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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Francis v London Underground Ltd [2001] EWCA Civ 1662 (30 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1662.html Cite as: [2001] EWCA Civ 1662

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday 30 October 2001

Tuesday 30 October 2001

1. LORD JUSTICE KEENE: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal dated 25 July 2001, dismissing the applicant's appeal from an Employment Tribunal sitting at London Central. The Employment Tribunal had dismissed Mr Francis' originating application in which he claimed unfair dismissal, constructive dismissal and racial discrimination during his employment with the respondent, London Underground Ltd ("LUL"), between 16 June 1984 and 5 May 1997.
2. The originating application was issued on 12 May 2000. It will at once be seen that Mr Francis faced certain difficulties with his application, arising from the three months' time limit on such applications by virtue of section 11(4) of the Employment Rights Act 1996. In fact the difficulties here were somewhat greater than that. Mr Francis had presented earlier originating applications in 1996 and 1997, making somewhat similar claims. Both those applications, according to the Employment Tribunal, were struck out in 1997 and there was no application for a review, nor was there any appeal against the striking-out.
3. The Employment Tribunal, when dealing with the present application, saw that history as being relevant in two ways. First of all, as being relevant to its judgment as to whether it was or was not reasonably practicable for Mr Francis to have made the application before the end of the three months - see section 11(4)(b) of the 1996 Act. The Tribunal concluded on this that it was quite satisfied that he could have presented his claim within three months. It referred to the fact that he had done so on two occasions in the earlier originating applications. Secondly, the Tribunal concluded that the claim made in 2000 duplicated those made in 1996 and 1997 and was frivolous and should be struck out.
4. Mr Francis appealed to the Employment Appeal Tribunal, alleging in his notice of appeal that he had not been given an opportunity to demonstrate that at the time of his dismissal he was unaware that the termination of his employment constituted unfair dismissal. He also claimed that he was dismissed on account of having brought proceedings against LUL. At a preliminary hearing of the Employment Appeal Tribunal on 25 July 2001 it was held that the appellant had no arguable case to proceed to a full hearing. In particular, the Employment Appeal Tribunal concluded that Mr Francis had not demonstrated that it was not "reasonably practicable" in accordance with the Employment Rights Act 1996 for him to have brought his case within the three-month time limit. The Appeal Tribunal emphasised that Mr Francis had demonstrated that he had a full knowledge of the procedure and the time limits involved because the record showed that he had successfully persuaded the Industrial Tribunal to extend time back in 1997.
5. In his appellant's notice seeking permission to appeal to the Court of Appeal, Mr Francis contends that the EAT, and indeed the Employment Tribunal, failed to take into account crucial evidence, namely that he was unaware of his claim for constructive dismissal at the time when he ought to have submitted his claim. He contends today that it was not reasonably practicable for him to present his originating application within three months of the end of his employment and the other matters of which he complains.
6. Particular emphasis is placed by Mr Francis on a tape-recording which he made of a conversation between himself and a train crew manager, Mr Pollard, on 13 August 1996. There is a transcript of that conversation in the papers before me. It is dated 20 April 1997 and I have read it. Mr Francis says that this is crucial evidence. It shows continuing discrimination by LUL so that there was a continuing act of discrimination in the sense indicated in the decision in Sougrin v Haringey Health Authority [1992] IRLR 416. But, of course, I have to bear in mind that, even if that is right, this continuing act of discrimination relates to his period of employment with LUL, a period which ended in May 1997. The conversation which has been tape-recorded was, as I have already indicated, one which took place in August 1996. What is very clear - and Mr Francis does not seek to dispute this - is that he was well aware of that conversation at the time it took place in 1996 and he had a transcript of it available by April 1997. I cannot see that it provides any basis for arguing that there should have been an extension of time for his claim until 12 May 2000.
7. Mr Francis, who has presented his own case this morning with great conviction and some force, argues that there was never a full hearing of his claim in 1997. He clearly takes the view that he should not have been struck out at that time, because he contends he did all that was required of him by the Employment Tribunal, in contrast to LUL, which fell short of what was required of it. He accepts that the application was struck out at that time and that he did not appeal. But he says that he did not know his rights and, in addition, he had a lot of other problems at that time, including rent arrears and eviction problems. Some of his papers were in storage. It was only in the year 2000 that he, as he put it, picked up his life and was able to see the matter clearly and to present the originating application with which I am now concerned.
8. I regret to say that on reflection I cannot see that this provides a basis for saying that it was not reasonably practicable for him to present his originating application within three months. Moreover, he now needs an extension of time by something like two and three quarter years. The three-month time limit is an important restriction which goes to the jurisdiction of an Employment Tribunal. Many of those who have employment problems and discrimination problems do also have various personal problems of the kind to which Mr Francis has referred. They may sometimes justify an extension - normally a relatively short extension - of time, but I cannot see that those particular factors in this case justify an extension of the length which Mr Francis requires. On looking at the record, he clearly knew quite a lot about the way in which Employment Tribunals and their predecessor Industrial Tribunals operated, because he sought and obtained extensions of time in the past. He is able to understand a great deal about the rules relating to these matters and yet, as I have already indicated, he took no action to appeal the striking-out decision back in 1997.
9. There is no way in which the Employment Appeal Tribunal can in these circumstances be said to have erred in law in its approach. It would not be a kindness to Mr Francis to let this matter go further. There is no prospect of an successful appeal in this case against the Employment Appeal Tribunal decision and this application must be dismissed.
ORDER: Application dismissed