Appeal No.	EAT/1351/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 May 1998

Before
HIS HONOUR JUDGE D M LEVY QC
MR P DAWSON OBE
MR T C THOMAS CBE

LONDON UNDERGROUND LTD	APPELLANTS

MISS M NOEL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR K BRYANT
(of Counsel)
Secretary and Legal Director
London Transport
55 Broadway
London
SW1H 0RD	
For the Respondent	MR J GALBRAITH-MARTEN
(of Counsel)
Russell Jones & Walker
Solicitors
New Oxford House
16 Waterloo Street
Birmingham
B2 5UG	

	JUDGE LEVY QC:	We should first like to pay tribute to both Counsel who have argued this appeal with great ability. Our minds have fluctuated as to which submissions were right. Although at the end of the day we have come to a firm decision, that is not to say that we have not considered every argument put forward on behalf of the loser.

	The facts of this case are as follows. Miss Margaret Noel was an employee of London Underground Ltd. Her employment started on 12th February 1990, it ended on 10th April 1997. It ended because she had been involved in the course of her duties with a member of the public who had subsequently made an allegation of assault against her. As a result of that allegation and the investigation of it, Miss Noel was dismissed effectively on 10th April 1997. She appealed against that decision.

	On 21st and 23rd April appeal hearings upheld the original decision. On 23rd June 1997 there was a final appeal. The result of that appeal was recorded in a letter written by a director of the company to her trade union representative in these terms:

“I refer to our meeting held on 23 June 1997 and have now had time to reflect on the points you made.
Whilst I believe the conduct of Mrs Noel on 6 March 1997 was completely unacceptable and cannot be tolerated, I accept that the decision to dismiss her was perhaps harsh, given her domestic situation and that she had received no previous warning.
I am therefore prepared to re-employ Mrs Noel as a station assistant (M F) on and from Monday 7 July 1997. For future entitlements the date entered service will remain 12 February 1990. However, her Supervisory licences will be cancelled. Subject to satisfactory performance she can apply for promotion after 6 months.”

We were told in the course of argument today that her salary was reduced by that offer of employment from the original sum of £23,170 to a gross sum of £18,968, a drop of some 20%. The final paragraph of the letter dealt with administrative matters. 

	Prior to that letter being written and subsequent to it, she had had the advantage of assistance from Mr Vessey, her trade union representative. He had prepared an IT1 for submission to an Industrial Tribunal and he knew very well what the time limits were. The time limits for presentation under the Act expired on 9th July 1997. Mrs Noel, not unexpectedly accepted the offer, but was unable to start work on 7th July as per the offer, and subsequently when she took her medical examination before resuming employment she tested positive for cannabis and the decision notified to her of re-employment was withdrawn.

	She had not brought proceedings within the three months provided by s. 111(2) of the Employment Rights Act 1996 which provides:

	“(2) Subject to subsection (3), and industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal-
(a)	before the end of the period of three months beginning with the effective date of termination, or
(b)	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 that period of three months.”

	On 7th August 1997 she presented her complaint, prima facie, out of time, to the Industrial Tribunal. The IT3 of the company was sent to the tribunal on 26th August 1997. The point was taken that the application was made out of time and this led to a hearing before the tribunal sitting at London (North). It was heard by a Chairman sitting alone on 10th October 1997.

	The learned Chairman had the benefit on that occasion of representation for Miss Noel from Mr Vessey, the trade union representative who had advised her all along. Mr McFarlane, a solicitor, appeared for the Company. The decision the Chairman reached was that the tribunal did have jurisdiction to consider Miss Noel’s complaint of unfair dismissal.

	It is agreed on all sides that the point raised in this case is novel. The point raised is this. Within the three month period Miss Noel knew of her right to apply; she did not exercise her right to apply because towards the end of that period she understood that she had had a job offer not of reinstatement, but effectively of reinstatement on favourable terms which made an application to the Industrial Tribunal unnecessary. In those circumstances, neither she nor her adviser presented the complaint within the time schedule provided by the Act.

	On those facts, realising that it was novel, the learned Chairman held that:

“9. ... that there are special facts in this case special facts which justify departure from the usual rule. ...”

The special facts clearly were the offer of a job which she accepted, which subsequently was lost. The way the learned Chairman expressed the special facts were these:

“9. ... Until the Applicant’s appeal was determined, she did not know whether she would have a worthwhile right of action in the industrial tribunal.”

What we think this amounts to a finding that it would not be necessary for Miss Noel to make an application to an Industrial Tribunal within the three month period if the final appeal result was known and was favourable to her. Clearly, if the final appeal result had not been known within the three month period and a complaint had not been lodged in that period any application would have been made out of time and there could have been no claim that there were special facts. But that was not the fact here. Paragraph 9 continues:

“However, the Applicant’s further appeal to one of the Respondents’ directors was determined substantially in her favour before the expiry of the three-month time limit.”

We think that that is a finding of fact which is entirely right. The next sentence reads:

“Although Mr McFarlane is almost certainly right in his submission that the Applicant had a right to complain of unfair dismissal throughout the period after the decision to dismiss her was taken on 10 April because the offer to re-employ her was not an offer of reinstatement which had the effect of annulling the previous decision to dismiss, I take the view that the existence of the offer of a new job was a fact which was fundamental to the Applicant’s right to bring a claim of unfair dismissal.”

We think ‘right’ in this sentence is a reference in shorthand to what the Court of Appeal were considering in the case which we have found most helpful of the many which have been cited to us today, namely the decision in Palmer v Southend-on-Sea Borough Council [1984] ICR 372. There are several passages to which we have been taken in the course of argument. We note that at page 381, May LJ who was then referring to the judgments of the Court of Appeal in Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53 referred to the judgment of Scarman LJ. In that case, having agreed with Lord Denning MR on a point of construction, he said:

“The word ‘practicable’ is an ordinary English word of great flexibility: it takes its meaning from its context. But, whenever used, it is a call for the exercise of common sense, a warning that sound judgment will be impossible without compromise.”

May LJ continued:

“The majority view [because the decision was made on a majority], therefore, was that the relevant phrase should not be construed in its strict literal sense, but liberally or flexibly. Respectfully, however, whilst this approach is easy to state, we do not think that it is at all easy to apply in practice.”

We echo these words, but sometimes one can distinguish the trees from the woods and sometimes it is more difficult. 

	There is another passage in Dedman which we find helpful. At page 382 where May LJ refers to passages from the Court of Appeal decision in Walls Meat Co Ltd v Khan [1979] ICR 52:

“In his judgment Lord Denning MR expressed the view that where a dismissed employee allowed the limitation period to pass merely because he was waiting for the result of pending criminal proceedings against him, this was not an acceptable reason for saying that it was not “reasonably practicable” to present his claim within time. His judgment continued, at p.56:
“I would venture to take the simple test given by the majority in Dedman’s case [1974] ICR 53, 61. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time. ...”

He then goes on to deal with ignorance of rights. There is no question but that Miss Noel knew of her rights here, but the question is did she have just cause or excuse for not presenting the complaint within the prescribed time. Shaw LJ said:

“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 by finding 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. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer’s complications into what should be a layman’s pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive.”

Further on in the judgment in Palmer the general approach to the statutory phrase suggested by Brandon LJ was set out:

“The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some independent which reasonably prevents or 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. ...”

	The facts here, as we understand them, which the learned Chairman thought were special, were these: Miss Noel knew she had a right to make a complaint within three months. Up to the time of the final appeal being resolved in a matter which she thought was in her favour, she intended to exercise that right. When she was made an offer of a new job which was substantially one which she strongly welcomed, she found it unnecessary to make an application. She was inhibited from making the application because she had a belief, mistaken in the event, that she had a replacement job. As soon as she found that the replacement job was no longer there, she felt it appropriate to start the proceedings. 

	In those circumstances, it seems to us, that the Industrial Tribunal was entitled to find special facts and to use its common sense to come to the decision which it did.

	We have very carefully considered the submissions which Mr Bryant has made that this takes the law in a new direction, but it is a novel point. We think that the decision the learned Chairman made was not on the special facts of this case was perverse, and in those circumstances, as Mr Galbraith-Marten has submitted to us, it is not one where we are entitled to substitute our own views for his. 

	We would say that of the many other case cited to us, we have had assistance from the decision of the Court of Appeal in James W. Cook & Co (Wivenhoe) Ltd v Tipper and others [1990] ICR 716. There the facts were somewhat different to those we have considered, but Neill LJ giving a judgment, with which Farquharson LJ and Sir Roger Ormrod agreed said:

“As has been emphasised in the authorities, the expression “reasonably practicable” must be looked at in a common sense way.”

In our judgment this is something which the learned Chairman below did, as he was entitled to do in the circumstances of this case.

	In these circumstances we will dismiss the appeal.

	Leave to appeal is granted.