Appeal No. EAT/1367/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR S M SPRINGER MBE

MR N EKWULUGO	APPELLANT

CHUBB SECURITY PERSONNEL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	DR EZE
(Representative)
New Ages Legal Consultancy
New Ages House
2 Drayton Park
Highbury
London
N5 1NU	

JUDGE PETER CLARK:
1.	By a decision with extended reasons promulgated on 1 October 2001, following a hearing held on 18 September, an Employment Tribunal sitting at Watford dismissed the Appellant, Mr Ekwulugo’s complaints of unfair dismissal and unlawful deductions from wages brought against his former employer, the Respondent Chubb Security Personnel, on the grounds that those complaints were time-barred.  Against that decision Mr Ekwulugo brings this appeal.

Background
2.	The Appellant commenced his employment with the Respondent as a security officer in September 1998.  On 17 January 2001 he attended a disciplinary hearing at which he was orally dismissed without notice for alleged gross misconduct, namely sleeping on duty.  On the next day, 18 January, the Respondent wrote to the Appellant.  The letter said:

“Following the disciplinary hearing on 17 January 2001 with myself, I am writing to confirm my decision to terminate your employment effective from 17 January 2001.”

The letter went on to inform the Appellant of his right of appeal.  He exercised that right but his appeal was finally dismissed, it appears from the Respondent’s notice of appearance on 21 February 2001.”

3.	Prior to the hearing of that appeal the Appellant consulted professional advisers, New Ages Legal Consultancy, of Holloway, London N5.  His representative on the face of his Originating Application was Dr Eze, who appears before us on his behalf today.  At the hearing on 18 September he was represented by a colleague of Dr Eze, Mr Kingsley Medueke, described as a legal representative, because Dr Eze tells us he was in hospital at the time.  

4.	On 12 April 2001 a completed form IT1 was posted first class, recorded delivery to the London Central Employment Tribunal at Woburn Place.  That was the day before the Easter weekend.  Friday 13 April and Monday 16 April were bank holidays.  The Originating Application is date stamped as received by the London (Central) Employment Tribunal on 20 April.  It was subsequently forwarded to the Watford Tribunal, which date stamped it 23 April.  

The Tribunal Decision
5.	The first question for the Tribunal was what was the effective date of termination of the contract of employment for the purposes of section 97 of the Employment Rights Act 1996.  The Tribunal found that it was 17 January 2001, the date on which the Appellant was, as he conceded (reasons, paragraph 4), orally summarily dismissed (ERA section 97(1)(b))

6.	It followed that time for bringing his complaint of unfair dismissal ran from that date.  There was no submission made that any later date ought to be taken for the purposes of the unlawful deductions claim.  Thus, for the purposes of both section 111(2)(b) and section 24(3) ERA, the complaints were presented outside the ordinary limitation period, that is a three month period expiring 16 April 2001.

7.	The next question was whether, in both complaints, the Appellant could show that it was not reasonably practicable to present the complaint within time.

8.	As to that, the Tribunal directed themselves, in accordance with the judgment of Mr Justice Wood in St Basil’s Centre Ltd v. McCrossan (1991) IRLR 457, to the High Court Practice Direction (1985) WLR 489, that letters sent first class will be deemed to arrive on the second working day after posting.

9.	In this case, bearing in mind the Easter holiday, the second working day after posting was 18 April 2001.  The Tribunal observed that the Appellant’s representative had a fax machine, and that it was apparent on face of the form IT1 that the same could be faxed to the Tribunal; alternatively the Appellant’s representatives’ offices were a short tube ride from the London (Central) Office at Woburn Place and the form could have been delivered personally or by courier.  All these modes of delivery could have ensured proper presentation on 12 April, that is within the 3 month primary limitation period.

10.	In these circumstances the Tribunal was not persuaded that it was not reasonably practicable for the Appellant, who was represented, to present his application in time.  Consequently it was dismissed.

The Appeal 
11.	In this appeal, Dr Eze takes the following points.  First, he submits that there was no evidence before the Tribunal on which they could conclude that the Originating Application was received on 20 April 2001.  That is incorrect.  In accordance with the Tribunal’s usual procedure, the Originating Application was date stamped by a member of the London Central office staff the 20th April 2001.  Therefore, prima-facie that was the date on which the Application was received at that office and therefore the date of presentation.  

12.	It was for the Appellant to adduce evidence to establish that some earlier date was the true date of receipt of the Originating Application.  In the course of argument before us, Dr Eze has told us that the preliminary hearing to decide the limitation issue was notified to the parties on 27 June 2001.  Having received notice of the hearing directed to the question of limitation Dr Eze tells us that a telephone call was made to the Post Office, the package having been sent recorded delivery, to ascertain the date of its arrival at Woburn Place.  Apparently he was given an address to write to, but for reasons which are wholly unexplained, no letter was written to the Royal Mail until October 2001, that is after the hearing before the Employment Tribunal.  

13.	A reply was received which has been placed before us from Royal Mail dated 2 November 2001.  It makes absolutely no sense.  It thanks New Ages for their enquiry of the 23 October about an identified first class recorded item posted on 17 July 2001 to the Woburn Place Central Office.  The letter continues; 

“I can confirm that this item was delivered to that address on 23 April 2001. “

It is self evident that that letter gives incorrect information.  No letter posted on 17 July 2001 could arrive on 23 April, and yet no follow up letter appears to have been sent by New Age; certainly no further correspondence was received from the Royal Mail.  

14.	Without a hint of irony Dr Eze has invited us to adjourn the appeal so that further enquiries can be made as to the date on which this package was received.  We hope we have made it clear that we are not a Tribunal of fact; our jurisdiction is limited to correcting errors of law.  We shall not grant an application for an adjournment so that the Appellant’s advisors can make the enquiries which they ought to have made prior to the Employment Tribunal hearing.  We therefore reject his first submission and we are quite satisfied that the Tribunal was entitled to find, on the basis of the date stamp on the Originating Application that it was indeed received by the Tribunal on 20 April.  

15.	The second point relates to the Tribunal’s finding, rejecting the Appellant’s case that he or his advisors had a reasonable expectation that a letter posted first class, recorded delivery on 12 April 2001 would have arrived before the expiry of the primary limitation period, which was Monday 16 April.  

16.	We can see no basis for challenging that conclusion.  It ought to have been apparent to the Appellant’s advisors that a letter posted recorded delivery on 12 April would not be delivered on Good Friday 13 April, and would not be received when the offices were closed on Saturday 14 April nor on Sunday 15 April, nor Bank Holiday Monday 16 April.  

17.	In these circumstances we reject that submission and we further reject the submission that it was irrelevant for the Tribunal to take into account, in deciding the reasonable practicability question, that the Appellant’s representative had a fax machine, which could have been used on 12 April to present the complaint within time and further that the Appellant’s Advisors offices were a short distance from the Tribunal, such that the Originating Application could have been delivered by hand or by courier on 12 April.  In these circumstances we have concluded that this appeal raises no arguable point of law and consequently it must be dismissed.