Appeal No. EAT/516/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR T C THOMAS CBE
MS D WARWICK

MR G BENAIM	APPELLANT

TOP SHOP/TOP MAN LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	IN PERSON	

(Page 1 Revised 12/12/96)

	MRS JUSTICE SMITH:	This is the preliminary hearing of an appeal against the decision of an Industrial Tribunal sitting at Bedford on 21 March 1996.

	The decision, which was by a Chairman, sitting alone, was that the application to the Industrial Tribunal claiming compensation for unfair dismissal had been presented outside the three month period provided by the Employment Protection (Consolidation) Act 1978.  Further, the Applicant had failed to satisfy the Tribunal that it had not been reasonably practicable for him to present his application within the prescribed period.  The application was therefore dismissed.

	The facts of the matter may be very briefly stated.  The Appellant, Mr Benaim, was employed by the Respondents, Top Shop/Top Man Ltd, and on 21 April 1994 a disciplinary hearing was begun in relation to allegations of sexual harassment.  The proceedings were adjourned till Monday 25 April, at which time the Appellant was told that he was to be summarily dismissed.  A letter dated 26 April confirms that that decision had been taken and communicated on 25 April 1994.

	Section 67(2) of the Employment Protection (Consolidation) Act 1978 provides:

“...  an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.”

	Thus, Mr Benaim’s application should have been presented by 24 July.  It was received at Central Office on 25 July 1994.  The Chairman held that the application was received one day late.  

	The Chairman then considered whether it had been reasonably practicable for the Appellant to bring his claim in time.  His explanation for delay was that he had consulted Solicitors.  They had advised him to settle the matter.  Negotiations were under way and a response was hoped for, which response would have included a good reference for the Appellant.  That response was not received when expected and the Appellant had delayed hoping it would arrive.  Time had therefore run over the deadline for the lodging of the application.

	The Chairman said this:

“2  ...  The Applicant, certainly from early in June, was receiving advice from his solicitors.  They were certainly well aware that there was a deadline because in the letter of 5 July 1994 they used the expression ‘bearing in mind the deadline for any claim by my client to the Industrial Tribunal to be issued  ...”

	The Appellant today has confirmed that he was aware of that letter and could very well have found out what the deadline was, even if he did not, in fact, know.  The Chairman then said:

“3  It is well established that the fact that the last day for applications falls at the weekend is not a reason for extending the time within which such applications must be brought.  The Tribunal is satisfied that the Applicant was aware that he had the possibility of bringing a claim to the Industrial Tribunal; he was advised throughout and in all the circumstances therefore, having heard the evidence this morning  ...  the Tribunal is not satisfied that it was not reasonably practicable for the Applicant to make his application within the period of three months ...”

	Today, Mr Benaim, who has appeared in person, has submitted first, that the application was not really out of time, that the true date of dismissal, as he put it, was 26 April because he was paid up to 25 April.  On reading to him the words of section 67(2) he has, we think, accepted that the effective date of termination, which is what matters, was 25 April and therefore, it is clear that the Tribunal were right to say that this application was received one day late.

	It is now well established that the matters which are to be taken into account, under section 67(2), when a Tribunal considers whether it was reasonably practicable for an application to be lodged in time, are quite narrowly confined and are limited to matters related to the Applicant’s circumstances:  see Biggs v Somerset County Council [1996] ICR 364.

	This Tribunal has properly considered the Applicant’s circumstances.  It should be clearly understood, that it is not open to a Tribunal to consider all the circumstances of the case and to make a judgment as to whether it would be just and equitable in all the circumstances to allow the case to proceed.  That is not the test.  The test is much stricter.  This Tribunal Chairman applied the proper test and reached a conclusion which he was plainly entitled to reach.

	In those circumstances this appeal must be dismissed at this preliminary stage.