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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ali v. ISS Servisystem Ltd [2002] UKEAT 0889_01_2201 (22 January 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0889_01_2201.html Cite as: [2002] UKEAT 889_1_2201, [2002] UKEAT 0889_01_2201

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APPEARANCES

 

For the Appellant	NO APPEARANCE OF REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR R SMITH (Representative) IRPC Group Ltd Stockwell House New Buildings Hinckley Leicestershire LE10 1HW


 


MR RECORDER LANGSTAFF QC

1. This is an employee's appeal from a decision of the Employment Tribunal at London (South) in reasons promulgated on 7^th June 2001. That Tribunal, by a majority, held that it had no jurisdiction to consider the employee's complaints of unfair dismissal or of discrimination contrary to the Race Relations Act 1976. They further decided that it was not just and equitable to extend time in respect of the latter complaint.
2. The complaints would have to be made within three months of the date of dismissal for a complaint of unfair dismissal to be heard by the Tribunal unless it came to the conclusion that it was not reasonably practicable for the complaint to have been presented earlier, see Section 111(2)(a) and (b) of the Employment Rights Act 1996. So far as the Race Relations Act 1976 is concerned, the complaint had to be presented before the end of the period of three months beginning when the act complained of was done. That is the provision of Section 68(1)(a) of the Race Relations Act 1976.
3. Since the act complained of was dismissal, the scope of the factual enquiry was the same - that is what was the date of dismissal in this particular case. The Tribunal had a discretion, in the latter case, pursuant to Section 68(6), to extend the time if it considered it just and equitable to do so.
4. We conclude from the Employment Tribunal's reasons that the essential facts are these. The Appellant was told on 23^rd June 2000 by the Respondents, and understood, that he would not be employed by the Respondent after that date. That is a finding of fact which appears from paragraph 7(2) of the decision. There followed the next day a letter from the Respondent employer in which that employer confirmed that the employment had terminated even though the dismissal was described as being by reason of frustration rather than any act of dismissal by the employer. The Tribunal cites the correspondence that then followed in which it appears, at least in the early correspondence, that the Appellant recognised that he had, indeed, been dismissed on 23^rd June. But in any event the finding of fact was one, which it seems to us, it was open to the Tribunal to make.
5. On that unanimous finding of fact the majority drew the following conclusion at paragraph 12(2). They said

"It is clear that it was reasonably practicable to present the complaint of unfair dismissal within the primary period of three months. The Applicant had been dismissed and it was understood that he had been dismissed".

That is a conclusion based upon the findings of primary fact.

6. It may be that in some circumstances a Tribunal might conclude that a conversation would not have the effect of dismissal, in other cases it would conclude that it did. That, it seems to us, is a matter for their decision and is a finding ultimately of fact. We can only interfere with any decision of a Tribunal if that Tribunal is in error in law. So far as the findings of fact are concerned, we are only entitled to interfere if the conclusion is a finding which is perverse, that is one to which no reasonable Tribunal could possibly come.
7. It follows from what we have already said that there were ample grounds for this Tribunal coming to the conclusions which they did and there is no basis for undermining the finding of fact which led to that conclusion.
8. The ground of appeal, which is before us, I shall set out in full because the Appellant himself, Mr Ali, is not present, nor is his representative. This case was in the Warned List for this week. Last night it was called on for hearing today and giving a listing not before 2 o' clock. We have been told that communication was made by fax to the parties. We have also been told that at lunch time the Listing Office tried to contact the Appellant. They spoke to someone at the address given on the Notice of Appeal and it was confirmed that a representative would be attending this hearing. The Appellant has representatives. Those representatives work from Southall. We delayed the start of this hearing to ensure there would be ample time for anyone to come from Southall and allowed that time in recognition also that, if there had been any unexpected hold-up, we would have been notified by phone or mobile phone call from the representative on his way. There has been no such communication. The Respondent is here. Its representative has come from as far away as Hinckley in Leicestershire.
9. Accordingly we exercise our discretion to hear this appeal in the Appellant's absence and we have treated the Notice of Appeal and the grounds set out in it as the skeleton argument which would have been addressed to us had Mr Ali or his representative been present to advance it.
10. The argument is that set out at paragraph 4 of the grounds. It reads

"Although at the outset the Appellant's representatives concluded that the Appellant was dismissed on 23^rd June 2000 (re the Respondent's letter of 23^rd June 2000) due to the Respondent's responses (re the Respondent's letter of 17^th July 2000, point 2, and subsequent communications in writing and orally), that is to repeatedly deny that the Appellant was dismissed or his employment was terminated irretrievably, it was unreasonable to believe that his employment was terminated on the aforementioned date. The learned member of the Tribunal rightly accepted this fact.

11. That, as we see it, is an appeal on fact. It suggests that it was not within the power of the Employment Tribunal to come to the conclusion that on 23^rd June 2000 there had been a dismissal treated as such by the parties. The only reason it advances for suggesting that that was a wrong finding is a letter very nearly a month later (17^th July 2000) and then correspondence which followed it. There is no suggestion that in the interim both parties had not acted entirely consistently with dismissal.
12. It seems to us that that is an argument upon fact. Such arguments are for the Tribunal to resolve not for us. This Tribunal did so and, therefore, there is no force on the ground of appeal. Accordingly for those reasons this appeal must be dismissed.
13. Immediately following the concluding remarks of this judgment we have been told by the Associate that there has been a phone call received in the Tribunal office from MAAS, who represent Mr Ali. The phone call was to the effect that they had not received prior notice of this hearing and did not propose to send a representative. However, the office has confirmed to this Tribunal that a fax was sent and, indeed, shown by the fax system as having been received. We, therefore, simply record these facts. As I indicated they have arisen after the judgment was concluded.