Appeal No.	EAT/1120/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 November 1999

Before
HIS HONOUR JUDGE D PUGSLEY
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE

MR M J ADAMS	APPELLANT

HER MAJESTY'S PRISON SERVICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

	JUDGE DAVID PUGSLEY:	There has been no appearance by Mr Adams. It is now 2.40 p.m.. Attempts have been made to telephone the appellant on the number that the Employment Appeal Tribunal has and it is unobtainable. The solicitors who have been acting for him Gross & Cunjel have never been formally on the records, but they have been contacted. They ceased advising him and notified that Employment Appeal Tribunal by letter of 3rd November. The Notice of Hearing was sent directly to the appellant on 26th October. The solicitor dealing with the matter, Mr Bailey, was not aware of the hearing date and did not know whether the appellant was aware of it. Mr Bailey had no other number for the appellant. 

	We consider that we have no alternative but to proceed. There has been no reason given to us as to why Mr Adams has failed to appear.

1.	Mr Adams, at all material times to which we are concerned, was a Prison Officer. He had been so for a number of years, from 25th September 1983. On 26th October 1998 he addressed a letter to the governor in which he says:

“I am going to give notice of my resignation from the prison service. I understand I need to work two weeks but I would also like to take what annual leave I am entitled to.”

. 	The governor read the letter in Mr Adams’ presence, wished him well and the appellant left the premises there and then not remaining to serve his evening shift which would have started about an hour later at 5.30 p.m.. He saw his doctor on 19th November who gave him sick notes backdated from 26th October and then successive visits expiring on 21st December 1998. The reason given was stress or depression. The appellant only returned to work to clear out his locker.

2.	By a letter dated 30th October the Prison Service in the person of the governor accepted the appellant’s resignation and stated that it would take effect from 8th November 1998. The appellant did not in fact receive that letter until 21st November 1998. Mr Adams had second thoughts about his resignation. He was going through a period of extreme stress and went to seek assistance and guidance from the Prison Officers Association, which on his behalf made representations to the Prison Service with a view to his being reinstated. The principal letter setting in train this cause of events was dated 20th November 1998. The request to be reinstated was rejected by the governor by letter on 18th December 1998. The tribunal continues:

“4.	… There is no evidence before me to the contrary than that it was sent in the ordinary course of post and would have been received by the applicant 48 hours or so later. The applicant was still seeking support from the Prison Officers Association. He wrote on 23 December to the Director of Personnel with a reasoned letter seeking again to be considered for re-employment and notwithstanding phone calls in January a response was not received to that letter until 26 February 1999. The applicant went on holiday to recuperate from his condition on 4 March for three weeks and on his return finally consulted solicitors on or about 16 April who advised him of the possibility of bringing a claim before an Employment Tribunal and the application which I have seen was prepared and signed on 23 April and presented on 27 April.
5	The first point for me to determine is what was the effective date of termination of the contract of employment. It could be argued that the contract came to an end when the resignation was accepted in writing which could be as late as 21 November. On the other hand the letter of 26 October is unequivocal and was accepted by the applicant’s line manager. The applicant did not return to work and I am satisfied that on 26 October 1998 the applicant intended to resign, he communicated that intention in clear terms and that communication was accepted verbally. If I am wrong on that then at the latest the contract came to an end on 21 November and if there can be any shadow on the terms of the letter of resignation, for instance because the applicant was unwell when he wrote it, it is clear that the letter dated 30 October and received on 21 November itself would amount to a dismissal. Certainly that was the end of the contract of employment. So the very latest day one can look at is 21 November but realistically the start date is 26 October 1998.
6	The applicant was receiving advice from the Prison Officers Association at all times from a person whom he regarded as highly experienced. The Prison Officers Association is the shoes of an advisor or of any other trade union advising people in these situations. I have referred in some detail to the steps that were taken to seek to reinstate the situation after withdrawal of the resignation. A resignation cannot be withdrawn unilaterally. There was no consent to its being withdrawn and I find that the applicant well knew, certainly by 23 December 1998, that his employment had come to an end.
7	I need not go too closely into the further facts. I have already considered them. Clearly the application presented on 27 April was presented out of time. The time limit expired at midnight on 22 January 1999. Was it reasonably practicable for the applicant to present his application within that time limit? I am satisfied that it was. The reason I say that is that why whilst I accept that he may not have known about Tribunals or time limits I must presume that the Prison Officers Association did and it was part of their duty in advising to draw these matters to his attentions. There was no reason in the word by a protected application should not have been put at a very early stage when it was known the contract had come to an end. In any event if I look at the rest of the facts the applicant had time from the rejection of his request to be reinstated dated 26 February until he went to Africa on 4 March or, following his return on about 26 March until 16 April, to see someone and take advice and indeed having taken advice on 16 April was a further 10 days before anything happens. So I say first of all that the contract ended on 26 October and it was reasonably practicable to present the application within three months. If it was then I do not consider that it is fair to extend the time limit to such a date as would allow the case to proceed and for those reasons I must dismiss the application as being outside the jurisdiction of the Tribunal.”

3.	The appellant’s Notice of Appeal is that the Chairman:

“1.	…misdirected himself as to the relevant grounds on which his decision should be placed or failed to pay sufficient regard to the grounds presented to him by the appellant for not having submitted his application within the statutory 3 month period of the date of his dismissal.
2.	That although the Chairman accepted that the appellant was genuinely unaware of the statutory time limit for submitting his application for unfair dismissal to the Employment Tribunal, that insufficient weight was attached to the absence of this knowledge.
3.	That the Chairman presumed that the Prison Officers Association were aware of the time limit and should have advised the appellant of it, but in fact there was no representative of the Prison Officers Association appearing before the Tribunal. It was therefore wrong for the Chairman to presume that the Prison Officers Association had in fact advised the appellant in the light of the evidence from the appellant that they had not done so.
4.	That no account had been taken at all of the fact that during a substantial part of the statutory period for submitting the application for unfair dismissal, the applicant had been suffering from certified depression.
5.	That during a substantial part of the statutory period of the applicant’s claimed constructive dismissal had been under review first by the Governor of Hollesley Bay Prison, and later by the head office of the Prison Service whose final decision was only communicated on the 26th February 1999 after the expiry of the statutory period on 22nd January 1999.
6.	That the Chairman failed to take into account that none of these agencies had advised the appellant of the statutory period and the need to submit an application for unfair dismissal without further delay.
7.	The decision in Haywood Hicks can be distinguished on the grounds that the appellant was ill with certificated depression for a substantial period of the statutory period for submitting his application for unfair dismissal.”

4.	We have considered all those grounds of appeal. In the very final analysis, we consider that this is a matter where the Employment Tribunal was entitled, on the facts before it, to reach the decision it did. For us to hold otherwise would be to usurp their function. There is, in our view, no error of law. We have done the best on the facts and the information before us and we have no grounds for taking any other course but to dismiss this appeal. There are minor errors (possibly typing errors) as to what was the expiry of the time limit but they are not material to the decision.