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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pets At Home Ltd v. Crossley [2001] UKEAT 1168_00_2002 (20 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1168_00_2002.html Cite as: [2001] UKEAT 1168__2002, [2001] UKEAT 1168_00_2002

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APPEARANCES

 

For the Appellant	MR W J DIAMOND Employment Consultant


 


MR COMMISSIONER HOWELL QC:

1. In this appeal, a firm known as Pets at Home Limited is seeking to have set aside as erroneous in law the decision of the Manchester Employment Tribunal contained in Extended Reasons, at pages 3-7 of the appeal file before us sent to the parties on 22 August 2000 after a hearing on 14 August 2000. The only issue being dealt with by the Tribunal on that date, which was at a preliminary hearing, was whether the complaint of unfair dismissal presented by one of the former employees of the firm Mr Mark Crossley, which was received at the Tribunal office on 9 May 2000, should or should not be accepted by the Tribunal in exercise of its power under Section 111(2) of the Employment Rights Act 1996. As the employer had pointed out, that presentation date fell just outside the end of the prescribed period of three months beginning with the effective date of termination of Mr Crossley's employment with them as a store manager which had been on 8 February 2000.
2. It is not necessary for us to go into the substance of the dispute between the parties, which if the Tribunal's decision on the preliminary hearing remains in effect after this appeal will need to be gone into at a substantive hearing before the Employment Tribunal itself. The unanimous decision of the Tribunal on the preliminary issue was that the Applicant's complaint of unfair dismissal, despite not having been presented to the Tribunal before the end of the period of three months beginning with the effective date of termination of his employment should be entertained by Tribunal in the exercise of their discretion under Section 111(2) (b), because the Tribunal recorded that they were satisfied that it was not reasonably practical for the complaint to be presented before the end of the three month period and that it had been presented within a reasonable time thereafter.
3. The facts leading up to the presentation of Mr Crossley's complaint appear from the Tribunal's statement of Extended Reasons which inter alia recorded that:

"4. The Applicant accepted that he was summarily dismissed from his employment with the Respondents on 8 February 2000. His Originating Application alleging unfair dismissal was received by the Tribunal at Barlow House, Minshull Street, Manchester on 9 May 2000".

The Tribunal then referred to the terms of Section 111(2) of the Employment Rights Act and continued,

"6. The Applicant told the Tribunal on oath that, having been summarily dismissed on 8 February 2000 in circumstances which he considered unjust, he appealed against that decision by letter sent recorded delivery which was received by the Respondents on 15 February 2000. Having heard nothing for some time, he telephoned the Respondents on a number of occasions, at least three, enquiring as to when his appeal would be heard to be told on each occasion that the matter was being processed.

7. The Applicant consulted a solicitor shortly after he was dismissed who advised him of the three month limitation period for presenting a complaint to an Employment Tribunal, which the Applicant already vaguely knew about. He told the Tribunal, however, that the solicitor suggested that he pursue his appeal under the Respondent's internal procedure before presenting a complaint to the Tribunal. The Applicant told the Tribunal, however, that he did not realise nor did the solicitor emphasise the strict application of the three month period.

8. Having heard nothing from the Respondents regarding his appeal, the Applicant again consulted his solicitor at his office in Chorley on Friday 5 May 2000, he being concerned about the three month period. The Applicant told the Tribunal that the Originating Application was completed and signed by him in the solicitor's office at approximately 4.00pm on 5 May 2000 and the solicitor told him that the would fax a copy of that application to the Tribunal on that day. None was received. However he also told the Applicant that he should complete a full statement of the details of his complaint and should post the Originating application together with his statement to the Tribunal that day which, in the solicitor's view, would be adequate to comply with the time limit.

9. The Applicant said that he drove his car to the local Post Sorting Office and sat in the car writing out the seven-page document which is attached to the Originating Application. He signed it and dated it 6/5/00, which, he maintains, was an error on his part because, of course, he maintains it was 5 May 2000.

10. The Applicant said that he then placed the Originating Application and his statement into an A4 brown envelope with a first class stamp, wrote "1^st" on the envelope and addressed to Alexandra House, 14-22 The Parsonage, Manchester, M3 2JA, which was the address shown on the documentation relating to the Originating Application. He says that he posted the envelope containing the Originating Application and statement into the post-box outside the Post Office at approximately 6pm, the final collection time being 6.30pm. He assumed that the Originating Application would arrive at its destination the next day, Saturday 6 May 2000".

4. We interpose that it is not in dispute that the local post office there being referred to as having been the place where the Originating Application was posted by the Applicant was in Chorley; and that is some 20 miles away from the Tribunal offices in Manchester to which it was to be delivered. The Tribunal continued as follows:

"11. When the Tribunal first retired to consider this matter, it had regarded to the case of Pritam Kaur v S Russell and Sons Limited 1973 1QB 336, in which Lord Denning at page 349 said: "when a time is prescribed by statute for doing any act, and that act can only be done if the Court Office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the Court Office is open.

12. Since the Applicant was summarily dismissed on 8 February 2000, the time for presentation of a complaint of unfair dismissal would, in normal circumstances, expire at midnight on 7 May 2000. The 7 May 2000 was a Sunday and it appeared to the Tribunal that this was a "dies non". Mrs Knowles who then appeared for the employers on the hearing reminded the Tribunal, however, of the case of Swainston v Hetton Victory Club Limited [1983] ICR 341 in which it was essentially concluded that, where it is possible to present a complaint by posting it through the Tribunal's letterbox, then the principle laid down in Pritan Kaur would not apply. It was, however, further established in that case that if an Applicant or his solicitor arrived at the Employment Tribunal and found no letterbox, the Applicant might be able to show that it was not reasonably practicable for him to present the complaint within the relevant period.

13. In December 1999, this Employment Tribunal removed temporarily from Alexandra House to Barlow House in order that substantial refurbishment could be carried out at Alexandra House. That refurbishment was ongoing in May of 2000. The works were so extensive that the Tribunal was satisfied that it would not have been possible for a complaint practicably to have been delivered to Alexandra House at the material time. The Applicant did not, however, actually travel to Manchester with a view to delivering the envelope to Alexandra House – he told the Tribunal that he was not familiar with Manchester City Centre. It is not clear whether, if he had attended at Alexandra House, there would have been any sign directing him to Barlow House.

14. In the light of the information before it, the Tribunal felt that, in this particular case, the rule in Pritan Kaur applied and that Sunday 7 May 2000 was in fact a "dies non" and that therefore the relevant period expired at midnight on Monday 8 May 2000.

15. If that was the case, then, if the Applicant had posted the Originating Application either on 5 or 6 May 2000, he would have been reasonable in assuming that it would have been presented to the Tribunal before the end of the limitation period.

16. The Tribunal did, however, go on to consider what the situation would be if it was wrong in determining that Sunday 7 May 2000 was a "dies non".

17. The Applicant was adamant that he posted the envelope containing the Originating Application no later than 6pm on Friday 5 May 2000. Mrs Knowles on behalf of the Respondents challenged the Applicant's evidence, pointing to the fact that the 7 page document had the date 6/05/00 on it and the envelope has a post office stamp on it dated 7 May 2000. However, although there was some doubt on the issue, the Tribunal was not prepared on the evidence available to disbelieve the Applicant's evidence that he had posted the envelope at about 6pm on Friday 5 May 2000.

18. The Tribunal is mindful of the fact that the authorities indicate that an Applicant should not rely on the post office being able to deliver first class mail the next day. However the Tribunal was advised by its administrative staff that, during the period that the Tribunal has been temporarily relocated in Barlow House it has experienced delays in the delivery of mail which has been redirected from Alexandra House. The Tribunal therefore took the view that there was, at the very least, a possibility that, by reason of the temporary relocation of the Tribunal to Barlow House, circumstances could have arisen in which, had the Tribunal still been at Alexandra House, the envelope would have arrived on Saturday 6 May 2000 instead of Tuesday 9 May 2000. Such would not, of course, have been attributable to any fault on the part of the Applicant.

19. The Tribunal was not satisfied that the Applicant's reason for delaying the presentation of his complaint, i.e. that he was awaiting the outcome of an internal appeal and/or did not realise the full significance of the three month limitation period, were sufficient to amount to circumstances in which it was not reasonably practicable for the complaint to be presented before the end of the period of three months.

20. However, having regard to the temporary relocation of the Tribunal from Alexandra House to Barlow House, and the possible delay that this may have caused in the receipt of the envelope containing the Applicant's complaint, the Tribunal felt that those amounted to circumstances in which the benefit of any doubt should be given to the Applicant. Furthermore, although this did not affect the Tribunal's assessment of the strict legal interpretation of the situation, the Respondents most certainly contributed to the situation that arose by reason of that fact that, notwithstanding an immediate appeal by the Applicant, no steps whatsoever were taken by them to arrange a hearing of the appeal during the three month period, despite protestations from the Applicant.

21. In all these circumstances, having regard to the prejudice that would be caused to the Applicant if the Tribunal refused to accept jurisdiction, whereas no prejudice to the Respondents could be identified, it was felt that this was a case where the Tribunal was entitled to extend the period for presentation of the complaint for the very short period involved.

22. Accordingly the Tribunal is satisfied that it was not reasonably practicable for the Applicant's complaint to be presented before the end of the period of three months beginning with the effective date of termination and that the complaint was, in fact, presented within a reasonable time thereafter.

23. Therefore the Tribunal has jurisdiction to hear the Applicant's complaint of unfair dismissal"

5. The Tribunal concluded by giving directions for the case to be listed for substantive hearing. That substantive hearing has, as we understand it, not yet taken place since the employers have brought this appeal which was set down for preliminary hearing by order of a different panel of this Employment Appeal Tribunal on 31 August 2000 and is now for full hearing before us. The grounds of the appeal as set out in the employer's Notice of Appeal were that no Tribunal properly directing itself could have concluded on the evidence recited in paragraph 17 of the Extended Reasons that a document dated by the Respondent (that is the Respondent to the appeal, the Applicant before the Tribunal) 6 May and post marked by the post office 7 May should reasonably have been expected to have been delivered at any time in advance of 8 May 2000: secondly that they had erred in paragraph 20 of their Extended Reasons in treating the question as being one of the benefit of the doubt, whereas the test is a strict statutory test with the burden on the Applicant to show that it was not reasonably practicable for the complaint to have been presented in time.
6. Those contentions have been helpfully amplified before us by Mr Diamond who appeared on behalf of the Appellants. There was no appearance by Mr Crossley, for reasons which he has indicated in a letter to the Tribunal. Mr Diamond has helpfully set out his submissions in a skeleton argument and amplified them in oral argument before us. The main thrust of his submission was that as argued in paragraph 6 of the Notice of Appeal, the Tribunal had comprehensively misdirected themselves in their approach to this case; in particular in the initial question of fact they were required to address under Section 111(2) (b) as to whether they were satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. Pointing to such references as to "the benefit of the doubt" in paragraph 20, and 'possibilities and circumstances which might have arisen' in paragraph 18, and an apparent balancing exercise by the Tribunal of merit between the two sides in paragraphs 20 and 21, Mr Diamond submitted that the Tribunal had, in effect, improperly allowed questions of discretion to infect their judgment on the initial question of fact as to "reasonably practicable". He pointed out that that is the initial condition which must be satisfied under Section 111(2) (b) before any question of exercising discretion to allow in proceedings within a reasonable time after the expiry of the statutory period may be entertained by the Tribunal. Mr Diamond emphasised in particular that the wording of Section 111(2) (b) requiring the Tribunal to be satisfied on that issue of fact before the jurisdiction can be accepted, as putting when he described as a burden of proof upon the Applicant. Thus if there was any question of the benefit of a doubt being accorded to one side of the other, the Tribunal had erred and accorded it to the wrong side.
7. In our judgment, it is of course the case that before the Tribunal can exercise their power to accept proceedings outside the prescribed time under Section 111(2) (b), that provision does require the Tribunal to be satisfied as to the factual question of it not having been reasonably practicable for the complaint to be presented earlier. In that sense there is a factual burden to be discharged before the Tribunal can move on to the second question as to whether it is reasonable for the proceedings to be accepted, which is indeed more a matter of discretion. But in making that factual assessment of whether the initial condition under Section 111(2) (b) is met, the Tribunal are in our judgment determining what is pre-eminently a question of fact and degree for the Tribunal themselves to assess. This Appeal Tribunal will only intervene to set aside the decision of an Employment Tribunal on such an issue if it is clear that the Tribunal has misdirected itself in addressing the wrong question or has in some other way erred in law. As Lord Justice May said in Palmer v Southend Council [1984] ICR 372 at page 385, the meaning of the words "reasonably practicable" here involves questions of degree. To construe the words as the equivalent of "reasonable" is to take a view too favourable to the employee. On the other hand "reasonably practicable" must mean more than what is reasonably capable physically of being done.

"Perhaps to read the word 'practicable' as the equivalent of 'feasible' as Sir John Brightman did in Singh's case, and to ask colloquially and untrammelled by too much legal logic "was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months" is the best approach to the correct application of the relevant subsection. What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie:" [1984] ICR AT 384H – 385B

May LJ then considers a number of factors which may be taken in account by the Tribunal and concludes at page 385 F

"Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account. Returning to the present appeal we do not think that the majority of the Industrial Tribunal misunderstood the factual question which they had to decide, nor that in deciding it they applied any test or principle wrong in law".

See also per Potter LJ in Schultz v Esso Petroleum [1999] IRLR 488 at paragraphs 13-15.

8. So the question we have to address, similar to that posed by Lord Justice May, is whether this Tribunal misunderstood the factual question they had to decide or applied any test or principle wrong in law. In their Extended Reasons which we have read, the Tribunal did make clear findings as to the non-practicability of any manual delivery on the crucial Sunday, 7 May 2000, because of the refurbishment works which, as they found as a fact, were still ongoing in May of 2000. And as they specifically found in paragraph 13 of their Extended Reasons, the works were so extensive that the Tribunal was satisfied that "it would not have been possible for a complaint practicably to have been delivered to Alexandra House at the material time."
9. That appears to us to conclude against the employers any question of whether manual delivery would have been practicable on that date. Mr Diamond's argument on that issue was that the Tribunal had misdirected themselves in addressing that issue at all, since the evidence showed that no actual attempt at manual delivery had been made. His submission on that point appears to us misdirected: the Tribunal were there making a finding of fact and determining that that particular method of delivery was not reasonably practicable. That was an entirely proper thing for them to be doing, before going on to consider alternative methods by which delivery might have been effected: in particular the postal submission of the application which was what the Applicant in fact attempted. We can see no ground for criticism of the Tribunal in relation to the way they approached the issue of possible manual delivery. We were satisfied that in this context the Tribunal did not err in law in distinguishing the authority cited to them, Hetton Victory Club v Swainston [1983] ICR 341. That case appears to us on the Tribunal's findings properly distinguishable on the ground identified by Lord Justice Waller at the end of his judgment at page 345 E-F, where he made clear that what was said in that case was not to override any question of whether delivery through a letterbox at the Tribunal Centre was not as a matter of fact possible because no letterbox was there.
10. On the question of postal delivery, although in some respects the Tribunal's findings are in our view, not as clearly expressed as they might have been, we have concluded that on a fair reading of the decision taken as a whole, what this Tribunal were deciding, and expressing themselves satisfied about, was that as a matter of fact this Applicant did do everything that could reasonably be required of him to effect delivery of his application by post within the prescribed time limit. On the basis in particular of what appears to us the Tribunal's express acceptance of the Applicant's evidence on oath to them that he had posted the envelope at about 6pm on Friday 5 May 2000, it appears to us that the Tribunal did have material before them on which they could be properly be satisfied that the condition as to non-practicability in Section 111(2) (b) was met; as that phrase has been interpreted in the authorities in this Tribunal and the Court of Appeal on the effect of attempts at submission of applications by post when postal delays are experienced.
11. The principles to be applied, and what appears to us to be a relatively liberal interpretation of the test of reasonable practicability in this context, appear from two authorities in particular, first the judgment of Mr Justice Phillips as he then was given in this Tribunal in 1976 in the case of Burton v Field Sons & Co Limited [1977] ICR 106 at pages 108G –109D. There Mr Justice Phillips said

"The words "reasonably practicable" have received a wide interpretation in the decision of the Court of Appeal in Dedman v British Building and Engineering Appliances Limited [1974] ICR 53. The Court of Appeal by a majority, Stamp LJ dissenting, gave to those words a meaning which they would not ordinarily hold; and, as Lord Denning M.R. pointed out, it is difficult to give a dictionary definition to the meaning which the Court of Appeal has ascribed to the words and it is easier to go by way of example. Amongst the examples which he gives is this at p. 60:

"Strictly speaking it is nearly always 'practicable' for a man to present his claim within four weeks" – the time then in force – "unless he is so ill as not to be able to write and has no one to do it for him. Take a case when he posts his complaint two days before the four weeks are up, and it is delayed in the post, so that it arrives one day too late. Strictly speaking it was 'practicable' for him to have presented it in time, because he could have posted it one day earlier. But the English court would hold him saved by the escape clause on the ground that it was 'not practicable': see Anglo Continental School of English (Bournemouth) Limited v Gardiner [1973] ICR 261".

He approves the view expressed as an obiter dictum by Sir Hugh Griffiths in that case who said, at p. 267:

"If an Applicant shows that he posted his application in time to arrive in the ordinary course of post within the four week period but for some reason unknown to him it is not delivered to the offices of the Tribunal until after the expiry of the four week period, we should expect the Tribunal to be satisfied that it was not practicable to present the complaint within this four week period and to extend the time".

So, Lord Denning M.R. said, and Scarman LJ agreed, that if you have a case where a claimant does an act within the period prescribed, which in the ordinary event would result in the complaint being made within the specified period, and that is prevented from having its normal and expected result by some unforeseen circumstance, it can be said that the case is one, and indeed it ought to be said that the case is one, where it was not "reasonably practicable" for the complaint to be presented within the period of three months."

12. We emphasise that there Mr Justice Phillips' remarks are made in the context of the longer three month period which was then in force and material in the case before him; and not the shorter four week period which had been in force at the time of Lord Denning's original comment.
13. More recently, in a further case Beanstalk Shelving v Horn [1980] ICR 273, another decision of this Tribunal the judgment, given by Mr Justice Slynn as he then was, emphasises the same principle, and the same liberal interpretation of reasonable practicability in the context of attempts to submit applications by post when there is a delay in the course of the post. Lord Justice Slynn said at page 277 A-F, having reviewed the earlier authorities

"Accordingly, on the basis of these authorities, the question is whether if a letter if posted by first class post, on a particular day, it can be expected in the ordinary course of post to arrive within the time limit for making an application. Here, the industrial tribunal were confident that it could have been expected, in the ordinary course of post, having been sent first class, to have arrived on the following day. The Tribunal would not appear, it would seem from the notes of evidence, to have had a great deal of evidence as to the position; but, it is clear they were told it was sent first class; and they were referred to what is said in the notes to R.S.C., Ord. 65, r. 5 (4), in the Supreme Court Practice (1979). There it is said that if a letter is sent by first class mail, service will be treated as having been effected on the day next after posting. Moreover, reference was apparently made to Practice Direction (Central Office: First and Second Class Mail) [1968] 1 W.L.R. 1489, set out in The Supreme Court Practice (1979), vol. 2, 926. That refers to an announcement by the Post Office that, as from September 16, 1968, first class mail will usually be delivered on the day next after posting. That is now, of course, some 11 years ago, and, as Phillips J. pointed out in Burton v Field Sons & Co Ltd [1977] ICR 106, the position may have changed. On the other hand we have been told (and it is not challenged by Mr. Doman, who, it is fair to add, was not present before the industrial tribunal) that the solicitor who was handling this matter did give evidence that in the ordinary way a letter posted first class in Liverpool could be expected to arrive in London on the following day. It seems to us that there was, accordingly, material upon which the industrial tribunal could come to the conclusion that, in the ordinary course of post, the letter would have been expected to arrive on the following day. It seems to us that the tribunal have therefore considered the matter in the light of authorities (even although all the cases were not cited to them) and that there was evidence upon which they could come to the conclusion that in the circumstances it was not reasonably practicable for the claim to have been presented within time, giving to that phrase the meaning which the Court of Appeal and this tribunal have given to it in the past".

14. So the question for us to address, following those authorities is whether there was material before the Tribunal in this case on which they could properly be satisfied that in the circumstances it was not reasonably practicable for the claim to have been presented within time, giving to that phrase the wider meaning which appears from the Court of Appeal and other authorities. Looking back at the facts of the present case and the Tribunal's findings, we are satisfied that the Tribunal did not misdirect itself as to the question to be addressed, since it expressly referred to the provisions of Section 111 and expressed its conclusion in terms that it was not reasonably practicable for the Applicant's complaint to have been presented before the end of the period of three months. We are further satisfied that the Tribunal did have before it sufficient material, and recorded sufficient findings as properly read, to support their conclusion that it was not reasonably practicable in all the circumstances. We have regard in particular to their acceptance of the Applicant's evidence that he posted the envelope at about 6pm on the Friday, and to the fact that (as the Tribunal themselves took into account) the Tribunal offices were experiencing upheaval which made it impossible to deliver letters and documents by hand to the address specified on the originating application documents themselves; further that delays had been experienced in the delivery of mail to the other offices where the Tribunal administration and the Tribunal itself had been temporarily relocated. That material, to which the Tribunal did expressly refer, appears to us to be sufficient material on which the Tribunal in the circumstances could properly have reached the conclusion they did. We emphasise that the assessment of that material, and the evaluation of the worth of the evidence and other information before the Tribunal, was a matter for the Tribunal; and not for this Appeal Tribunal to indicate its own view on, one way or the other.
15. We have not been satisfied that there is anything in the alternative ground Mr Diamond sought to argue, that the Tribunal were wrong to have taken into account their own understanding from their own administrative staff as to the practical difficulties to which the relocation had given rise, including the delay and delivery of mail. Nor were we persuaded that there was any breach of "natural justice" in their having done so without an opportunity having been given to the employer's representative to challenge what the Tribunal themselves understood to be the position from their own experience; or in failing to afford an opportunity for Mrs Knowles who appeared on the employer's behalf to cross examine particular members of the tribunal's own administrative staff as to what the real difficulties were, which was the course Mr Diamond suggested to us the Tribunal ought to have adopted if it was going to take account of such matters at all.
16. The difficulties experienced by the Tribunal itself do appear to us to be a matter which the Tribunal may entirely properly take into account on an application for extension of time under Section 111 such as this one, in assessing the issue of reasonable practicability; and for our part we have not been satisfied that the course of cross examination of the Tribunal officials on such a matter was necessary in order for the Tribunal to arrive at a fair assessment on the question of reasonable practicability which was what they were required to determine. Indeed we would consider that a question of potential injustice to an Applicant might arise if a Tribunal took the converse position suggested by Mr Diamond: that it should exclude such matters from its consideration even though they might be within its own knowledge as the reason why an Originating Application submitted within due time could arrive late.
17. Similarly we have not been satisfied that the Tribunal erred in another respect suggested by Mr Diamond, in their reference in paragraph 21 of their Extended Reasons to there being no prejudice to the Respondents that could be identified if the application was allowed in. It appears to us that the Tribunal were there directing their minds entirely to the question of reasonableness: (in other words the second question that arises under Section 111 once the issue of practicability was decided in favour of the Applicant), and to be saying no more than that there would be no prejudice to the Respondents in the conduct of the proceedings themselves if they were allowed to continue. We think it would be an unreasonable interpretation of what the Tribunal were there saying to read it as Mr Diamond suggested, which was that they had totally overlooked the fact that of course if the proceedings were not admitted the employers would be relieved from the responsibility of addressing them and meeting any claim that might arise. The loss of the position they would have been in from a strict application of the three month time limit is of course in that sense a "prejudice" but we have not been satisfied that the Tribunal really overlooked that in what they said in paragraph 21.
18. For those reasons having considered all the points that were put in front of us by Mr Diamond, we have not been satisfied that the Tribunal in this present case did other than approach the matter of reasonable practicability in accordance with the authorities, on the basis of the findings that were open to them to make and they did in fact make, and accordingly we unanimously dismiss this appeal