Appeal No. EAT/422/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3rd April 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J D DALY

	MR R H PHIPPS

MR S R C MOORE	APPELLANT

MESSRS THRINGS & LONG	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBERT THOMAS
(of Counsel)
Messrs Thatcher Mallam
Solicitors
Island House
Midsomer Norton
Bath
BA3 2HJ

For the Respondents	MR JOHN BOWERS
(of Counsel)
Messrs Thrings & Long 
Midland Bridge
Bath
BA1 2HQ

	MR JUSTICE MUMMERY (PRESIDENT):   This is an appeal against the decision of the Industrial Tribunal held at Bristol on 19th April 1993. The Tribunal heard a preliminary issue as to jurisdiction in proceedings brought by Mr S R Moore against his former employers Thrings & Long, a firm of solicitors with whom he had served as a clerk for about seventeen years.

	The originating application was presented on 27th January 1993. The claim was for unfair dismissal from the position of filing clerk/messenger/porter. Mr Moore gave his dates of employment as 28th September 1975 to 18th September 1992.

	The solicitors resisted the claim, taking a preliminary point that the application was out of time. They said in the Notice of Appearance, dated the 16th February 1993, that Mr Moore's employment came to an end of 18th September, on the expiry of twelve weeks notice. It is common ground now that any complaint of unfair dismissal should have been filed with the Tribunal by 16th December. The solicitors contended that there was no reason why the Tribunal should consider the application out of time, and they sought a preliminary hearing on that issue.

	At the preliminary hearing the Tribunal, by a majority, decided that Mr Moore's application should be dismissed. Mr Moore appealed by a Notice of Appeal served 3rd June 1993, having been notified of the Full Reasons for the Tribunal's decision on 26th April.

	An appeal came before the Tribunal on a preliminary hearing on 20th December 1993. A direction was given that the Appeal be allow to proceed to a Full Hearing. This is the Full Hearing.

	Mr Thomas represents Mr Moore. He has represented him both in the Tribunal and on the Preliminary Hearing. Mr Bowers appears for Messrs Thrings & Long.

	The case turns on the application of Section 67(2) of Employment Protection (Consolidation) Act 1978. The question is whether the Tribunal correctly applied it to the facts found. As will appear in a moment, it is not an entirely straight forward case. We are all agreed that the Full Reasons for the Decision are not expressed as clearly as they might have been. But it does not necessarily follow that there is an error of law in the decision.

	It is well established upon appeals to this Tribunal that the Tribunal's reasons must be read as a whole, not in a nit-picking, pedantic kind of way. If it is reasonably clear why a tribunal reached a decision, then this Tribunal will not be astute to find fault with it, because of infelicities or lack of clarity in expression. We are an Appeal Tribunal, not a board of examiners.

	The first stage to consider on the Appeal is examine the facts found by the Tribunal. The Tribunal stated that Mr Moore had had some physical disability since birth. There was a deterioration in his physical condition which led to his dismissal on 24th June. He was entitled to a Notice period and so, as mentioned, the effective date of dismissal was in the middle of September 1992. That meant that his application had to be with the Central Office of Industrial Tribunals by 16th December 1992.

	The Tribunal examined the events which took place between the receipt of the dismissal letter of 24th June and the presentation of the Originating Application on 27th January 1993.

	The dismissal letter of 24th June 1992 was received by Mr Moore. It was followed by a second letter dated 30th June 1992. In that letter, it was pointed out to Mr Moore that, under an insurance policy that the firm had, he might be entitled to long term benefits, because of an increase in his disability. The letter told him he might be able to make a claim for financial support under the policy. The firm had checked with the insurance company and it did not make any difference that he had been dismissed. The Tribunal noted:

		"We find that an encouraging letter. It was not surprising that the applicant filled in the application form, which set out his disability as an "escalating anxiety state". He told us that because he felt that if he complained to an Industrial Tribunal it might prejudice his insurance claim he did not do it. Also, he had in his mind that the respondents being solicitors might have got their tackle in order and might be difficult for him to succeed."

	The Tribunal found, as a fact, that the priority reason for him was that he did not want prejudice his insurance application by a complaint to an Industrial Tribunal.

	He waited for the Insurance Company decision. He did not take legal advice because he did not think that that was necessary. He had not got any intention of complaining to a Tribunal until the Insurance Company decision was known. He knew that there were time limits for complaints, but he did not know what they were. He did not make any enquiries to find out.

	The insurers required him to be counselled by a nurse. That was done at the beginning of December. By 7th December Mr Moore had formed the view that his application was not going to succeed. (That is his application under the insurance). That arose from something that he had been told by the counselling nurse. He was not informed of the insurance company's decision until he received a letter dated 24th December. The Tribunal assumed that he did not actually receive the letter until several days later. The letter of the 24th December referred to the previous correspondence in connection with the claim submitted by Messrs Thring & Long, as his former employers, and then said this:

		"In order for benefit to become payable under this claim evidence is required which clearly establishes that you are unable to undertake a reasonable level of gainful employment solely due to incapacity. The information we have received does not suggest that your incapacity now has changed to any significant degree when you were last at work."

		"Therefore it is our view that the evidence and information submitted, together with the action you have been taking, does not suggest that the criteria for the payment of benefit under your former employer's scheme has been met."

		"It is regretted therefore that the Legal and General are unable to make payment to you under terms of Thrings and Long long term disability scheme."

	After receipt of that letter there was a telephone call was made by Mr Moore's mother to the Legal and General Assurance Society. That was followed by a letter from the insurance company dated 15th January 1993, regretting that there was little that could be added to the previous letter. On 25th January a further letter was sent on Mr Moore's behalf, this time by a firm of solicitors, whom he had consulted, Thatcher & Hallam. They asked the insurance company to set out simply the criteria required to meet a claim and to explain how they had decided to disallow it. There was a reply to that on 27th January  in which the insurance company said this:

		"The benefit to which Mr Moore claimed derives under an arrangement provided by his former employers. The Legal & General insured the liability the former employers had undertaken on behalf of their employees. Therefore the Legal & General do not have direct liability to make payment to Mr Moore."

		"In view of this I suggest that you direct your enquiry to Messrs Thrings & Long in the first instance."

	The Tribunal referred to the fact that Mr Moore took legal advice and the originating application was presented on 27th January. Thus there was a delay of about a month between the receipt of the insurance decision. There was a delay of about six or seven weeks from the 7th December, when he first learnt that the decision was likely to be unfavourable. 

	The Tribunal referred to authority Wall's Meat Co Ltd - v - Khan [1978] IRLR 499, cited to them. They found that Mr Moore had a belief that he should delay his complaint to an Industrial Tribunal, because it might prejudice his insurance claim. That was a mistaken belief, but the majority believed it was not a reasonable reason for delay.

	There follow three paragraphs which I should read in full, because they form the main basis for Mr Thomas's criticism of the Tribunal's decision on this Appeal.

	The Tribunal stated the conclusions reached as follows:

		"7     The majority verdict is that the applicant has not satisfied us that it was not reasonably practicable for him to make enquiries for entering the complaint before the time ran out. It is true that he has disabilities. He has, however, for 17 years working in a solicitors' office and he must have known that such procedure matters as time limits can be found out by reasonable enquiry. He took no steps to do that. In my view he does not pass the first hurdle of satisfying me that it was not reasonable to make such enquiry."

That paragraph is primarily directed to the views of the Chairman.

		"8     My colleague who shares the majority view consider that it was reasonable for him to take no steps until he received the letter of 24 December. When he received that letter he should have taken steps to put his complaint in. My colleague is not satisfied that it was reasonable to delay from, say, 27 December until 27 January to put in the complaint. In his view, he does not consider that the further period from 27 December to 27 January is a reasonable extension in accordance with the statute. Thus the majority view really amounts to the same thing that we are satisfied that it would not be reasonable for us to extend the time."

That paragraph is mainly directed to the view expressed by the colleague with whom the chairman went on to express agreement. That paragraph deals both with the colleagues view that it was reasonable to take no steps until the letter of 24th December was received with the shared view of the Chairman and that lay member that it would not be reasonable to extend the time. 

	Paragraph 9 records the view of the other lay member, who was in the minority. That reads:

		"9     The minority view of my other colleague is that the delay was reasonable because the applicant was under a disability and the delay from the receipt of the letter of 24 December to 27 January is reasonable. Bearing in mind the intervention of the Christmas period the obvious amount of work which had to be put into the application (it is many pages long) and the difficulties of arranging appointments and so on, in his view it would be reasonable for the Tribunal to extend the period to 27 January, the date of receipt of the application."

	The Tribunal stated that the majority verdict prevailed. They find that the Tribunal did not have jurisdiction to hear Mr Moore's claim and dismissed it at that stage.

	The criticisms which Mr Thomas has made of the Decision, in particular paragraph 7, 8 and 9, must be considered in the light of Section 67(2) of the 1978 Act which lays down relevant time limit. That provides:

		"... 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."

	Mr Thomas's submissions fell into three parts. The first submission concerned the construction and application of Section 67(2) and the importance of applying a two stage test. The second submission was that the Chairman's finding "that it was reasonably practicable for Mr Moore to have submitted his claim within the three months" was perverse, in the sense that it was not a permissible option on the facts found by the Tribunal and it was unsupported by the evidence. The third submission was that the refusal of the majority to decide that the application was submitted within such reasonable further period after the expiration of the three months was perverse. There is a comprehensive attack on the Decision. We can deal shortly with each of the submissions.

	On the first submission, there is no dispute that Section 67(2) poses a two stage enquiry. The first stage is that the Industrial Tribunal should decide whether or not it was reasonably practicable for the complaint to be presented within three months. Only if the Tribunal decides that it was not reasonably practicable, does the Tribunal move to second stage which is to decide whether or not to exercise the discretion to grant an extension of time.

	A number of cases are cited in support of that approach which is not really disputed. It is sufficient to mention the leading case, Walls' Meat Company Limited - v - Khan [1979] ICR 52. Mr Thomas submitted that if you looked at this decision and tried to find the application of the two stage test, you would find that the Chairman himself, who was in a minority on the first stage, did not actually consider the second question and made no decision upon it. That was the essence of his submission. The Tribunal had not clearly decided the first question, and voted on it before moving on to the second question. He analyzed the language of the Decision in paragraphs 6, 7 and 8, and made these points. He said that it was plain from paragraphs 6 and 7, that the Industrial Tribunal correctly considered the first stage as a discrete issue upon which a decision was required from the Tribunal; but failed in fact to deal with the matter in that way. He pointed out that there was, on a reading of those paragraphs, no majority verdict on the first stage. There is was only the minority view of the Chairman. It was only the Chairman who formed the view that it was reasonably practicable to present the application within the three months. He noted the language of paragraph 7 where it stated by the Chairman, "in my view he (that is Mr Moore) does not pass the first hurdle of satisfying me that it was not reasonably practicable."

	He referred to paragraph 8, where the decision states that "the majority view really amounts to the same thing that we are satisfied that it would not be reasonable for us to extend the time". That is not correct. He said that the Tribunal should have decided the first question before moving on to the second. That did not happen.

	We are unable to accept the first submission. It seems to us that, reading the decision as a whole, they proceeded in this way, though it is not spelt out in so many words. At the first stage, the Chairman was alone. He was the only person who thought that it was reasonably practicable for Mr Moore to bring his application within the period of three months. The other two members did not agree with that. It became more complicated when the next stage was reached. The two lay members were in disagreement with one another. The member, described as the minority member, thought it was reasonable to extend the time to 27th January. But the other member, described as being part of the majority, thought it was not reasonable to extend it to 27th January. It is clear that what the Chairman did, at the second stage, was to say to the majority lay member. "Even though you do not agree with me on the first stage, I agree with you on the second stage." There was, therefore, a separate decision by the Chairman, in which he expressed his concurrence with the view of the "majority" lay member. They therefore did proceed in two stages. In our view the Chairman did consider the second question. He did make a decision on it. The decision was to agree with the view of the majority lay member. In our view, this is clear from the part of the decision where the Chairman says in the last sentence of paragraph 8:

		"Thus the majority view really amounts to the same thing that we are satisfied that it would not be reasonable for us to extend the time."

He is saying that, whichever way one approaches it, we have come to the view that the application should be dismissed, because it is not in fact reasonable to extend the period to enable the proceedings to be brought.

	We can deal more briefly with the second argument. The second argument goes into considerable detail, which we do not think it necessary to examine, with a view to showing that the Chairman's view that it was reasonably practicable for Mr Moore to have submitted  his claim in time was perverse. In order to do that, Mr Thomas took us through a number of the documents and background facts in support of the perversity argument. He pointed out the position about the insurance claim made by the applicant. He particularly made the point that any claim by Mr Moore for unfair dismissal would inevitably have required an assertion on his part of his ability to work, at least at the time of his dismissal. That assertion would run wholly contrary to the claim under the insurance policy that he was permanently disabled, (that was the prerequisite for qualification under the insurance policy). And so he was obliged to wait for the outcome of the insurance claim. That was not finally communicated until 24th December. There was later correspondence, which showed that his expectations about the insurance claim were not finally dashed until he had received further letters from the insurance company on 15th January and 27th January. This was all in support of the general proposition that it was not feasible for Mr Moore to submit his originating application until his insurance claim was finally resolved.

	We note those points, but the difficulty we feel on this part of the case is that it seems to us quite beside the point whether the Chairman's view on reasonable practicability was perverse or not. The reason why it is beside the point is that the Chairman was in a minority on the first stage. A minority member may be, and may often be thought to be by the majority, to be perverse. A minority view is not causally linked to the decision reached and from which the Appeal is brought. In our view, it does not follow that because the Chairman may have been perverse on the first point, the agreement which he reached with the "majority" lay member on the second point is affected with that perversity. They are two different stages. It would be possible for a decision on one point to be flawed, and a decision on a second stage point to be correct. We pass from that argument without expressing a view on whether the Chairman's view was perverse or not, save to say, that, from the argument we have heard, it does not seem to be perverse. 

	That brings us to the third point, which is also a perversity argument. This is that the majority view that the application was not submitted within a reasonable further period was perverse. The points made by Mr Thomas on this argument are that the Chairman did not consider the issue at all and that the single member who did consider it did not give any reasons for the decision which he had reached. There was a finding by the single member that it was reasonable to take no steps until receipt of the letter of 24th December. That ignored the later correspondence in January. He pointed out that the receipt of the letter dated 24th December was critical. There was an erroneous assumption that the letter was received on 27th, which, it was pointed out, could not be factually be correct, since 27th was a Sunday. The following day was a Bank Holiday. So, that the earliest date on which the letter would have been received would be 29th December was at a time when the post was likely to be irregular. In the context of the relatively short period, the Tribunal members should not have relied upon receipt on 27th December. It was pointed out that, at that time of the year, solicitors offices are usually closed, as was indeed the case with the office of Mr Moores' solicitors. It was submitted finally that the view of the majority on a reasonable time for extension effectively amounted to a decision that, in the absence of supporting findings, a delay of a month is inherently unreasonable.

	We are unable to accept these points as amounting to perversity. As Mr Bowers reminded us in his arguments, perversity, in this context means that the decision reached is one that no reasonable tribunal or in this case, no reasonable majority in a tribunal, could have reached. It has got to be an irrational decision, or it has to be shown that there was no evidence to support it, or that the decision was completely against the uncontradicted evidence. That is not the case here. The decision of the majority that it was not a reasonable further period to extend the time for presenting the application, has to be read against all the facts found. In our view, it was open to the lay member and the Chairman to form the view that an extension to 27th January was not a reasonable further period. On the particular points, we do not think it correct to say that, the Chairman did not consider the issue at all. In our view, it is clear from paragraph 8 that he did consider the issue. He and the one of the lay members were in agreement about it. The fact that no detailed reasons were given for the view, does not invalidate the decision. A question whether a period is reasonable or not is a question of fact, to be decided in the context of all the facts set out in the Decision. As to the remaining points about the date of actual receipt of the letter and the closure of solicitors' offices over that period, we do not find those are of sufficient weight to conclude that the majority decision was a perverse one in the sense described.

	Those are the detailed reasons why we reject the three points on which Mr Thomas attacks the Decision. We come back to a more simple point. That is that decisions on the application of time limits, such as whether it is or is not reasonably practicable to present an application within three months, and decisions on extension of time, such as whether it is reasonable to extend the time for a further period are in essence questions of fact. They cannot be appealed to this Tribunal, unless it can be shown that the Tribunal erred in law in the interpretation and application of Section 67(2) and the authorities decided upon it, or unless the Decision is perverse. The overall reason why we reject this appeal is that Mr Thomas has not satisfied us by the three separate arguments or by their cumulative effect that there is any error of law. 

	The Appeal is therefore dismissed