Appeal No. UKEAT/0367/08/DM 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2008

Before
HIS HONOUR JUDGE ANSELL
(SITTING ALONE)

SCHIEDEL RITE-VENT LIMITED	APPELLANT

MR G TATE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M PURCHASE
(of Counsel)
Instructed by:
EEF Northern Association	
Derwent House
Town Centre District 1
Washington
Tyne & Wear  NE38 7SR
	
For the Respondent	MISS N LING
(of Counsel)
Instructed by: 
Rowley Ashworth Solicitors
Suite 18
Josephs Well
Hanover Walk
Leeds  LS3 1AB	

SUMMARY

JURISDICTIONAL POINTS:  
	Claim in time and effective date of termination
	Extension of time: reasonably practicable

Employment Judge failed to make key findings at to why claim form not filed within the time limit.

HIS HONOUR JUDGE ANSELL
1.	This is the hearing of an appeal against a pre-hearing review decision given by Employment Judge Speker, sitting alone at Newcastle on 14 May 2006, reasons sent on 30 May 2006, in which he determined that the Tribunal had jurisdiction to hear the complaint of unfair dismissal and in particular this involved in coming to a conclusion that it was not reasonably practicable for the claim to have been presented by 16 February 2008 and that it was presented within a reasonable time thereafter, namely 25 February 2008.

2.	The claim related to unfair constructive dismissal in relation to a reported redundancy.  The effective date of termination of the employment was 17 August 2007.  By the time Mr Tate had already filed a grievance in relation to a demotion.  The primary three-month period for filling in the application would therefore have expired on 16 November 2007.  Irrespective of the statutory procedure, the Tribunal found that in paragraph 5 there was nothing to prevent Mr Tate filing the application in time and they made a preliminary finding that it was reasonably practicable for that time limit to have been followed.

3.	However shortly before the three months expired, namely on 14 November 2007, a further grievance letter was filed and therefore by Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period was extended by three months and therefore the key date becomes 16 February 2008.

4.	Mr Tate left it quite late to file the claim and it arrived at the Tribunal in Newcastle on 11 February 2008.  Mr Tate had made a mistake in answering Question 3.6 on that form in which he indicated that he had not allowed the company 28 days to consider his grievance.  There is, of course, a regulation that a claim cannot be put in within a 28-day period, which is why that question is asked.  That was a mistake because the grievance, of course, had been sent in in November 2007 and quite clearly the 28 days had elapsed.

5.	The Tribunal rejected the claim and as the Employment Judge records at paragraph 8:
“He was given the opportunity of correcting this which he did and represented [re-presented] the claim on 25 February.  The Tribunal finds that in view of the confusion with regard to the reply to question 3.6 it was not reasonably practical to have presented the claim by 16 February and that it was presented within a reasonable time thereafter, namely on 25 February.”

For that reason the judge accepted the claim.

6.	Mr Tate did give evidence before the Employment Judge and we have recently received from the Employment Judge, Mr Speker, typed-up notes of that evidence.  The notes are unfortunately brief with regard to what are the issues now raised in this appeal.  The complaints made are as follows: that the Tribunal Employment Judge did not make sufficient fact-finding to answer a number of key questions which it should have asked itself.  

7.	First of all, was the mistake that Mr Tate made have been reasonably avoided?  If so, the employers argue therefore that the correct form could and should have been put in in time because it follows therefore that a correct form should have been put in with the letter of 11 February.

8.	Secondly, even if it was a reasonable mistake, the employers argue that there was still a window of opportunity between 11 February and 16 February to correct the error.  Mr Tate has put in a statement in which he suggests that he did receive a letter from the Tribunal dated 12 February which purports to return the form and invites him to represent the claim.  His case is that he accepts that the letter was received on or about the Wednesday or Thursday of that week, 13 February or 14 February, but that the form was not enclosed.  He claims now that he telephoned the Tribunal on a number of occasions to request the form which was not returned to him until some days later; after which time he returned it as soon as possible and that accounts for the date of 25 February which is the date on which the Tribunal say they received the corrected form.  There is an issue in relation to a date that he has put on the amended form of 16 February.  His case is he put that on because he realised that it had to be the, as it were, correct date but in fact he filled it in or amended it some time thereafter.

9.	That whole sequence gives rise to what is the second area that Mr Purchase argues is not covered at all really by the Tribunal Chairman, which is the issue of the return of the claim form: was the form returned with the letter?  But, in any event was it practicable for Mr Tate to have either amended the form or sent in a fresh form by that Friday afternoon, 16 February.  Mr Purchase argues, and I agree, that these are areas that have effectively been glossed over and, to my mind, it is not seriously challenged by Miss Ling on behalf of Mr Tate, that these are areas on which the Employment Judge should have made proper findings.

10.	The third area that he needed to cover was why, in any event, did it take until 25 February for that corrected form to be signed against a background of 16 February being the required cut‑off date.

11.	So those are therefore three areas of fact-finding which I am in no doubt are required in order for the Tribunal to properly answer the question whether it was reasonably practicable for the correct form to have been filed by 16 February or, alternatively, were those further nine days until 25 February a reasonable period thereafter to allow for the correct filing.

12.	I therefore have no doubts in coming to the conclusion that this appeal succeeds, and that the issue of whether the claim form was filed, either in time or within a reasonable period thereafter, is one that should be sent back to the same judge for him to deal with these issues.

13.	To assist his deliberations there are three questions which we have drafted, and I am going to invite Counsel just to go over the wording with my clerk once I have risen, but just to confirm what I understand the wording to be as follows: Question 1, could the original in Question 3(6) on the ET1 have been reasonably avoided?  Question 2, if not was it reasonably practicable for either an amended ET1 or a fresh ET1 to have been filed by 16 February? Question 3, if not was the ET1 presented within a reasonable time after 16 February?

14.	I make it clear that the Tribunal’s conclusion, which uses the confusion over Question 3.6 as the justification for the claim being presented out of time, does not seem to me to do justice to these issues that have been raised and is therefore for that reason that this matter must go back for further consideration by the learned judge.