Appeal No. EAT/924/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 January 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR R SANDERSON OBE
MR K M YOUNG CBE

MR K DAR	APPELLANT

HABIB BANK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR ISLAM CHOWDHARY
(of Counsel)
Instructed by:
Messrs Hutchinson Beresford Lowe & Co
Solicitors
71 Cricklewood
Broadway
London NW2 3JR	

JUDGE PETER CLARK

1	The Appellant, Mr Dar, has changed his Counsel.  Before the London North Tribunal he was represented by Ms Neufeld, and before us by Mr Chowdhary.  That may explain why the basis on which he now seeks to put his case apparently differs from that advanced before the Employment Tribunal.

2	That Tribunal, chaired by Mrs T J Mason, found in a decision with extended reasons promulgated on 9 June 2000, that the Appellant was employed by the Respondent Bank from 10 April 1972 until his dismissal by reason of redundancy effective on 30 December 1999.  He put in his Originating Application complaining of unfair dismissal on 30 March 2000, one day out of time.  

3	On the preliminary question as to limitation Ms Neufeld argued that the effective date of termination was extended because of subsequent negotiations involving the Appellant, who was general secretary of the recognised union, over whether he would be offered further employment as a price for his co-operation in connection with press releases by the Bank concerning the redundancy exercise which it had undertaken.  That argument was, in our judgment, rightly rejected.  The Appellant was, the Tribunal found, aware of the time limit; he let the time slip by; it was reasonably practicable to present his complaint within time.  Accordingly the claim was time-barred.  

4	In this appeal Mr Chowdhary submits that the Appellant was impeded or misled or deceived by the Bank into believing that he would re-engaged and thus it was not feasible for him to complain during the time that he hoped to be re-engaged.  

5	That submission is wholly unsupported by any finding of fact by the Tribunal.  In order to make good his submission, Mr Chowdhary invited us to look at documents which were in existence at the time of the Employment Tribunal hearing, but which he says were not put before the Tribunal.  No reason for not adducing them in evidence has been advanced, save that it is said that the Appellant was incompetently represented by Counsel below.  

6	Mr Chowdhary has prayed in aid Article 6 of the European Convention on Human Rights and has referred us to a recent Court of Appeal Criminal Division decision in the case of  R v Nangal [The Times 9 January 2001] for the proposition that the incompetence of a defendant’s legal advisers at a criminal trial may give rise to an appeal, on the basis that he did not receive a fair trial below, contrary to Article 6 of the Convention.  

7	We shall not investigate in this appeal, that line of inquiry.  The learning in the Court of Appeal over the years within this jurisdiction is clear: where a point is not taken below, the Appellant will not, save in exceptional circumstances, be permitted to take the fresh point here.  Further evidence which could have been led below, but which was not, will not be admitted in evidence before the Employment Appeal Tribunal in the absence of any proper excuse.  None is advanced in this case, in our judgment.  

8	Accordingly we shall determine this appeal on the basis of the Tribunal’s findings of fact.  They found that after 30 December 1999, the Appellant did co-operate with the press release project and there were negotiations about the size of the final package which he eventually signed for on 31 January.  

9	At the time, found the Tribunal, he knew about Employment Tribunals and the three month time limit.  However, he let time slip by, and presented the Originating Application one day out of time.  In these circumstances, we can see no grounds in law for interfering with the Tribunal’s conclusion that this claim was statute-barred, and accordingly, the appeal must be dismissed.  

Permission to appeal refused.