Appeal No.	 EAT/291/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR J A SCOULLER
MR N D WILLIS

MR S FAIRNINGTON 	APPELLANT

HBO & CO (UK) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J GALBRAITH-MARTEN
(of Counsel)
Messrs Freeth Cartwright Hunt Dickins
Solicitors
Willoughby House
20 Low Pavement
Nottingham
NG1 7EA	
For the Respondents	MR R A SMITH
(Consultant)
IRPC Group Ltd
Stockwell House
New Buildings
Hinckley
Leicestershire	

	MR JUSTICE KIRKWOOD:	This is an appeal by Mr Fairnington, the Appellant, from the decision on a preliminary point of an Industrial Tribunal at Nottingham.  The Industrial Tribunal sat on 6 February 1996 and gave its Extended Reasons on 15 February.  The decision of the Industrial Tribunal was that the Appellant’s complaint of unfair dismissal was out of time so that it had no jurisdiction.

	The Appellant was employed by HBO & Co (UK) Ltd as a computer analyst/programmer.  He began that employment in May 1989.  He came to work in a team led by Mr Pinson.  

	On 23 May 1995 the Appellant was dismissed by reason of redundancy.  He received the payments that fell due to him.  The Appellant had no thoughts that he had been unfairly treated, indeed, the reverse, and certainly made no complaint.  He was one of four or five people dismissed for redundancy in May.

	Some time late in September 1995, the Appellant heard over the telephone from a former work-colleague that a Mr Bishop, who headed another team at HBO, had advertised in the local Evening Post for analysts/programmers.  The Appellant also learned that, some time after the newspaper advertisement, Mr Pinson had advertised a vacancy on his team, through the company’s internal electronic mail.

	About two weeks later the Appellant found in his local library a copy of Mr Bishop’s advertisement in the Evening Post for 26 August 1995.  He reached the belief that the post advertised had been available at the time of his own dismissal, but that it had been frozen for three months.  Once the three-month limitation period for him to apply to an Industrial Tribunal had expired, the post was advertised.  The Appellant reached that belief without making any contact with or enquiry of either Mr Bishop or Mr Pinson.  The Appellant accordingly concluded that his dismissal had been unfair and made an application to the Industrial Tribunal, his application being received on 12 or 13 October 1995.

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

“(2)  ...  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.”

	It is the second half of that subsection that is applicable.  Where the Industrial Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months, the three month period is extended by such a further period as the Industrial Tribunal considers reasonable.

	The Industrial Tribunal reminded itself of the assistance given on the words “reasonably practicable” by the decision of the Court of Appeal in Machine Tool Industry Research Association v Simpson [1988] ICR 558.  The Tribunal in fact referred itself to a report of that case in a different series of reports in Machine Tool Industry Research Association v Simpson [1988] IRLR 212.  In particular, the Industrial Tribunal referred to the headnote to that report which deals with the words “reasonably practicable” in these terms:

“The expression ‘reasonably practicable’ in s.67(2) imports three stages, the proof of which rests on the applicant.  First, that it was reasonable for him not to be aware of the factual basis upon which he could bring an application to the Tribunal during the currency of the three-month limitation period.  It cannot be reasonably practicable to expect an applicant to bring a case based upon facts of which he is ignorant.  Secondly, there is an objective qualification of reasonableness in the circumstances to the subjective test of the applicant’s state of mind.  The applicant must establish that the knowledge which he gains has been reasonably gained by him in the circumstances and that that knowledge is crucial, fundamental or important to his change of belief from one in which he does not believe that he has grounds for an application, to a belief which he reasonably and genuinely holds that he has a ground for making such application.  Thirdly, the acquisition of that knowledge must be crucial to the decision to bring a claim in any event.”

	Having considered that authority, the Industrial Tribunal proceeded to identify the factual basis on which the Appellant brought his application and its conclusions upon it, and it did so in these terms:

“7.  In order to decide this case we have to identify the factual basis upon which the applicant brings this application.  That is that the vacancy on Charlie Bishop’s team was available on 23 May, was then held in abeyance during the limitation period and resurrected once that period had expired.  That is to us a far fetched inference to draw from the newspaper and internal advertisements.  We have already pointed to the explanation offered by the respondent, not proved in evidence, but held up as an example of an alternative and innocent explanation.  Our conclusion is that the belief of the applicant that he has grounds for the application is not reasonably held.  He was one of a number of persons dismissed for redundancy.  There were other innocent explanations for the advertisement.  The applicant did nothing to determine by speaking to either Charlie Bishop or Max Pinson what was going on inside the respondent so as to make an informed judgement.”

	Secondly, the Industrial Tribunal found that the Appellant’s reason for delay between the end of September to 12 October 1995, when he lodged his complaint, to be unconvincing.  The explanation given had been “pressure of academic work”.

	Some obvious difficulty arises from the penultimate sentence of the Industrial Tribunal’s Extended Reasons.  It is in these terms:

“For all those reasons, we conclude that it was reasonably practicable for this application to have been brought within three months in that there was no reasonably sustainable change in the applicant’s state of mind.”

	The argument for the Appellant is two-fold and I address it in the reverse order to the way in which it is set out in the amended Notice of Appeal.

	First, that although the Industrial Tribunal reminded itself of relevant parts of the headnote in the Machine Tool case, it in fact applied the wrong test.  The right test, it is argued, was whether information had come to the Appellant’s notice outside the three-month limitation period that, assuming it were true and without more, reasonably caused him to believe that he might have been unfairly dismissed.  We heard no argument from the Respondent that that was the wrong test.  

	We have had considerable difficulty in discerning what test the Industrial Tribunal in fact applied.  Applying the test postulated by the Appellant in the framework of the Machine Tool case, the Industrial Tribunal should clearly have found, first, that it was not reasonably practicable for the Appellant to make his application within the three-months, because the fact that altered his mind, namely the content of the newspaper advertisement, was not published until 26 August 1995, that is four days outside the period of limitation; nor, indeed, was it known to him for a month after that.

	Secondly, that that fact, the content of the newspaper advertisement, was fundamental or important to the Appellant’s change of mind that what he had earlier thought to be a fair dismissal, was an unfair one.  Thirdly, that the Appellant’s belief was genuinely held.

	It seems to us that those first three findings were inevitable upon the material before the Industrial Tribunal, although the Industrial Tribunal in fact addressed none of them.  Having decided those three matters the Industrial Tribunal should have gone on from there to decide whether the Appellant’s belief flowed reasonably from the newspaper advertisement.

	In looking to see what test the Industrial Tribunal in fact applied, we have been further troubled by the penultimate paragraph of the Extended Reasons to which I have already referred.  That does not seem to us to lie at all well with the test, as it should have been formulated, and should have been applied.

	The next argument on this aspect is that in the second sentence of paragraph 7 of the Extended Reasons, which I have read out, the Industrial Tribunal omitted the primary fact that led to the change of belief, namely the content of the newspaper advertisement, but proceeded directly to the inferences drawn from that fact by the Appellant, which the Industrial Tribunal described both as the “factual basis” and, three lines further on, as an “inference”.

	We find that there is substance in the argument that the Industrial Tribunal did not show in its Extended Reasons a methodical approach to the test as it should have been formulated.  That, in turn, adds weight to the submission that the correct test was not, in fact, identified and formulated at all.  

	The second limb of the appeal is that, whilst the Appellant recognised that it would have been proper for the Industrial Tribunal to consider not (as it did) whether the belief was reasonably held, but whether the important fact, the content of the newspaper advertisement, reasonably caused the Appellant to believe that he had been unfairly dismissed, the Industrial Tribunal, in considering reasonableness in that context, strayed too far into the merits of the case.

	It is not at all unknown for an employer, wishing to have a clean-out of staff, to make redundancies and then after the expiry of the limitation period, to engage fresh staff.  Such an inference is not a fanciful one.  The Industrial Tribunal did not find that it was.  It found that the inference drawn by the Appellant, which amounted to pretty much the same thing, was far-fetched.

	Counsel for the Appellant argued that it was not open to the Industrial Tribunal to consider whether the inference drawn by the Appellant was far-fetched.  We disagree with that submission to the extent that, other things apart, the Industrial Tribunal was entitled to look at the foundation for the Appellant’s belief to see whether it was one reasonably caused by the newspaper article, but we have been greatly troubled by the further matter that the Industrial Tribunal plainly had in mind, namely the employer’s explanation for the newspaper article.  We are troubled by that because it is referred to with weight in paragraph 5 of the Extended Reasons, and again in paragraph 7 in the passage to which I have referred.

	Although the Tribunal recognised that it was not proved in evidence, it is impossible to escape the conclusion that it affected the mind of the Tribunal and in allowing it to do so, the Tribunal plainly erred because it was a matter that went to the merits and not on any view to the question of reasonableness that the Industrial Tribunal had before it.

	For those reasons we have reached the unanimous conclusion that this part of the decision of the Industrial Tribunal cannot stand.  There remains the question of the reasonable period.  The Tribunal concluded, as we understand, that the material date was the date of the telephone call in late September, rather than the date of discovery of the newspaper advertisement.  The Tribunal found that the reason for delay between the two was unconvincing.  

	The Tribunal made no other finding as to a reasonable period and its final conclusion, to which I have referred, as to the three-months limitation period, makes it far from clear that independent consideration, uncoloured by the primary conclusion, was given to this aspect at all.

	For all those reasons we have decided unanimously that we should order that the case go back for this jurisdiction question to be heard afresh by another Tribunal.  

	We wish to make it clear that no part of this judgment should be read as any indication of any view of ours as to the proper outcome of the fresh hearing.  That will be entirely a matter for the Industrial Tribunal before whom it is listed.