Appeal No. EAT/410/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 24 September 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR R SANDERSON OBE
MISS S M WILSON CBE

MR P HICKEY	APPELLANT

HARADA LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

JUDGE PETER CLARK

1	This is an appeal by Mr Hickey, the Applicant before an Employment Tribunal sitting at London (Central) on 30 January 2001, against that Tribunal’s Decision, promulgated with Extended Reasons on 6 February 2001, dismissing his various complaints brought against his former employer, the Respondent, Harada Ltd on the ground that each complaint was time-barred.  

2	The claims fell into two categories so far as limitation is concerned.  All are subject to the ordinary three-month time limit, running from the effective date of termination of the employment.  The complaints of unfair dismissal and breach of contract are subject to the reasonable practicability proviso; those of race, sex and disability discrimination may proceed, notwithstanding the expiry of the primary limitation period, if the Tribunal considers it is just and equitable for them to do so.  

3	It is common ground that the employment came to an end on 3 July 2000.  Accordingly the primary limitation period expired on 2 October 2000.  A faxed copy of his Originating Application was received by the Employment Tribunal, according to the date stamp, on 19 October 2000.

4	Before the Tribunal the Appellant raised essentially two relevant points, contained in a written submission prepared for him by a law centre adviser, Richard Tingle.  The first was that he had in fact presented a complaint in time, in late September 2000, but the Tribunal had no record of having received it.  The second was that his mental condition, he is schizophrenic, made it not reasonably practicable to present his complaint in time, so far as unfair dismissal and breach of contract was concerned; further that it was just and equitable to allow his discrimination claims to proceed.  

5	The Tribunal rejected his primary case on the facts.  They did not accept that he had presented a complaint within time (see paragraph 7 of their Reasons).  

6	As to the application of the respective escape clauses, the Tribunal found that the Appellant could not, on the one hand contend that he had presented a complaint within time (a contention which they rejected on the facts) and at the same time contend it was not reasonably practicable to present the application within time; secondly, they concluded that the Appellant was aware of his rights and that he had not been prevented from corresponding with the Respondent about his employment rights due to illness in letters dated 26 June (the Tribunal thought that was an error for 26 July) and 9 August 2000.  In these circumstances they held that it would not be just and equitable to allow the discrimination claims to proceed.  The application was dismissed.

7	We remind ourselves of the limits of our jurisdiction.  We can only interfere with this Employment Tribunal’s Decision if an error of law in their approach is made out.  That is a difficult task for the Appellant in this case.  The question as to whether or not it was reasonably practicable to present a complaint in time is essentially one of fact for the Employment Tribunal (see Palmer v Southend-on-Sea Borough Council [1984] ICR 372).  The Tribunal has a very wide discretion in determining whether or not it is just and equitable to allow complaints of unlawful discrimination to proceed.  See Hutchison v Westward Television Ltd [1977] ICR 279.

8	In advancing his appeal today Mr Hickey takes the following points: 
First, he submits, without any basis by way of affidavit or otherwise, that the Tribunal prejudged his case.  We cannot see any grounds for allowing that argument to proceed to a full hearing.  

9	Secondly, he submits that the Tribunal failed to apply the just and equitable test in relation to his discrimination claims, to which they referred in paragraph 3 of their Reasons.  We cannot accept that submission, bearing in mind the way in which the Tribunal deal with that very question at paragraph 9 of their Reasons.

10	Thirdly, he submits that he was not allowed to call material evidence, that is Mr Richard Tingle.  He tells us that he asked Mr Tingle to appear as a witness at the hearing on 30 January and was told that he would not be available to do so.  The Appellant did not then apply for a Witness Summons to require Mr Tingle’s attendance, nor did he, when he arrived at the Tribunal on 30 January, apply for an adjournment for the purpose of calling that witness.  

11	Of perhaps even greater materiality is this: the Appellant tells us that the purpose of calling Mr Tingle was to support his case that he, the Appellant, had in fact sent an Originating Application to the Tribunal in late September 2000.  However, Mr Hickey tells us that the furthest Mr Tingle could go would be to say that the Appellant left his office with a draft Originating Application, intending to post it.  That, it seems to us, is not evidence which takes the Appellant’s evidence any further, and his evidence was rejected by the Tribunal as a matter of fact so far as presenting an application before the expiry of the three month limitation period is concerned.  

12	It follows, having considered the way in which Mr Hickey puts his case today, that we are unable to discern any arguable point of law which ought to go forward to a full appeal hearing, and consequently this appeal must be dismissed.