Appeal No.	EAT/1118/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 February 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR P M SMITH
MISS S M WILSON

MRS M C WILLING	APPELLANT

MR R J COTTAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

		

	MR JUSTICE CHARLES:     The parties to this appeal are a Mrs Willing and a Mr Cottam.  The relevant decision of the Employment Tribunal was made on 5 May 1998.  There was then a review hearing in respect of that initial decision of the Chairman, which was dealt with on 26 May.  

	The appeal before us is against the decision of the Employment Tribunal made on 5 May and that appeal is dated 11 June.  At present there is no appeal against the review decision.

	The matter that was dealt with by the Employment Tribunal was whether or not Mrs Willing’s claim was in time.  The conclusion reached by the Employment Tribunal, having heard some evidence from Mrs Willing but no evidence from the employers, was that the claim was being made outside the three month time limit set out in section 111 of the Employment Rights Act.

	The conclusion reached by the Chairman was that Mrs Willing had been dismissed on 9 October 1997 as a result of a telephone call taken by her 13 year old daughter in which the daughter was told “Tell your mother that she is sacked and I do not wish to see her face again”.  Our understanding is that during the course of that hearing Mrs Willing became upset, left the room and did not, so she asserts to us, present her full case.

	The documents we have seen indicate that, certainly at some stages of the proceedings, the employers were not asserting that the telephone call we have referred to terminated the contract of employment and therefore resulted in the dismissal.  For example, in their grounds of resistance the employers say that the effective date of termination was the next day, 10 October 1997, which is the date of a letter which was written to Mrs Willing.  There is a dispute between the parties as to when that letter was received.  Mrs Willing accepts it was received on 24 October.

	The P45 contains the date “16 October” and the employer’s statement in a redundancy and unemployment claim form states “18 October”.  So on the face of the documents there is a muddle as to the date of dismissal.  It therefore seems to us, and all we have to decide at this stage is whether there is a point that is reasonably arguable, not what the correct answer is, that it is reasonably arguable that the Chairman erred in not hearing more evidence as to the date of dismissal and, in particular, not hearing evidence from the employers and in his conclusion as to the date of dismissal.  A difficulty so far as that is concerned, and this is what has exercised us at some length in discussing this case, is that on the documentation it is apparent that Mrs Willing was dismissed on 24 October, which is the date that she selects for the dismissal, which has the result that in any event the claim was out of time.

	The issue therefore which we have considered, with some care, is whether or not, albeit that the Chairman of the Tribunal concluded that the dismissal was on the 9th and not the 24th that made any difference to the result.

	In her IT1 a point advanced by Mrs Willing relates to an assertion the she was entitled to six weeks’ notice and that should be taken into account.  We have some difficulty with that.  In our judgment it does not found a reasonably arguable point of law that the effective date of termination was six weeks after 24 October.  But issues as to Mrs Willing’s belief that that later date was her effective date of termination may, and we say may, be relevant to the issue as to whether or not it was reasonably practicable for her to bring the claim in time having regard to the terms of section 111.  She also deals with this point 4 of a statement dated 23 April 1988, which she made to the Industrial Tribunal.  This statement indicates that during this period she was in receipt of some advice and alleges that she was taking part in some negotiations.  Again, that is a point which would be relevant to take into account as to whether or not it was reasonably practicable for her to bring the proceedings in time, pursuant to section 111.

	The difficulty that we find ourselves in on this preliminary hearing is that it does not appear from the Extended Reasons, given by the Chairman of the Employment Tribunal, that he considered the case as to extending time in the alternative, namely on the basis that, on any view, the employment came to an end on 24 October.  We therefore feel, that on a preliminary hearing, we do not have sufficient information to enable us to determine whether, if the matter were considered on that alternative view, Mrs Willing would have no reasonably arguable case that there should be an extension of time.  We have therefore concluded that it would not be right and at this stage to hold that there is no reasonably arguable point of law on this appeal.  

	We should say that we have discussed this at some length and at one stage we were not all in agreement on the point.  We are concerned that, on the assumption that the date of termination was 24 October, Mrs Willing may not have a reasonably arguable case as to the time being extended and therefore in allowing this appeal to proceed we are going to make some directions as to the filing of statements so that this Tribunal when it hears the appeal will have further information below then and may therefore be able to make a final determination on the point as to extension of time should they consider this to be appropriate.

	We are therefore going to direct that in 21 days Mrs Willing is to lodge an affidavit setting out the reasons why the application to the Employment Tribunal was not made within the three month period from 9 October or 24 October.  Put another way round, the reasons why the application was not made until the date upon which it was made.  Also she should put into that affidavit any other points she wishes to make as to why the discretion to extend time should be exercised in her favour.

	We will direct that the employers can put in an affidavit, if so advised, in response to that within 21 days of service of Mrs Willing’s affidavit.

	We will also direct that the Chairman  of the Tribunal be invited to comment on paragraph 14 of Mrs Willing’s statement to this Tribunal dated 29 January 1999.

	In her PHD form before this Tribunal Mrs Willing seeks leave to amend her Notice of Appeal.  We refuse leave to amend to add the point that it is unfair and against natural justice for the review to be carried out by the same person, because that is precisely what the review provisions provide for, it is not an appeal.  But we do give leave to add the other matters referred to in that document, that is the Appellant’s PHD form and those amendments are to be lodged within 21 days, of today.

	We will also give leave for Mrs Willing to appeal out of time against the review decision reached by the Chairman.  We do that as “a belts and braces” so far as procedure is concerned.  

	So far as the grant of leave both to amend the original Notice of Appeal and to bring an appeal against the review decision, we make it clear that both those grants of leave are subject to an application by the Respondent employers to set them aside, they not having been heard today.  The appeal against the review should be lodged within 21 days.

	We will categorise this appeal as C and give it a time estimate of half a day.