Appeal No. UKEAT/0792/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2005

Before
HIS HONOUR JUDGE PROPHET
MS K BILGAN
MRS J M MATTHIAS

SPIRIT GROUP LTD (FORMERLY SPIRIT AMBER LTD)	APPELLANT

(1) MR J SEAL 
(2) MRS C SEAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SENDALL
(of Counsel)
Instructed by:
Messrs Halliwells Landau Solicitors
St James Court
Brown Street
Manchester
M2 2JF	
For the Respondent	MR J SEAL AND MRS C SEAL
(the Respondents in Person)	

SUMMARY

Practice and Procedure

Employment Tribunal extended three month time limit by two days – appeal based on perversity dismissed.

HIS HONOUR JUDGE PROPHET

1.	Mr and Mrs Seal were employed as a couple to manage a public house for some eight years, prior to being dismissed by their employer, Spirit Amber Ltd, now the Spirit Group Ltd. The effective date of the termination of their employment was 2 December 2003. 

2.	They submitted claims of unfair dismissal, and in the case of Mrs Seal also of breach of contract, to the Employment Tribunal at Stratford on 3 March 2004. The three month time limit for submitting such claims had by that time expired, and their claims were presented two days out of time. This led the Stratford Employment Tribunal to hold a hearing on 8 June 2004 to consider the issue of whether the Employment Tribunal could deal with the merits of their cases, having regard to these having been presented out of time. That Employment Tribunal was chaired by Mr Wallington, with Mr Boyd and Ms Gowdrige as the lay members. 
Mr and Mrs Seal represented themselves, and Ms John, solicitor, represented the employer.

3.	The Employment Tribunal decided unanimously, having considered section 111 of the Employment Rights Act 1996, and the related provisions in respect of breach of contract, that it was not reasonably practicable for the claims to have been presented before the end of the period of three months, and they, in effect, extended that period by two days to validate the claim. Directions were given for the further progress of the claims on liability and, if necessary, remedy.

4.	The employers have lodged a Notice of Appeal with this Tribunal saying that the Employment Tribunal applied the wrong test for what could be reasonably practicable, and that their Decision was perverse.
5.	We are constituted today to conduct a full hearing of this appeal, with Mr Sendall of Counsel now representing the Appellant and Mr and Mrs Seal attending unrepresented before us.

6.	Mr Sendall has presented a comprehensive, seven page skeleton argument, and has submitted to us this morning that the Employment Tribunal’s Decision was perverse in that it ought to have decided that Mr and Mrs Seal should have complied with the time limit, certainly during the period between 20 February 2004 and 1 March 2004, bearing in mind that the Employment Tribunal indicated that Mr and Mrs Seal were aware of the time limits. He submitted that if there were not properly advised by the Citizen’s Advice Bureau, that could not justify an extension of time.

7.	Mr and Mrs Seal have had a skeleton argument provided for them, which they have submitted to us today, and Mr Sendall has helpfully indicated that he does not take any point on the fact that that skeleton argument has been presented late.

8.	It has long been recognised that the reasonably practicable test is a strict one. The leading cases, such as Palmer and Saunders v Southend-on-Sea Borough Council 
[1984] ICR 372, a decision of the Court of Appeal which reviewed earlier decision including Wall’s Meat Co Ltd v Khan [1979] ICR 52, have emphasised that the reasonably practicable test is essentially an issue of fact for the employment tribunal to determine, having regard to the particular circumstances of the case before it. In order for us to say today that the judgment of the Employment Tribunal was perverse, we have to be satisfied that it was a judgment that no reasonable tribunal, properly directing itself, could have arrived at. 

9.	Having considered the matter carefully we are not able to accept that the Employment Tribunal in this case applied itself improperly to what it was called upon to decide. They looked into the particular circumstances which applied. They recognised and set out the existence of factors such as the contacts which Mr and Mrs Seal had made with the Citizen’s Advice Bureau, and the natural reluctance of dismissed employees to put applications in to the employment tribunal when internal appeals are being pursued. Also, as a major factor, they took into account the state of health of Mr Seal. At paragraph 13 of the Employment Tribunal’s Decision they say this:

“During the period from 12 January 2004 onwards, we are entirely satisfied that it was not reasonably practicable for Mr Seal to act on the matter because of his poor state of health. We are also satisfied that Mrs Seal was similarly prevented in practicable terms from progressing the matter.”

They were clearly recognising that Mr and Mrs Seal were unrepresented claimants, wishing to put in joint claims.

10.	The Employment Tribunal then concluded, having clearly weighed those factors as it was their duty to do, that it was not reasonably practicable for Mr and Mrs Seal to have submitted their claims within the strict three month time limit, and that in the particular circumstances a two-day extension was reasonable.

11.	We are unable to say that the Employment Tribunal applied itself improperly to its task or that the Decision is perverse. Accordingly this appeal is dismissed.