Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 04208/94SD/EP & Others

(See attached schedule)

CLAIMANTS: Joan Sterritt & Others

(See attached schedule)

RESPONDENTS: 1. Stewarts Supermarkets Ltd

2. Associated British Foods Pension Trustees Ltd

NOTICE PARTIES: 1. Tesco Stores Ltd

2. Tesco Pension Trustees Ltd

DECISION ON AN APPLICATION FOR A REVIEW

The decision of the tribunal is that the application made by the claimants to review the decision of the tribunal registered and issued to each of the parties on 10 March 2006, dismissing the first notice party from these proceedings, following withdrawal notified to the tribunal by letter dated 20 February 2006, is refused; the application was made out of time and it is not just and equitable to extend time.

Constitution of Tribunal:

Chairman (Sitting alone): Mr N Drennan QC

Appearances:

The claimants were represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The first-named respondent and the notice parties were represented by Ms N McGrenera, Queen's Counsel, instructed by Alana Jones, Solicitors.

The second-named respondent was represented by Mr G Purvis, Barrister-at-Law with Mr J O'Hara, Queen's Counsel, instructed by Travers Smith, Solicitors.

REASONS

1. .1 This hearing was arranged as a pre-hearing review to determine the following matters, arising from an application made and dated 24 November 2006 by the claimants:-

(a) The application made by the claimants to review the decision of the tribunal, registered and issued to the parties on 10 March 2006, dismissing the first notice party, Tesco Stores Ltd ("Tesco"), from these proceedings, following withdrawal notified to the tribunal by letter dated 20 February 2006.

(b) If the application to review was unsuccessful, the application of the claimants to join Tesco as a party to the proceedings.

(c) Further, the application of the claimants to join the second notice party, Tesco Pension Trustees Ltd, to the proceedings.

2. .2 Having heard initial submissions by all the representatives, I decided, at the outset of the hearing, that it would not be appropriate, in the circumstances, to determine at this hearing the applications set out at paragraph 1.1 (b) and (c) above, pending the determination of the application for review set out at paragraph 1.1 (a) above. Subject to the outcome of the application for a review, I further decided that the said applications for joinder would be heard at a pre-hearing review to be arranged, if and so far as may be necessary, in light of the said decision for the application for a review; together with the application by the second-named respondent to set aside the decision to join the second-named respondent to these proceedings – which had previously been adjourned pending the decision in relation to these matters. In deciding to consider the applications, as set out above, I considered it would be more appropriate to hear the said joinder applications together at one hearing, in light of the issues to be determined and the terms of the overriding objective. Ms McGrenera and Mr Purvis connected to my said decision. Subsequently, during the application for review, Mr Potter withdrew his earlier objection to the course adopted by me, as set out above.

All the representatives agreed that, although the Notice of Hearing had referred to a pre-hearing review, the hearing, which I was now required to determine, was an application for review by the claimants pursuant to Rules 34 – 36 of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ("Rules of Procedure").

3. .1 An application for review may be brought on the following grounds, insofar as relevant to this matter, as set out in Rule 34 (3) of the Rules of Procedure.

(a) The decision was wrongly made as a result of an administrative error.

…

(d) New evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known or foreseen at that time.

(e) The interests of justice requires such a review.

4. .2 Under Rule 35 (1) of the Rules of Procedure, an application under Rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a Chairman if he considers that it is just and equitable to do so.
5. .1 Each of the claimants commenced proceedings in or around 1994/1995/1996 and at all material times were part-time employees of the first-named respondent, Stewarts Supermarkets Ltd ("SSL"). In the said proceedings, they each made a claim for a declaration of entitlement to membership of their employers' occupational pension scheme ("the ABF Scheme"), from which they had been unlawfully excluded because of their part-time status. Notices of appearance denying liability were entered on behalf of the first-named respondent.
6. .2 Pursuant to the terms of the sale and purchase agreement between ABF Investments plc, Tesco plc and Associated British Foods plc dated 21 March 2007, the entire issued share capital of Stewarts Supermarkets Ltd (SSL) was sold to Tesco Stores Ltd. The transaction became effective on 8 May 1997.
7. .3 Between September – November 1997, the claimants, other than the second-named claimant, Laura Brown, who failed to join ABF Scheme when offered access in 1993, joined various Tesco pension schemes and transferred the value of their ABF Scheme benefits to those said Tesco pension schemes. It will be necessary to refer to these matters in more detail elsewhere in this decision.
8. .4 DLA solicitors, who were at that time acting for SSL and Tesco, in correspondence to the tribunal by letter dated 23 October 2001 stated, inter-alia, as follows:-

"…

Having made enquires of our clients, we understand that the named respondent, Stewarts Supermarkets Ltd, is still on the register of companies but is not trading.

We have been informed that on 28 February 1998, the assets of Stewarts Supermarkets Ltd were transferred to Tesco Stores Ltd and understand that the contracts of employment of all the above seven applicants were transferred to Tesco Stores Ltd on or about that date.

As the applicants transferred to employment of Tesco Stores Ltd, it would appear appropriate that Tesco Stores Ltd should be joined to the proceedings as a respondent pending the determination of the question of effect of a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations as regards the liability of the transferor and of the transferee.

If Tesco Stores Ltd is to be joined as a party to the proceedings, we would request leave to submit notices of appearance on behalf of Tesco Stores Ltd. We would also suggest that the hearing of these cases be stayed pending the determination of the effect of a TUPE transfer in the test cases in the English tribunals."

The tribunal then ordered that Tesco be joined to the proceedings by Order dated 19 November 2001 and issued to the parties on 1 December 2001.

9. .5 On 19 May 2003, following decisions in a series of cases in GB known as Preston & Others v Wolverhampton Health Care Trust & Others in which it was held that liability for pension benefits did not transfer in a TUPE situation, DLA wrote to the tribunals seeking to have Tesco dismissed from the proceedings. No relevant action was taken by the tribunal at that time, no doubt having regard to the uncertainties created by the various appeals still taking place at that time in the Preston litigation. Indeed, the issues relating to the issue of TUPE were not finally resolved until the decision of the court of appeal, in what subsequently became known as Powerhouse Retail Ltd –v Burroughs [2204] IRLR 979.
10. .6 DLA wrote to the Group Pensions Director of Tesco by letter dated 27 January 2005, setting out why it was of the opinion Tesco had no liability in respect of the part-time pension claims of the claimants.

"…

1. All seven employees were employed by Stewarts Supermarkets Ltd (SSL) at the relevant time.

2. All seven employees were denied access to membership of the occupation pension scheme operated by SSL on the grounds that they were part-time employees.

3. All seven employees became entitled to join the occupational pensions scheme when they became full-time employees or in 1993, whichever was earlier.

All the employees except one (Ms Brown) did join the pension scheme when they became eligible to do. All of them were members of the pension scheme by 1994, except for Ms Brown who refused to join the scheme.

4. All the employees (except Ms Brown) were members of the scheme by the time they submitted their complaints to the tribunal.

5. In 1997, Tesco Plc purchased the shares of SSL.

6. On 28 February 1998, SSL transferred all its assets, business and employees to Tesco Stores Ltd.

7. The whole of the business previously operated by SSL together with its assets and its workforce transferred to Tesco, the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply to the transaction.

8. With effect from 28 February 1998 Tesco Stores Ltd became the employer of the employees.

9. Under Regulation 7 of the TUPE Regulations, the liabilities of the transferor, (SSL) under the contracts of employment relating to an occupational pension scheme do not transfer to the transferee (Tesco).

10. Prior to 28 February 1998, the employees were employed by SSL. Any liabilities that SSL might have because these employees were not admitted to its occupational pension scheme will not transfer to Tesco and remain with SSL.

… ."

It appears that this letter, at some date between January 2005 and May 2005, came into the possession of the claimants' solicitors. There is no issue how this came about. The claimants' solicitors, by letter dated 13 May 2005, wrote to DLA, the solicitors for Tesco, to clarify, inter-alia, the relationship of Tesco Stores Ltd to Tesco Plc, whom the solicitors for claimants had also asked to be joined to the proceedings. In addition, the said letter concluded:-

"We would now formally request that you provide discovery of:-

(1) all relevant documents in relation to the series of transactions referred to at paragraphs 5, 6 and 7 of the letter of 27 January 2005.

(2) All documents which are or may become relevant in relation to this matter to include all of those documents which the respondent intends of rely upon at the hearing of this application."

11. .7 By a letter dated 26 October 2005 the solicitors for the claimants wrote to the solicitors for Tesco, DLA, indicating that they had been instructed by their clients to seek a pre-hearing review on the issue as to who were the proper respondents in this matter; and also seeking DLA's agreement that such a hearing should be held.

The DLA responded to the said letter in a letter dated 28 October 2005. Much of what was stated in the letter dated 27 January 2005 was repeated in this letter. In connection with this application for review, the counsel for the claimants placed considerable reliance upon the contents of the letter dated 28 October 2005. Under the circumstances, it is necessary to set out the letter in some detail. DLA did not agree a pre-hearing review was necessary:-

"…

The undisputed facts are as follows:-

1. All the relevant claimants were employed by Stewarts Supermarkets Ltd.

2. The claimants were denied access to membership of the occupational pension scheme operated by Stewarts Supermarkets Ltd on the grounds that they were part-time employees.

3. All the claimants (except Ms Brown) were members of the Stewarts Supermarkets Ltd pension scheme by 1994. Ms Brown refused to join the scheme.

4. In 1997 Tesco Plc purchased the shares of Stewarts Supermarkets Ltd.

5. In 1998, Stewarts Supermarkets Ltd transferred all its assets, business and employees to Tesco Stores Ltd, a transaction to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply. Is it the claimants' case that they did transfer to Tesco Stores Ltd or that they did not?

If they did transfer, Tesco has no liability for any exclusion of the claimants from the pension scheme prior to the transfer (Regulation 7 TUPE).

If, on the other hand, the claimants maintain that they did not transfer to Tesco, there can be no liability on that company for the exclusion of the claimants from the occupational pension scheme of their continuing employer.

Whatever the claimants' contention, it seems clear from the reasons stated above that no liability for the exclusion of the claimants prior to 1994 from the occupational pension scheme of their employer will or can attach to Tesco.

In those circumstances, we would suggest that the claimants' claims against Tesco be withdrawn.

We would reiterate that we do not consider that a pre-hearing review is necessary. If your clients persist with such an application, we will reserve the rights to seek costs against them.

… ."

12. .8 By letter dated 10 November 2005, the claimants' solicitors replied to DLA, saying that they were taking their clients' instructions. By letter dated 26 January 2006, the claimants' solicitors wrote to the tribunal stating, "following further instructions from USDAW, this matter is currently being considered by counsel in London with a view to making a final decision as to whether or not the claimants wish to proceed against Tesco Stores Ltd. Given its current workload, counsel has advised us that he will revert to us within 14 days and we would be most grateful for your further forbearance.

By letter dated 6 February 2006, DLA wrote to the tribunal stating that it was their view there could be no claim in this matter against Tesco and stating, inter-alia, "if, as we hope, the claimants decide not to proceed with their claim against Tesco, we would ask that the cases against Tesco Stores Ltd be dismissed; if on the other hand, the claimants persist in their claim against Tesco Stores Ltd, request that a Case Management Discussion by telephone be held to determine the way forward."

13. .9 By letter dated 20 February 2006, the solicitors for the claimants wrote to the tribunal formally withdrawing the claim against Tesco Stores Ltd and Tesco Plc, on behalf of the claimants. In fact Tesco Plc had not been joined to the proceedings at that stage. By letter dated 22 February 2006, to the tribunal, the solicitor for the claimants stated, inter-alia,:-

"For the avoidance of doubt we would confirm that:-

• we have withdrawn the claims against Tesco Stores Ltd (by way of our letter 20 February 2006);

• we wish to proceed against Stewarts Supermarkets Ltd;

• we wish to add ABF Pension Scheme as a respondent (as requested in our letter of 6 May 2005 – copied enclosed)."

14. .10 Following the said withdrawal, by the claimants of their claims against Tesco, the tribunal, by order dated 10 March 2006 dismissed the claimants' claims against Tesco.
15. .11 It has to be noted that, despite the claimants' solicitors' letter, dated 13 May 2005 sent to the solicitors for Tesco formally requesting discovery of various documents, as set out in the letter dated 13 May 2005, at no time prior to the letter of 20 February 2006, withdrawing the claims of the claimants against Tesco, did the claimants' representatives take any further steps to obtain discovery from Tesco - either of the specific documents referred to in the said letter or by way of general discovery. In addition, at no time prior to the withdrawal of the said claims by the claimants against Tesco as set out in the letter dated 20 February 2006, did the claimants' solicitors give any response to the two specific issues raised by Tesco's solicitors in their letter dated 28 October 2005. It is also clear that throughout this period, the claimants not only had the benefit of advice from counsel in London, who had been instructed by their union, USDAW, but also a national expert on pension cases (see Paragraph 3.12 below).
16. .12 Before the claimants' solicitor withdrew the claims of each of the claimants, as set out above, the claimants' solicitor wrote to each of the claimants in a letter dated 17 February 2006 in which it was stated, inter-alia,:-

"…

In relation to your particular case, while the union is very determined to do everything possible to pursue this matter on your behalf, we can only pursue entitlements that have a sound legal basis. Unfortunately, after much consideration and having taking further advice from our national expert on pension cases and a legal opinion from a barrister, we have reluctantly concluded that there is no case to be made against Tesco. This is because in strict legal terms any responsibility for any pension rights you may have had never passed to Tesco but rather remained with Stewarts and their (ABF) pension fund. In these circumstances, and on our advice, your union, USDAW, has very reluctantly concluded that it cannot continue to support any case against Tesco, as to do so would not only involve unjustifiable expenditure on legal costs but also risk substantial legal costs being awarded to Tesco against the union.

Accordingly, as discussed and agreed by telephone, we will now withdraw your claim against Tesco."

Further, there was no evidence produced to the tribunal, in connection with this application for review, to suggest that prior to the giving of the said advice by the claimants' solicitors, the claimants were specifically consulted; and instructions obtained, about the issues raised in the correspondence by DLA and, in particular, their response to the specific matters raised by DLA in their letter dated 28 October 2005; or that enquiries were made of each of the claimants about what documents (if any) they had in their possession and/or what documents (if any) they might or might not have signed in relation to the matters referred to in DLA's correspondence.

17. .13 As stated in the letter to the tribunal dated 22 February 2006, the claimants' solicitors had indicated that they wished to add ABF Pension Scheme as a respondent, as requested in their earlier letter of 6 May 2005. At a Case Management Discussion on 8 May 2006, as set out in the Record of Proceedings dated 17 May 2006, a Chairman of Tribunals decided to join the Trustees and Managers of ABF Pension Scheme, with liberty to apply if they wished to object to such joinder. By an Order dated 13 May 2006, the Chairman joined to the proceedings, as a party, the Trustees and Managers of ABF Pension Scheme, without prejudice to any application by the newly joined party to set aside the said joinder. By Order dated 12 April 2007, the title of the Trustees and Managers of ABF Pension Scheme was amended (by consent) to Associated British Foods Pension Trustees Ltd (second-named respondent herein). Pursuant to the said Order joining the second-named respondent to these proceedings, the second-named respondent entered a response to the claims of each claimant on 27 June 2006. In the said response, the second-named respondent contended, inter-alia, that it was not the proper party to the litigation and sought a pre-hearing review to consider the issue of which party/parties should be the respondent in this matter.
18. .14 By letter dated 3 July 2006, the tribunal copied the said responses to the claimants' representatives. By letter dated 30 June 2006, the solicitor for the second-named respondent wrote to the tribunal, with a copy to the claimants' solicitors stating, inter-alia, - "for the reasons set out in our clients' response we do not believe that they should be party to this litigation. Therefore we would respectfully request that the issue of which party/parties should be the respondent in this matter be dealt with at a pre-hearing review rather than at a full hearing. By letter dated 20 July 2006, the tribunal copied the letter, dated 30 June 2006, to the claimants' representative. In addition, the said letter informed the parties that the correspondence dated 30 June 2006 had been considered by the Vice President of the Tribunals, who had directed that the above matter be listed for a pre-hearing review on the following issues:-

1. Whether ABF Pension Trustees Ltd is a proper party to these proceedings?

2. If not who is the correct respondent?

The pre-hearing review to consider the above issue was arranged for hearing on 12 October 2006, as set out in the Notice of Hearing dated 7 August 2006. By letter dated 21 September 2006, the solicitors for the second-named respondent wrote to the solicitors for the claimants asking them to set out in writing the basis upon which it was contended that the claimants could bring a claim against the second-named respondent. The pre-hearing review listed, for 12 October 2006, was adjourned (by consent) to allow the parties and their representatives to prepare and exchange detailed submissions in relation to their respective positions in relation to the issues to be determined at the pre-hearing review; and it was further agreed, at a Case Management Discussion on 12 October 2006, that a further Case Management Discussion would be held 16 November 2006 to give case management directions/orders as might be necessary in relation to the said pre-hearing review. However, at the Case Management Discussion on 16 November 2006, counsel for the claimants indicated that, arising out of information documents etc which his instructing solicitors had received from the solicitors for the second-named respondent, he had been instructed to make an application to join Tesco in these proceedings, pursuant to Rule 10(1)(k)(r) of the Rules of Procedure. As set out in the record of these proceedings, dated 1 December 2006, the claimants' representative acknowledged that Tesco had previously been a party to the proceedings but had been dismissed from the proceedings under the circumstances, as previously set out in this decision. In addition, he also accepted that neither the parties nor the tribunal had been put on notice of this application pursuant to Rule 11 of the said Rules of Procedure. A direction was given by the Chairman that any application which the claimants wished to make must be made on or before 24 November 2006. By letter dated 24 November 2006, the claimants' representative made an application, inter-alia, for a Review of the said decision dismissing Tesco, pursuant to Rule 34 and in particular Rule 34(3)(d) and (e) of the said Rules of Procedure. The claimants also indicated that they were seeking an extension of the 14 day time limitation period under Rule 35.

19. .15 The response dated 27 June 2006 to the claimants' claims by the second-named respondent, which had been copied to the claimants' representatives by letter dated 3 July 2006 by the respondent, as stated above, contained in so relevant and material, the following extract:-

"2. The sale of Stewarts Supermarkets Ltd to Tesco Stores Ltd.

2.1 Pursuant to the terms of the sale and purchase agreement between ABF Investments Plc, Tesco Plc and Associated British Foods Plc dated 21 March 1997, the entire issued share capital of Stewarts Supermarkets Ltd was sold to Tesco Stores Ltd. The transaction became effective on 8 May 1997.

3. Transfer of pension benefits from the scheme to the Tesco Plc Money Purchase Pension Scheme.

3.1 In September 1997, the claimant was offered the opportunity of joining Tesco Plc Money Purchase Pension Scheme (the Tesco Scheme).

3.2 At this time, the claimant received a letter from Tesco Pension Trustees Ltd explaining that on joining the Tesco Scheme, the claimant had three choices in respect of her rights under the ABF Scheme, namely:

3.2.1 To transfer her ABF pension to the Tesco Scheme on special terms agreed between the Trustees of the two schemes on the advice of their actuaries;

3.2.2 To defer her ABF pension for past service, in which case she would remain entitled to benefits for past service on normal ABF terms, as if she had left service on 4 October 1997; or

3.2.3 To transfer her ABF rights (on normal ABF terms) to a personal pension scheme or similar arrangement.

3.3 In the same letter, it explained to the claimant that if she chose to transfer her ABF pension to the Tesco Scheme she would be credited with an enhanced transfer value.

3.4 On (relevant date inserted, as appropriate, for each claimant) the claimant signed and dated a form addressed to the Trustees of the ABF Scheme stating the following:-

"I require you to transfer the value of my rights to the benefits under the Associated British Foods Pension Scheme to the Tesco Plc Money Purchase Scheme.

I understand that, following this transfer, I will be credited with an enhanced transfer value under the Tesco Scheme, as described in the letter dated September 1997 from Tesco Pension Trustees Ltd. … I understand that, following the transfer, that I nor my spouse or dependents will have any further entitlement under the ABF Scheme

… ."

There was no dispute that Ms Brown did not sign such a form. Between September and November 1997, all the claimants, other than Ms Brown, transferred the value of their benefits under the ABF Scheme to the Tesco Pension Schemes (see further Paragraph 3.3 of this decision).

20. .16 At no time prior to the 10 November 2006 did the claimant's representative seek from the second-named respondent discovery of any of the documents referred to in the said response. On or about 10 November 2006, the solicitors for the second-named respondent provided voluntarily, on discovery, all relevant discoverable documents relevant to their application to set aside the joinder which had been ordered to be determined at the said pre-hearing review, including a copy of the agreement dated 21 March 1997 referred to in the said response. In addition, included amongst the discoverable documents, were relevant transfer documents signed by the claimants (other than Ms Brown), as described in Paragraph 3.4 of the response.

The said transfer document included the option set out at paragraph 3.4 but also the alternative option:-

"(2) I do not wish to transfer my rights from the ABF Pension Scheme to the Tesco Plc Money Purchase Pension Scheme on the special terms offered. Please arrange for the administrator of the ABF Scheme to contact me with details of my benefits on leaving the scheme as of 4 October 1997."

The said transfer form allowed each claimant to indicate their choice in the relevant box.

21. .1 When making this application for Review of the said decision, the claimant's representative relied, in particular, on having obtained by way of discovery from the second-named respondent, in November 2006, the sale and purchase agreement and the said transfer documents, and which he stated the representatives had not been aware of previously and, in particular, had not been referred expressly to in the letter dated 28 October 2005, when the solicitors for Tesco had denied liability.
22. .2 Mr Potter submitted that the claimants were still pursuing their claims against the first and second-named respondents; but in light of the said 1997 sale agreement and the particular matters set out in the second-named respondent's response referred to above, the claimants now wished to make an alternative claim against Tesco. He submitted that, pursuant to the terms of the agreement that rights and entitlement benefits had been so transferred, and arising from such transfers there was a potential consequent liability upon Tesco; and that this was something that required to be determined by the tribunal, but which could not be so determined unless Tesco were a party. Mr Potter stressed that, at this stage, he was only suggesting that there was potential liability against Tesco. He said that to establish whether there was such liability would require, at a substantive hearing, careful examination and interpretation of the various terms of the agreement and what had occurred as a result of the exercise of the terms of the agreement. He further submitted that the claimants and their representatives had not had knowledge of this potential alternative liability of Tesco, as no reference had been made by Tesco of any such agreement or the terms thereof in the correspondence dated 27 January 2005 from DLA to Tesco, but more particularly in the letter of 28 October from DLA to the claimants' solicitors. In essence, he submitted that the said letter from the claimants' solicitors was a misrepresentation of Tesco's position, with its omission of any reference to the above matters and the transfer options and the exercise of same by the claimants (other than Ms Brown); and if there had been such reference, the withdrawal of the claims would not have taken place.
23. .3 In view of the tribunal's decision, as set out below, I do not think it appropriate for me to express any view in relation to the claimants' contention about the potential liability of Tesco on foot of the said agreement – as it may be necessary for this tribunal or another tribunal to consider this in more detail for the purposes of determining the said joinder applications and/or in other hearings of these proceedings. It should be noted however that Miss McGrenera, in the course of her submissions, strenuously resisted any suggestion that her client, Tesco had any liability potential or otherwise, arising from the said agreement.
24. .1 From the outset of this hearing, Mr Potter recognised that, in making the application for review, the claimants were outside the 14 day time limit; and that, before the tribunal could determine the said application, it would be necessary for the tribunal to extend time on the just and equitable grounds.

I am satisfied that, in deciding whether to exercise the power to extend the time limit on the above grounds, it is necessary to have regard to the terms of the overriding objective, as set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to deal with cases justly. Dealing with a case justly includes, so far as practicable:-

(a) ensuring the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

25. 2 In this context, I considered that it is of particular importance to note that the 14 day time limit is a relatively short period of time and, in particular, in comparison to the normal three months time limit which is found, in employment legislation, for the commencement of proceedings. No doubt, in relation to an application for review, the shorter time limit was considered appropriate to enable a case to be dealt with justly, having regard, inter alia, to the public interest requirement that there should, so far as possible, be finality of litigation (see further Philips J in the case of Flint v Eastern Electricity Board [1975] ICR 395 at Page 404, when considering the width of the grounds for review - interests of justice require a review).

However, I am also satisfied the discretion given to a tribunal to extend time on the just and equitable grounds is a wide and unfettered discretion. Under the discrimination legislation, a similar provision is to be found to allow a tribunal to consider a claim that has been presented to the tribunal outside the normal three month limit 'if in all the circumstances of the case it considers that it is just and equitable to do so'. In my opinion, the absence of the words 'in all the circumstances of the case' in Rule 35(1) of the Rules of Procedure is not of particular significance. As was seen in the case of Hutchison v Westward Television Limited [1977] IRLR 69, this merely entitles the tribunal to take into account anything which it judges to be relevant. However, although case law, interpretating the above provisions under the discrimination legislation, is clearly relevant and to be taken into account in connection with the exercise of the discretion to extend time on just and equitable grounds under Rule 35(1) of the Rules of Procedure, it must be remembered that such case law is considering an extension of time for bringing proceedings, in circumstances where the normal period is three months; whereas Rule 35 relates to an extension of time in relation to a decision made by a tribunal, where the normal period of time in which to make an application is only 14 days.

In the case of Robertson v Bexley Community Centre [2003] IRLR 434 (a discrimination case considering extension of time to bring proceedings) the Court of Appeal made clear that an Employment Tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However, the Court stressed that time limits are exercised strictly in employment cases; and that when tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion. Rather, the Court made clear, on the contrary, a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The Court held that the exercise of discretion is thus the exception rather than the rule.

As the above case emphasises the onus at all times remains with the claimant. The claimants did not give any evidence; rather Mr Potter sought to persuade the tribunal to extend time, on the basis of his submissions and in light of the documents and events set out in the preceding paragraphs of this decision.

26. 3 I was not convinced that any undue prejudice would be caused to Tesco if time was extended; as I consider it has sufficient knowledge and records to be in a position to deal with the review application, for which extension of time is sought. But the absence of prejudice does not make it just and equitable to ignore the time limit (see further Johnston  v  Chief Constable of the RUC [1998] NI 188 approving Hickey v Lagan T/A The Fly Bar [1995] Unreported.
27. 4 In the case of British Coal Corporation v Keeble [1997] IRLR 336, the discretion to extend time to bring proceedings was held to be as wide as that given to the Civil Courts, by Section 33 of the Limitation Act 1980, to determine whether to extend time to allow proceedings to be brought in a personal injury action. However, in the case of London Borough of Southwark v Afolabi [2003] IRLR 220, it was made clear that the factors referred in Keeble would frequently serve as a useful check list; but there is no legal requirement on a tribunal to go through such a list in every case, provided of course that no significant factor has been left out of account by the Employment Tribunal in exercising its discretion. Again, it has also to be noted that all the above cases were concerned with an extension of time for the commencement of proceedings, not an application for review. But clearly, subject to the above, it was necessary for me to have regard, insofar as I considered relevant and appropriate, albeit in this different context, to the particular factors set out in Keeble, namely:-

(a) the length of and reason for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the parties sued had co-operated with any request for information;

(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the course of action;

(e) the steps taken by the claimant to obtain professional advice once he or she knew of the possibility of taking action.

28. 5 In this matter, the claimants have at all material times been legally represented. Indeed, it is apparent that the decision which is now sought to be reviewed, was taken after the trade union, who were supporting the claimants' claim, took expert pension and legal advice; and it was only following the taking of such advice that it was decided to withdraw the claims, which resulted in the decision dismissing the claimants' claims against Tesco. This decision was taken, before pursuing the application for discovery intimated in the claimants' representative's letter dated 13 May 2005. This had sought discovery, in particular, of the matters referred to in Paragraphs 5, 6 and 7 of the letter dated 27 January 2005. It is correct the said letter, nor the subsequent letter dated 28 October 2005, referred expressly to an agreement - it merely referred to various transactions. Although these were not detailed, they were likely to have involved some written agreements, having regard to the nature of the transactions and the various parties involved in these transactions. I have no doubt that, in seeking discovery, the claimants' representatives clearly anticipated there were written agreements and/or relevant written documents, albeit they did not know, from the terms of the said letters, the terms or details of any such agreements. Mr Potter, it has to be recalled, submitted that, pursuant to the terms of the agreement, rights and entitlement benefits were transferred with the said potential consequent liability upon Tesco. In addition, before taking the decision, no reply was given by the claimants' representatives to the specific issues raised by Tesco's then representatives, in their letter dated 28 October 2005. Also, there was no evidence of any attempt to consult with the claimants before the decision was taken, either about the specific issues raised and/or what documents they had or had had in their position in relation to any of the matters referred to in the said correspondence by Tesco's then representatives. If any of these steps had been taken, on the basis of what Mr Potter submits happened subsequently, it seems unlikely the decision would have been taken to withdraw the claims. Thus, this emphasises the necessity for the claimants' representative to act promptly, whenever the further relevant information, as submitted by Mr Potter, came into their possession with the service of the second-named respondent's response.

Whilst there is no doubt that Tesco's representatives, in their letter of 28 October 2005, were strenuously denying liability, as they were entitled to do, I do not accept that the threat of costs made in the letter was sufficient, in itself, to prevent the claimants' representatives taking the above steps, before deciding whether it was proper to withdraw the said claims. Mr Potter submits that the said letter was a misrepresentation and, in particular, in light of the further information provided in the second-named respondent's response, which had not been referred to by Tesco's representatives in their said correspondence to the claimants' representatives. I do not accept that the letter can be considered a misrepresentation. It may be argued it may not have set out all details of what had taken place between the various parties on foot of the various transactions/ agreements. But, in my judgment, it sets out sufficient to allow the claimants' representatives to properly take the steps, to which I have made reference above; and which they ignored, in my judgment, at their peril. In particular, although the letter did maintain Tesco's denial of liability, it invited the claimants to challenge the issues raised by Tesco's then representatives. But again, the challenge was not taken up.

Despite the foregoing, no further steps were taken by the claimants' representatives, even after the service of the second-named respondent's response to the claimants by the tribunal by letter dated 3 July 2006. If there had been any difficulty with the terms of the letter dated 28 October 2005, there could be no doubt the response referred expressly to the 1997 agreement and the transfer of pension benefits that subsequently took place. Again, despite Mr Potter's submission of the importance of what was contained in this document, no attempt was made to seek to discovery from the second-named respondent or to give any indication of the necessity to make the application for review of the decision dismissing Tesco. Again, there was no evidence that the claimants were consulted about the various matters in which they were involved, as set out in the response of the second-named respondent, including the reference to the various letters/ option forms sent to the claimants and the issue of transfer of benefits by them.

Although, by letter dated 20 July 2006, the claimants' representatives were informed that a pre-hearing review to consider the involvement of the second-named respondent to these proceedings, which was subsequently arranged for 12 October 2006, at which the terms of the second-named respondent's response was clearly going to be relevant, no issue was raised by the claimants' representatives in relation to the claimants' claims against Tesco and/or the necessity to make an application for review of the decision dismissing the claims against Tesco. Indeed, it was second-named respondent's representatives on 10 November 2006 who provided voluntary discovery to the claimants' representatives – in connection with the said pre-hearing review, which was to be case-managed on 16 November 2006. It was only at this Case Management Discussion that the first indication was given by the claimants' representatives of this application, which resulted in the formal application made on 24 November 2006. No evidence was given or explanation provided, despite my raising the issue with the claimants' representative for the absence of any action in relation to the making of this application for review - from the service of the second-named respondent's response in early July 2006 to the Case Management Discussion on 16 November 2006.

29. .6 The delay has been considerable since the decision to dismiss Tesco from the proceedings was issued to the parties on 10 March 2006 to the making of the application for review formally on 24 November 2006. In my opinion, no good reason has been given for the lack of action throughout the period. However, I am prepared to accept that, having taken the decision to withdraw the claims against Tesco, however much that decision may be criticised due to the failure to take the steps referred to above before doing so, the position of any liability of Tesco may not have been to the forefront of the matters being addressed at that time by the claimants' representatives; albeit they were still pursuing the second-named respondent throughout the said period. My particular concern relates to the further period of failure to take any relevant action in connection with this application in the period between early July 2006 and the Case Management Discussion on 16 November 2006; even though it was suggested the contents of the response of the second-named respondent was so important and reliant in establishing the potential liability of Tesco, with its specific reference to the 1997 agreement and the various other matters, which had not been expressly set out in the earlier correspondence from Tesco's then representatives. Despite this, no attempt, as set out above, was made to seek discovery on the second-named respondent, to consult with the claimants, seek their instructions and, in particular, to see what documentation they had in their possession, as referred to in the said response. No explanation has been given for this period of failure of some four months. It is has arisen in circumstances where, at all material times, the claimants were legally represented and in a position to obtain relevant information both from the second-named respondent and/or from the claimants, for the purposes of the application for review. Again as stated previously, all this is in a context where the normal time period for such an application for review is 14 days. Although Mr Potter has made it clear that he was only suggesting, at this stage, there was potential liability against Tesco, I was not prepared to refuse to extend time on that basis ; as I considered the strength or weakness of the merits of that issue was a matter to be further considered, as appropriate, in relation to the grounds for review if time was extended.

In the above circumstances, I have concluded that in the exercise of my discretion, I should not extend time on the just and equitable grounds. The application for review of the said decision is therefore refused and the decision is confirmed.

Chairman:

Date and place of hearing: 10 – 11 May 2007, Belfast

Date decision recorded in register and issued to parties:

THE INDUSTRIAL TRIBUNALS

SCHEDULE

CLAIMANT CASE REF No.

Joan Sterritt 04208/94SD

04209/04EP

Laura Brown 10135/95SD/EP

Patricia Kincaid 10143/95SD/EP

Hilary Whiteside 10152/95SD/EP

Patricia Simpson 04345/95SD/EP

Margaret McVeigh 00027/95SD/EP

Joan Locke 03719/95SD/EP