Appeal No.	EAT/1383/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 March 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR D J HODGKINS CB
MR A D TUFFIN CBE

MR D R GREENALL	APPELLANT

STANLEY LEISURE PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MR JUSTICE HOLLAND:     For some 17 years terminating in 1998 the Applicant, Mr David Greenall, was employed by the Respondents, Stanley Leisure.  On 19 June 1998 he completed an application to an Industrial Tribunal alleging “unequal treatment resulting in unfair dismissal”.

	It seems that that application was not in the event presented until 6 July 1998.  The IT1, on its face, indicated that the last date of his employment was 11 February 1998.  It was in those brief circumstances that a Tribunal sitting at Manchester on 26 August 1998, felt itself able to rule that the Originating Application was out of time so as to be dismissed.

	In arriving at that decision the Tribunal expressed sympathy for Mr Greenall but felt, in the event, that there was no escape from the rigidity that is seemingly provided by Section 111 Employment Rights Act 1996.  So far as material that reads:

“(1)  A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.
(2)  Subject to subsection (3), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal -
(a)  before the end of the period of three months beginning with the effective date of termination, or
(b)  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 that period of three months.
(3)  Where a dismissal is with notice, an industrial tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.”

	The matters that the Tribunal had to consider amounted to the short timetable already indicated, plus this further dimension.  As at the date in question, 11 February 1998, there was current an appeal by Mr Greenall, utilising the internal appeals procedure, with respect to the earlier imposition of a final written warning.  Yet further, following 11 February, he had initiated the internal appeals procedure yet again, this time with respect to the events of that day.  Seemingly, in those circumstances, a solicitor had advised him that he should exhaust the internal appeals procedure before initiating a complaint before the Industrial Tribunal.  Given that it took until 10 June 1998 for the internal procedure to be wholly exhausted, so that he received a letter of that date indicating that the Managing Director upheld the relevant decisions, it was not until 19 June that he thought fit, having regard to the length of the procedure and the advice that he had received, to make the complaint.

	The Tribunal regarded itself as bound by the words of Section 111 and by reference to Palmer & Saunders v Southend Borough Council [1984] IRLR 119, to uphold the contention that the Originating Application was out of time.  It equated the words “reasonably practicable” with “reasonably feasible” and took the view that it had plainly been feasible to initiate these proceedings within three months of 11 February 1998.  It further directed itself that Section 111 did not give it scope to consider the impact upon the timetable of the wrong advice given to Mr Greenall by his solicitor; it directed itself that all it was concerned with was this simple question of practicability.

	Against that decision Mr Greenall appeals and the matter has come before us this morning by way of a preliminary hearing.  It is our task to decide whether there is a discernible point of law such as would found a hearing at which the Respondents are represented.  If there is such, we should say so and we should direct that further hearing.  If, on the other hand there is no point of law, then there is no basis for any further consideration of the matter by this Tribunal and it is thus our task to dismiss the appeal.

	Mr Greenall was unrepresented before the Employment Tribunal and he has been unrepresented today.  In a sense, that has been a wise move because we simply quote the words of the Employment Tribunal:

“We are indebted to the applicant for the candour and courtesy with which he has explained his case to us today.”

	Such was their view and such is our view.  With that candour he indicates that he knows no relevant law, and all that he is concerned about is that there is an apparent injustice and he has engagingly invited this Tribunal to see what it can do for him.  It is a stance with which we sympathise and a stance that reflects the responsibility that we have to those who appear before us.  

	In the event and on that footing we have decided, with some serious hesitation, that there is a point here which can justify a further inter partes hearing.  What is the point?  The point relates to the words “the effective date of termination” and there is, on the face of it, a possible argument as to which date was “effective” in the particular circumstances of this case.

	We have in mind the timetable which started, it would seem, by the giving of a final warning on some date earlier than 11 February, the initiation of an appeal which was unresolved as at that date and the initiation of further internal proceedings which did not, in turn, terminate until 10 June 1998.

	We are impressed by what appears to be the situation, namely that that procedure could, in its turn, have presumably resulted in the rescission of either or both of the decisions under appeal, so that he remained employed; and, in those circumstances, we do raise the point as to whether the effective date of termination was on 11 February, or whether it was on some other and subsequent date, arguably 10 June 1998.  We hasten to add that we have not had the benefit this morning of any citation of authority and we have not, ourselves, done research into the cases bearing on this topic.  We recognise that it may well be that a proper investigation of the law will show that this point simply cannot be maintained, but the particular circumstances of this case do provide an occasion where the merits would strongly suggest a construction favourable to Mr Greenall.

	It is very surprising that the Respondents can take as much time as they like over their internal appeal procedure, that they can, as they did here, extend that for longer than three months from 11 February and then be in a position not only to reject his appeal, but to maintain that the effective date of termination was more than three months before the ultimate decision.  It is this interaction between the word “effective” and the timetable in this case, coupled with an appreciation that presumably the concern of a Tribunal is to encourage people to pursue the internal procedure rather than to discourage them.

	Turning back to the advice given by the solicitor, it plainly was risky but did it not impliedly acknowledge what should be (and for all we know, maybe) the reality of the situation?

	Having thus explained the point, we make the direction already indicated.  We conclude by urging Mr Greenall to try to obtain some legal advice.  He will himself have seen this morning the intervention by a member of the bar, working pursuant to the ELAAS Scheme; he will have seen for himself just how effective that can be.  If he find similar representation he may find it just as advantageous, albeit he must brace himself for advice that the point currently taken cannot be maintained.  Either way, he would benefit enormously from any such assistance.

	The other thing we do direct is this.  Before the matter comes on for an inter partes hearing Mr Greenall must prepare a chronology setting out the sequence of events, which start presumably with warnings, and which end with the letter of 10 June 1998.  He may also be able to indicate in that the point at which he took and received legal advice.  It is with that document this Tribunal will be in a better position to understand the background realities of the matter.