time.  They considered the cases of Riley and Another v Tesco Stores Ltd, Jean Sorelle Ltd v Rybak and London International College Ltd v Sen amongst others.

	What the Appellants contend here is that the Industrial Tribunal was wrong in failing to draw distinction between the cases where advice had been produced to the employee by an employee of an Industrial Tribunal and advice from a civil servant at a job centre.  By way of further elaboration, it is said that in fact what was happening was that the adviser at the job centre was giving information aimed not at the question of proceedings best to be taken but it merely imparted information which alerted the Respondent to the existence of a remedy at the Industrial Tribunal and thereafter it placed upon Mr Arnold the burden of taking proper advice.

	Other matters in argument have been raised before us but we are of the view that this appeal must be limited to those matters set out in the Grounds of Appeal which are in very short form.  It is said that the decisions in Jean Sorelle v Rybak [1991] IRLR 153 and London International College Ltd v Sen [1993] IRLR 333 should have been distinguished from the present case.

	The starting point for all appeals of this nature is the case of Palmer v Southend on Sea Borough Council [1984] IRLR 119.  The relevant passage occurs at page 125 where the Court of Appeal, having heard extensive argument, states:

		"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.  Dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used.  It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar.  It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee.  It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisors' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him.  In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his advisor which has led to the failure to comply with the statutory time limit.  Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account."

	That was further supported by the decision in Wall's Meat Co Ltd v Khan [1979] ICR 52.  The relevant passage appears in the judgment of Shaw LJ which, as is customary of that distinguished judge, put the matter not only accurately but succinctly.

		"The question which arises once more on this appeal is how and where the demarkation line between what is reasonably practicable and what is not shall be determined.  It seems to me axiomatic that what is or is not reasonably practicable is, in essence, a question of fact.  The question falls to be resolved with the finding of what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs.  The test is empirical and involves no legal concept.  Preferable commonsense is the keynote and legalistic footnotes may have no better result than introduce a lawyer's complication into what should be a layman's pristine province.  These considerations prompt me to express the emphatic view the proper forum to decide such questions is the Industrial Tribunal; that their decision should prevail unless it is plainly perverse or oppressive."

	Bearing that in mind, the question is whether it can be shown that there has been a failure to apply relevant law to the facts of this case.  Insofar as I understand the Appellants' case it is that Rybak and Sen are to be confined within the very narrow limits and that it is when a person gives advice which proves to be erroneous and that person is a member of the staff of the Industrial Tribunal, or at least is a person whose post makes him an appropriate person whose advice is to be relied and trusted upon by the litigant, only in those cases can that advice be used as a shield against the full rigour of the section.

	In my view that approach founders almost immediately when one considers the Rybak case itself.  The headnote reads, (and I am selective in this):

		"There is no principle that mistaken advice from any third party will prevent an employee from establishing that it was not reasonably practicable to present a complaint in time.  What has been established is a general principle that a failure by an adviser such as a solicitor, trade union officer or CAB officer to give the employee correct advice regarding the time limit, will prevent the employee from claiming that it was not reasonably practicable to apply in time.  There is a clear factual difference between, on the one hand, advice obtained by a claimant from someone who is asked, whether for a fee or not, to advise the claimant in the presentation of his claims against the employer and, on the other hand, advice obtained by a claimant from an employee of the Tribunal which is charged by Parliament with the task of resolving the dispute between the parties." 

Moreover, when one looks further into Rybak the court quotes with approval at page 154 the passage from Sir Hugh Griffiths' (as he then was) judgment in the case of W Press & Son Ltd v Hall which says:

		"If the finding of the Tribunal is that the respondent made a proper enquiry of his rights to bring a claim for unfair dismissal at two employment exchanges and was advised at both employment exchanges that he ought to do nothing but await the outcome of a test case, then in the view of the members of this Court the Tribunal were entitled to hold that under those circumstances it was not practicable for him to have presented his claim within the 28-day period because he would have been positively misled by those who he could reasonably suppose were in a position to give proper information".

	It will be noted there that, just as in the present case, there is advice being given, not by servants of the Tribunal, but by two officers of the Department of Employment.  A similar comment can be made about Harvey's Household Linens Ltd v Benson [1974] ICR 306 and the passage which supports the view put forward by the Tribunal appears at page 309:

		"The tribunal with the benefit of that guidance decided that the employee's state of mind on September 17 and thereafter rendered it impracticable for him to have presented his application within the requisite limitation period.  Accordingly, they decided that the employee himself was not at fault in allowing the four week period to pass.  They also considered an alternative argument that the employment exchange came within the phrase "advisers" in the judgment of Lord Denning M.R.  The tribunal decided that the employment exchange were not the employee's "advisers," and that, if the employment exchange were at fault in interpreting the regulation, he was not affected by that fault.

		In our judgment, the tribunal were correct on both counts.  They applied Lord Denning's test.  They considered whether the employee or his advisers, if any, were at fault in allowing four weeks to pass by without presenting the complaint.  They came to the conclusion that he did not know of his rights before September 17 and that when he did know of those rights he was given to understand, and reasonably understood, that he had 28 days from September 15 in which to present his complaint.  No fault, in the tribunal's view, could be attributed to the employee."

	In our view the Tribunal was perfectly entitled in the light of those authorities to reach the conclusion it did.  Furthermore, it seems to us that, upon the wider point which the Respondent makes, there is a very strong argument for saying that there is no general principle that any particular individual's advice ought to be conclusive against an applicant from utilising the escape clause.  There is support from that view admittedly obiter, in the judgment of the Master of the Rolls in the most recent case of London International College Ltd v Sen [1993] IRLR 333.  The passage at 335 reads: 

		"I must, however, say that, for my part, I find the rationale of that principle very hard to understand.  If the test is whether it was reasonably practicable or practically possible or reasonably feasible to present the complaint in time, it would seem to me irrelevant whether or not the complainant had consulted a solicitor.  That would seem to me to be a possible approach to the language of the section but it is one which previous authority has firmly rejected and such authority has concentrated on the state of mind of the prospective complainant and the extent to which he understood his position".

	It would appear that the approach which the Master of the Rolls was taking in that case is far closer to the approach set out in Palmer than the intervening decisions.  Whether that be right or not is irrelevant however to the Respondent's case here.  On any view the Tribunal were entitled to form the view they did and upon the facts they had ample evidence before them.

	In those circumstances this appeal fails and is dismissed.