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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Astbury v Alfred McAlpine Plant Ltd [1998] UKEAT 1315_97_0403 (4 March 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/1315_97_0403.html Cite as: [1998] UKEAT 1315_97_403, [1998] UKEAT 1315_97_0403

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APPEARANCES

 

For the Appellant	MR D ASTBURY (in person)


 


JUDGE PETER CLARK: On 20 May 1997 the Appellant, Mr Astbury, presented a complaint of unfair dismissal to an Industrial Tribunal against the Respondent, Alfred McAlpine Plant Ltd. He gave the dates of his employment as Company Accountant with that Company as 14 January 1991 until 16 January 1993.

By their Notice of Appearance the Respondent contended that the Appellant was employed by the Company from 1 June 1991 until 18 December 1992. Accordingly, they took two preliminary jurisdictional points. First, that the application was out of time; secondly, that the Appellant had less than two years' qualifying service for unfair dismissal protection.

By a direction of the Liverpool Industrial Tribunal, the limitation point only was taken as a preliminary issue. At a hearing before a Chairman, Mr D Reed, sitting alone on 24 July 1997, that Chairman found that the application was out of time, that it was reasonably practicable to present the complaint within the ordinary three-month limitation period, beginning with the effective date of termination which he found to be on or about 17 December 1992 and, accordingly, he dismissed the complaint. Extended reasons for that decision are dated 31 July 1997.

By a letter dated 6 August 1997, the Appellant applied for a review of the original decision. By a further decision dated 27 August 1997 the Chairman dismissed the review application on the grounds that it had no reasonable prospect of success.

Against both the original decision and the review decision Mr Astbury now appeals.

He has carried out a good deal of legal research into his case. He refers to a number of authorities, with which we are familiar, as to the test of reasonable practicability. He accepts that it is essentially a question of fact for the Industrial Tribunal as to whether it was reasonably practicable to present the claim within time.

The basis on which he contends it was not reasonably practicable to present the claim within time is that in late February or early March 1993 - he puts the date more specifically as 26 February in submission to us today - he was informed by the Respondent's divisional personnel manager that he had not completed two years' continuous service so as to qualify for unfair dismissal protection. Again, today, Mr Astbury tells us that he wrote to the Company on 23 February 1993 asking for reasons for his dismissal. It was in that context that the personnel manager spoke to him on the telephone three days later informing him that in his view the Appellant did not have two years' continuous service. That, of course, remains the Respondent's case, although it has not yet been tested before an Industrial Tribunal.

The Chairman found that that opinion represented the personnel manager's genuine view. It may or may not be right as a matter of law but, as the Chairman observed, it was open to Mr Astbury to seek advice from a solicitor or Citizens Advice Bureau at the time. He did not do so until some years later. He does not claim ignorance of unfair dismissal protection, rather that he did not know he might have a case until years after his dismissal. He describes himself - and we think this is not unreasonable - as academically and intellectually within the top 5% of his year group. He strikes us as an intelligent man who had the capability of seeking advice for the purposes of ascertaining whether or not it was worth his while to put in an application to the Industrial Tribunal within the three-month time-limit.

In our judgment, the Chairman reached a permissible conclusion in the original decision in finding that it was reasonably practicable to present the complaint within time.

As to the review decision, having considered the grounds for review advanced by Mr Astbury on paper and the Chairman's reasons for dismissing that application, we can see no grounds in law for interfering with that decision.

Finally, the Appellant sought to raise certain allegations of bias against the Chairman in an affidavit sworn in this appeal on 24 September 1997. We can see nothing of substance in those complaints.

It follows that in our view these appeals raise no arguable point or points of law and, accordingly, they must be dismissed at this preliminary hearing stage.