Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:  6604/09       

6605/09

6598/09

 

 

CLAIMANT:                          Ken Snoddy

 

RESPONDENTS:               1. Nortel Networks UK Ltd (in administration)

                                                2. Avaya Ltd

 

 

CLAIMANT:                          Garth Mathews

 

RESPONDENT:                  Nortel Networks UK Ltd  (In administration)

 

 

CLAIMAINT:                         Louise Firth

 

RESPONDENT:                  Nortel Networks UK Ltd (in administration)

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

(A)       In the Snoddy case, the joinder of Avaya Ltd (“Avaya”) as a respondent is hereby set aside.

 

(B)       In the Mathews case, the application for the joinder, as a respondent, of Genband Ltd (“Genband”) is refused.

 

(C)       In the Firth case, the application for joinder, as a respondent, of Ciena Ltd (“Ciena”) is refused.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):   Employment Judge Buggy

 

 

Appearances:

 

The claimants were represented by Mr Ken Snoddy (but see below).

 

Avaya was represented by Mr B Mulqueen, Barrister-at-law, instructed by Arthur Cox Solicitors.

 

Genband was represented by Mr B McKee, Barrister-at-law, instructed by Cleaver Fulton and Rankin.

 

Ciena was represented by Mr J Mehrzad, Barrister-at-law, instructed by Bird and Bird Solicitors.

 

Nortel Networks UK Ltd was not represented at the Pre-Hearing Review hearings.

 

 

REASONS

 

1.         Although Mr Snoddy is the representative on record for all of the claimants in these lead cases, Mr Francis Bondoumbou acted as advocate for the claimants during the hearings of this Pre-Hearing Review.

 

2.         For costs reasons, the administrators of Nortel did not participate in this Pre- Hearing Review.

 

3.         Nortel Networks UK Ltd (which is referred to below simply as “Nortel”) entered into administration by order of the English High Court on 14 January 2009.  That administration is still continuing.

 

4.         Nortel is part of the wider Nortel Group (referred to below as “the Nortel Group”).  That Group is headed by the Nortel Networks Corporation (the ultimate holding company).  On 14 January 2009, that company (together with some of its Canadian subsidiaries) sought protection under Canadian bankruptcy law in order to facilitate a reorganisation of the Nortel Group for the benefit of its creditors.  On the same day, Nortel Networks Inc. (a private company incorporated in the United States, and the primary US operating company) and associated companies filed voluntary petitions in the Delaware Bankruptcy Court, seeking the protection of Chapter 11 of the United States Bankruptcy Code.  In 2009, the Nortel Group in 2009 was a global supplier of networking solutions, its business being based upon the development, licensing and maintenance of intellectual property, upon the marketing of telecommunications, computer networks and software products and upon services based on that intellectual property.  In January 2009, it operated on a highly integrated basis across multiple jurisdictions.  It was for that reason that there were co-ordinated insolvency filings. 

 

5.         The order of the English High Court extended not only to Nortel, but also to 18 associated companies operating in separate European jurisdictions (but who had their Centre of Main Interest within the jurisdiction of the Courts of England and Wales). 

 

6.         According to the Nortel administrators, the position was as follows.  At the outset, the object of the administration was to rescue the business of Nortel as a going concern.  This required participation in a series of
co-ordinated asset sales, involving a reorganisation of various individual global business lines of the Nortel Group.  This of itself involved the maintenance of the various businesses pending sale and the provision of transitional services following any sale.  At the beginning, the administration of Nortel therefore was a true trading administration.

 

7.         On 30 March 2009, the joint administrators of Nortel gave notice terminating the employment of 89 people employed at Nortel’s premises in Monkstown, Newtownabbey in Northern Ireland.  In June, another substantial group, of the people employed at Nortel’s Newtownabbey premises, were also made redundant.           In March and June 2009, many of the Nortel employees based in England and Wales were also made redundant.

 

8.         In all, 93 individuals, who were made redundant by Nortel in 2009, have pending claims in the industrial tribunals in Northern Ireland.  Hundreds of claimants, who were made redundant by Nortel in England and Wales, brought proceedings in the employment tribunals in England and Wales.

 

9.         My account of the factual context of this pre-hearing review is to a considerable extent based upon the summary which is set out at paragraphs 2-4 of the judgment of the English High Court in Unite The Union  v  Nortel Networks UK Ltd (in administration) [2010] IRLR 1042. 

 

10.      Of the 93 redundant Northern Ireland-based Nortel workers who are bringing proceedings in the industrial tribunals, 30 are represented by Thompsons NI Solicitors; another 52 are represented either by Ken Snoddy (who is one of the lead claimants in these particular Pre-Hearing Review cases) or by William Irvine.

 

11.      Throughout this litigation, Mr Snoddy and Mr Irvine have always co-operated closely together.  Both of them have been acting as representatives of those workers who do not have legal representation.  There has been an informal division of labour between the two men, whereby Mr Snoddy has taken responsibility for the representation of those workers who were dismissed in March 2009, and Mr Irvine has taken responsibility for the representation of those workers who were dismissed in June 2009.  Mr Snoddy and Mr Irvine are ex-Nortel workers, who were made redundant in 2009.  Neither of them has any legal training or background.

 

12.      Mr Snoddy is on record as the representative of 29 claimants and Mr Irvine is on record as the representative of 23 claimants.  (In this Decision, I refer to claimants represented by Mr Snoddy and/or by Mr Irvine as “relevant claimants”.

 

13.      As currently drafted, the claim forms of the relevant claimants include claims in respect of wages and/or holiday pay and/or notice pay and/or redundancy pay.  However, those claims have now been resolved, either as a result of payments being made by Nortel, or as a result of payments being made by the Northern Ireland Redundancy Payments Service (“the RPS”).  Any payments made by the RPS were paid in its capacity as the statutory guarantor in respect of certain employment debts.

 

14.      All of the relevant claimants also benefited as a result of complaints which were made under Article 217 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  Those complaints were upheld.  As a result, all of the relevant claimants became entitled to protective awards.  Those awards were paid to those claimants by the RPS.

 

15.      Those claims of the relevant claimants which have not yet been resolved can be summarised as consisting mainly of unfair dismissal claims and of various miscellaneous discrimination complaints.  All of those outstanding complaints are outside the scope of the statutory guarantee.

 

16.      The remainder of this decision concentrates upon the unfair dismissal claims.

 

17.      As currently formulated (in the claim forms of the relevant claimants, as currently drafted), all of the unfair dismissal claims made by relevant claimants are complaints only against Nortel.  All of them are, in large part, based upon the argument that the relevant dismissals were made without following proper or adequate unfair dismissal processes.

 

18.      The administrators of Nortel have never been able, thus far, to give any useful guidance as to the amount, if any, which might be paid to relevant claimants in the event of their unfair dismissal claims against Nortel being successful.

 

19.      That is the background to the joinder and amendment applications which are the subject of this pre-hearing review.

 

Some relevant legislation

 

20.      Article 126 of ERO confers upon an employee the right not to be unfairly dismissed by his or her employer.

 

21.      Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPER”), as applied to Northern Ireland, provides, in effect, as follows:  If, before a “relevant transfer” within the meaning of TUPER, any employee of the transferor is dismissed, that employee is to be treated, for the purposes of the unfair dismissals legislation, as having been unfairly dismissed if the sole or principal reason for his or her dismissal is:

 

            (a)       the transfer itself or

 

            (b)       a reason connected with the transfer that is not an economic, technical or organisational (“ETO”) reason “entailing changes in the workforce”.

 

22.      The effect of Regulation 7(1) of TUPER is that a dismissal is automatically unfair if the sole or principal reason for the dismissal is the transfer itself, or a non-“ETO” reason connected with that transfer.

 

23.      The effects of Regulation 4(1) of TUPER, so far as relevant in the present context, can be summarised as follows:  If a relevant transfer, within the meaning of TUPER, occurs, the employees who can conveniently be defined as “relevant employees” in the present context include those to whom all of the following conditions apply:

 

(a)        They had been dismissed prior to the relevant transfer.

 

(b)        If they had still been employed at the time of the relevant transfer, they would at that time have been assigned to the transferred entity (in the sense in which the term “assigned” is used in the context of Regulation 4 of TUPER).

 

(c)        They were dismissed either because of the transfer itself, or for a reason connected with the transfer that was not an ETO reason entailing changes in the workforce.

 

24.      In relation to “relevant employees” (as defined at paragraph 23 above), the effects of Regulation 4(2) of TUPER are as follows:

 

            (1)       Upon the completion of a relevant transfer, all the transferor’s rights, powers, duties and liabilities under or in connection with the contract of employment of any relevant employee are transferred to the transferee.

 

            (2)       Any act or omission before the relevant transfer was completed, of or in relation to the transferor, in respect of the contract of employment of a relevant employee, or in respect of a relevant employee, is deemed to have been an act or omission of the transferee.

 

25.      Under Rule 10(2) of the Industrial Tribunals Rules of Procedure I have power to join, as a respondent to the proceedings, any person who I consider may be liable for the remedy claimed in these proceedings.  (See Rule 10(2)(j) of the Rules).

 

26.      Under Rule 10(2), I also have power to give leave to any claimant to amend his or her claim.  (See sub-paragraph (p) of paragraph (2) of Rule 10).

 

The applications

 

27.      At a Case Management Discussion (“CMD”) which was held on 13 November 2009, the administrators made it clear that they were willing to consent to the commencement and/or continuation of protective award complaints, but that they were not willing to consent to the commencement or continuation of any other types of proceedings.

 

28.      In April 2010, various protective award complaints, which had been made in relation to the relevant claimants, were the subject of a hearing.

 

29.      In June 2010, I decided that no further action would be taken in relation to all of the remaining pending cases, in this entire group litigation, until further notice. 

 

30.      In January 2012, the administrators said that they were now willing for the remaining Northern Ireland claims against Nortel to proceed.  There was no indication as to how many pennies in the pound creditors would receive, and the administration asserted that it was unable to predict when any such indication would be available. 

 

31.      Against that background, it was at that time generally agreed by the claimants in this litigation that no useful purpose would be served, at that time, by taking any further action in relation to the industrial tribunal litigation.

 

32.      In February 2013, the administrator’s representative, Ms Amanda Rowe, (who participated by phone), asked for the listing for hearing of all the pending cases.  Again, no indication was given as to how much, out of every pound of any debt, claimants would receive, in the event of their litigation being successful.  At that time, Ms Rowe told me that the administration was likely to continue beyond January 2014.

 

33.      On 12 April 2013, both Mr Snoddy (on behalf of the group of claimants which he represents) and Mr Irvine (on behalf of the group of claimants which he represents) wrote to the Office of Industrial Tribunals, requesting leave to amend the applications, of the relevant claimants, and requesting the joinder of Avaya UK (“Avaya”), Genband UK (“Genband”), Ciena Ltd (“Ciena”), and Ericsson as respondents to the proceedings.

 

34.      Those applications were predicated upon the following arguments on behalf of the claimants: (1) Various parts of the Northern Ireland part of Nortel had been the subject of relevant transfers, to Avaya, to Ciena, to Genband and to Ericsson respectively.  (2) Each of those relevant transfers had occurred after the dismissal of all of the Snoddy claimants and after the dismissal of all of the Irvine claimants.  However, if those claimants had not been dismissed beforehand, some of those claimants would, at the time of the relevant transfer, have been assigned to one or other of the transferred entities.  (4) In each instance, the relevant dismissal occurred with a view to making it easier to achieve a relevant transfer.

 

35.      A CMD took place on 18 April 2013.  During the course of that CMD, I considered the 12 April applications.  I invited the claimants to identify three lead cases:

 

(1)       one involving a claimant who had been assigned to whatever entity was subsequently transferred to Avaya,

 

(2)       one involving a claimant who had been assigned to whatever entity ultimately became the subject of a transfer to Genband and

 

(3)       one involving a claimant who had been assigned to whatever part of the Nortel entity was ultimately the subject of a relevant transfer to Ciena.

 

36.      During the course of the 18 April 2013 CMD, I was told that relatively few ex-Nortel employees in Northern Ireland had been assigned to a part of Nortel in Northern Ireland which was the subject of any relevant transfer to Ericsson (in comparison to the relatively larger numbers of ex-employees in Northern Ireland who had been assigned to parts of the relevant entity which had ultimately come into the hands of Avaya, Genband or Ciena respectively).

 

37.      During the CMD on 18 April 2013, three lead cases were identified:

 

(1)       Ken Snoddy’s case (case reference no. 6604/09).  Mr Snoddy wanted Avaya to be added as a respondent to his proceedings.

 

            (2)       William Irvine’s case (case reference no. 7107/09). Mr Irvine wanted Genband to be added as a respondent in his case.

 

(3)       Patrick Brogan (case reference no. 5788/09).  Mr Brogan wanted Ciena to be added as a respondent in his case.

 

38.      Subject to a proviso in each instance;

 

            (1)        I joined Avaya to the Snoddy case.

 

            (2)        I joined Genband to the Irvine case.

 

            (3)        I joined Ciena to the Brogan case.

 

39.      In each instance, the relevant proviso was that the joined party would have the right to apply to set aside the joinder. 

 

40.      I also indicated that, in the course of considering any such application, I would have to give consideration, in each instance, to the question of whether or not the relevant claimant needed leave to amend his/her claim form, so as to include a new claim (or claims) against the newly joined respondent.  I told the claimants that, in any such situation, I would have to decide whether that claimant should be granted such leave.

 

41.      I decided that those matters would be considered at a further CMD, which was scheduled to take place on 7 June 2013.

 

42.      During that June CMD, the claimants were represented by Mr Paul Stewart, Barrister, of Lamb Chambers in London; Avaya was represented by Mr Barry Mulqueen; Genband was represented by Mr Brian McKee; and Ciena Ltd was represented by Mr John Mehrzad.

 

43.      On behalf of the claimants, it was then made clear that, in each instance, the purpose of the joinder was to allow the relevant claimant to make a claim that his dismissal had been automatically unfair because the circumstances contemplated in Regulation 7(1) of TUPER applied in relation to his dismissal.

 

44.      I made it clear to the parties that no useful purpose would be served by listing a PHR in relation to the joinder application of any particular lead claimant unless the parties were agreed, for the purposes of that application, about both of two matters:

 

            (1)       that there had been a relevant transfer, of part of the Northern Ireland portion of the Nortel business, to the proposed respondent; and

 

            (2)       that that lead claimant would have been assigned to the relevant transferred entity, at the time of that transfer, if he or she had not already been dismissed beforehand.

 

45.      Against the background indicated in the last preceding paragraph above, Garth Mathews was substituted for Mr Irvine as a lead claimant, and Louise Firth was substituted for Mr Brogan as a lead claimant.

 

46.      Accordingly, this was a pre-hearing review in respect of the following issues.

 

47.      In the Snoddy case, the issue was whether or not the joinder of Avaya should be set aside and whether the claimant should be granted leave to amend his claim form so as to include the amendment (as described above) now being proposed by him.

 

48.      In the Mathews case, the issue was whether or not Genband should be joined as a respondent and whether the claimant should be granted leave to amend his claim form so as to include the additional claim referred to above.

 

49.      In the Firth case, the issue was whether the claimant should be granted leave to join Ciena and whether she should be granted leave to amend her claim form so as to include an additional claim of automatically unfair dismissal of the type envisaged above.

 

The facts

 

50.      My ultimate conclusions in these PHRs are based on findings of fact which are set out in the following sub-paragraphs below.  (For ease of reference, and in order to minimise avoidable duplication, I have also set out some additional findings of fact elsewhere in this Decision).  My findings of fact were as follows:

 

 

            (1)       Each of these lead claimants was dismissed by Nortel in March 2009.

 

            (2)       In the Snoddy case, the relevant transfer took place in December 2009 and, within three months thereafter, Mr Snoddy was aware of the fact that the relevant sale, of that part of the business, had taken place.

 

            (3)       In the Mathews case, the relevant transfer took place in May 2010 and Mr Matthews was aware, within three months thereafter, of the fact that the sale of that part of the business had taken place.

 

            (4)       In the Firth case, the relevant transfer occurred in March 2010, and Ms Firth was aware of the sale, of that part of the business, at the time of the sale.

 

            (5)       Out of the hundreds of Nortel ex-employees who were making claims in employment tribunals in England, only one, Mr Bondoumbou, decided to make a TUPER Regulation 7 unfair dismissal claim against a transferee.

 

            (6)       Mr Bondoumbou is not a lawyer and he has had no legal training.  However, he became aware of the possibility of making such a claim, because he had assiduously researched employment law issues, even issues which were of apparently peripheral relevance to his dispute with Nortel.  What he did could have been done by others, either at the same times as he did it, or at an earlier stage.

 

            (7)       He made the relevant amendment application, to the Reading employment tribunal, in 2012.  The relevant employment judge decided to grant him leave, in a decision which was issued in September 2012. 

 

            (8)       In November 2012, Mr Andrew Stephens (one of the Snoddy claimants) was informed by Mr Bondoumbou about his successful amendment application.  However, at that time, Mr Stephens was so informed on the basis that he was being asked to keep the information confidential.

 

            (9)       On 24 December 2012, Mr Stephens wrote to Mr Snoddy, with a copy of the relevant Reading judgment. 

 

            (10)     The applications which are at the heart of these PHR applications were made on 12 April 2013.

 

            (11)     I accept that, because of the number of relevant claimants, and because of the importance of achieving a common approach among those claimants, it was understandable that there was a delay of over three months, from Christmas 2012 onwards, in notifying the Office of the Industrial Tribunals of an intention to seek leave to amend, in the manner contemplated by the proposed amendments.

 

            (12)     I am sure that the possibility of making a Regulation 7 automatically unfair dismissal claim, and the possibility of making claims against TUPE transferees, never occurred to Mr Snoddy, to Mr Mathews or to Ms Firth until each of them, respectively became aware that Mr Bondoumbou had made such a claim in England.  Each of them was ignorant about the potential for making such a claim.  In my view, in each instance, that ignorance was not unreasonable ignorance, in view of the complexities of this rather arcane area of employment law.

 

            (13)     Relevant principles in this area of law were clarified by the Court of Appeal decision in 2012 in Spacewright Europe Ltd v Baillavoine [2012] IRLR 111.  However, by March 2009, case law at EAT level already indicated that there was a possibility that “relevant employees” (as specially defined above) could make a Regulation 7 automatically unfair dismissal claim against a transferee under a relevant transfer which occurred after their dismissals.

 

            (14)     I note that, in pursuing her claim of ordinary dismissal against Nortel, Ms Firth was represented by professional lawyers for a lengthy period.  I am satisfied that those lawyers never informed Ms Firth of the possibility of making a Regulation 7 claim against Ciena.  However, I am sure those lawyers were instructed for the purpose of pursuing the claimant’s ordinary unfair dismissal claim against Nortel.  I have no basis for concluding that they were under some obligation to inform the claimant of the possibility of a Regulation 7 claim.

 

            (15)     In each of these lead cases, as soon as the relevant claimant knew that the relevant transfer had taken place, he or she must also have known enough of the facts to provide an evidential basis for his or her contention that he or she would have been still assigned to the relevant transferred entity, if he or she had not been dismissed beforehand.  Accordingly, the factual context of these cases can be contrasted with the factual context of Afolabi (which is referred to below).  In the latter case, the claimant only became aware of essential evidence (evidence which made all the difference to the viability of his case) several years after the carrying out of the alleged discriminatory acts.  

 

The issues

 

51.      The case of Gillick v BP Chemicals Ltd [1993] IRLR 437 is clear authority for the proposition that time-limits do not apply in relation to joinders.  In each of these lead cases, the parties agreed on the following propositions.

 

            (1)       If the relevant application for leave to amend was granted, then the new or proposed additional respondent was a proper party to the proceedings.

 

            (2)       If, on the other hand, the relevant application for leave to amend was refused, then the relevant new actual or proposed respondent was not a proper party to the proceedings.

 

52.      In each lead case, it was conceded on behalf of the claimants that the relevant application for leave to amend was not merely a relabeling exercise and that, instead, it involved the addition of a new cause of action.

 

53.      In each case, for the purpose of these PHRs only, the relevant respondent accepted the validity of two propositions:

 

            (1)        There had been a relevant transfer and

 

            (2)       if the relevant claimant had not been dismissed prior to that transfer, he or she would have been assigned to the transferred entity at the time of that transfer.

 

54.      In each case, it was agreed between the parties that it had not been reasonably practicable for the claimant to present his or her automatically unfair dismissal claim against the new respondent within three months from the date of his or her dismissal.  Accordingly, in these cases, the focus of attention shifted to the secondary time-limit which is provided for by Article 145(2) of ERO.

 

55.      In each case, the respondent argued that the period of delay, from the date of the relevant transfer in that particular case, to the date of the relevant request for amendment of the proceedings, was far too long to constitute a “further period” which a reasonable tribunal could consider to be reasonable.

 

The arguments

 

56.      During the June CMD, the claimants were represented by Mr Paul Stewart, who practices as a barrister in England.  In advance of that CMD, Mr Stewart provided a written submission (“the Stewart Submission”).  During the course of the hearing of this Pre-Hearing Review (in August 2013), Mr Bondoumbou also produced a written submission (“the Bondoumbou Submission”).

 

57.      Against that background, at the end of the August 2013 tranche of the PHR, all of the respondents’ representatives asked for permission to present written submissions (“Submissions”).  Mr Bondoumbou agreed to that proposition, on the understanding that he would have the opportunity to provide written comments (“Comments”) in relation to those Submissions.  Against that background, I agreed to the respondents’ requests.

 

58.      Accordingly, a process was set in train, which broadly followed the process recommended in Barking and Dagenham London Borough v Oguoko [2000] IRLR 179.

 

59.      Below, any reference to a “Submission” is either a reference to the Stewart Submission of June 2013, to the Bondoumbou Submission of August 2013, or to a subsequent Submission of one of the respondents.  For the sake of completeness, I should note that, on behalf of Ciena, Mr Mehrzad provided helpful written submissions both prior to the June CMD and also prior to the main hearing.

 

60.      In line with the arrangements which were agreed at the end of the August 2013 tranche of the PHR, “Comments” were sent on behalf of the claimants in relation to the Submissions of each respondent.  As I made clear to the parties, the purpose of Submissions and Comments was to provide arguments.  It could not properly include any additional evidential material.  Accordingly, I took no account, for evidential purposes, of any evidential material mentioned or referred to in the Comments.

 

61.      Because of the existence of the Submissions and of the Comments, it is unnecessary for me, in this Decision, to comprehensively record all of the arguments of the various parties.  However, from time to time, during the course of this Decision, I do refer to aspects of the arguments of the various parties.  I want to draw attention to the high quality of the arguments and Submissions and Comments in this case.  Although Mr Bondoumbou has no legal qualifications, he has made some powerful legal arguments on behalf of the claimants.  The arguments and Submissions, on the part of the legally qualified representatives, were of a very high standard.  I am particularly grateful to Mr Mehrzad because of the comprehensive nature of his discussion of the legal issues.

 

 

The law and my conclusions

 

62.      In each case, I had two matters to consider:

 

            (1)       First, I had to decide whether the proposed new claim would have been   brought within the relevant time limit if it had been presented, in fresh proceedings, at the time when the relevant request for amendment was made.

 

            (2)       Secondly, if I concluded that the proposed new claim, if brought by way of fresh proceedings in April 2013, would have been out of time, I then had to consider whether I should nonetheless grant leave to the relevant claimant, to amend his or her claim by adding this additional claim, in the exercise of what all parties recognise is a vestigial discretion (a discretion, in the context of an application for leave to amend, to allow such an application, even if the proposed amended claim would have been out of time if it had been brought in separate proceedings).

 

63.      In the context of the time-limit, the focus of attention is upon the provisions of paragraph (2) of Article 145 of ERO, which are in the following terms:

 

 

“(2)      ... [An]  industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal —

 

(a)          before the end of the period of three months beginning with the effective date of termination, or

 

(b )         within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.

 

64.      In each of the lead cases, the relevant respondent accepts that it was not reasonably practicable for the proposed new claim to have been brought within the relevant primary time-limit.  Accordingly, in each case, the time-limit question is whether or not the relevant claim was brought within such further period as I consider to be reasonable.

 

65.      In my view, in this connection, the most helpful guidance is to be found in the judgment of Underhill P in Cullinane v Balfour Beatty Engineering Services Ltd [2011] UKEAT 0537/10/0504.  At paragraph 16 of his judgment in that case, Underhill P made the following comments:

 

            “The question at “stage 2” is what period – that is between the expiry of the primary time-limit and the eventual presentation of the claim – is reasonable.  That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question of whether it would be just and equitable to extend time.  It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted – having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time-limit is three months.  If a period is, on that basis, objectively unreasonable, I do not see how the fact that the delay was caused by the claimant’s advisers rather than by himself can make any difference to that conclusion”.

 

66.      In each case, against the background indicated above, in deciding whether the claimant brought the proceedings within such “further period” as was reasonable, I have focused, in particular, on three issues, which are the issues agreed by all the parties as being the most relevant issues in that context:

 

            (1)        the reason for the delay.

 

            (2)        any prejudice suffered by the relevant respondent because of the delay and

 

            (3)        the duration of the delay.

 

67.      In each case, I turn first to the reason for the delay.

 

68.      I am satisfied that Mr Mathews and Ms Firth were unaware of the possibility of making a claim (against a transferee) of automatically unfair dismissal, pursuant to Regulation 7 of TUPER, until that possibility was brought to their attention during the course of the month of March 2013.

 

69.      There was controversy between the parties as to whether Mr Snoddy became aware of the possibility of bringing a Regulation 7 automatic unfair dismissal claim (against a transferee) at some date prior to the date on which he acknowledges that he did become aware of the possibility.  (According to Mr Snoddy that date was a date during February 2013).  There is no doubt that Mr Stephens sent Mr Snoddy an email informing him of that possibility, on 24 December 2012.  My understanding is that Avaya’s position was that they contended that Mr Snoddy became aware of the fact that Mr Bondoumbou had obtained leave to bring a Regulation 7 automatic unfair dismissal claim, on a date much earlier than Christmas 2012, and closer to the date upon which the leave was actually granted to Mr Bondoumbou.

 

70.      In deciding the issues in these cases, I have assumed that Mr Snoddy did not become aware of Mr Bondoumbou’s amendment-leave success until February 2013.

 

71.      I am sure that, in assessing what “further period” is reasonable (in the context of the secondary time-limit in Article 145) the “goodness” or, otherwise, of the reason for delay is a matter to be taken into account.  The “goodness” of such reasons varies, within a relatively wide continuum.  At opposite ends of that continuum are very good reasons and very bad reasons.  If a claimant had been in a coma throughout the entire period of “secondary” delay, that would be an excellent reason for that “further period” of delay.  On the other hand, if the entire period of “further” delay was explained merely by the fact that the claimant, although always meaning to do it, had never quite got around to putting in a claim, that would be a very poor reason for delay.  In my view, ignorance as to one’s legal entitlements, in the context of TUPE, is neither a very good reason nor a very bad reason.  It is more or less in the middle of the relevant continuum.

 

72.      Secondly, I next move on to consider the “prejudice” issue.

 

73.      In the Genband Submission, it was asserted that, because of the delay in bringing these proceedings, there could no longer be a fair hearing.  I reject that proposition.

 

74.      In the Submissions of all of the respondents, much was made of the fact that the administrators are not currently based in Northern Ireland, and that most of the documentation which is relevant in the context of these applications is now held in Great Britain.  However, I am far from sure that those circumstances are the result of the delay in initiating these new claims. 

 

75.      In any event, at least in relation to the documentation and in relation to three out of four of the administrators of Nortel, it seems to me that the provisions of section 67 of the Judicature (Northern Ireland) Act 1978 would be of assistance to the respondents, in the event of leave to amend being granted.  Subsection (1) of section 67, so far as material, is in the following terms:

 

“(1)        In connection with any cause or matter in or pending before ... any inferior court or tribunal in aid of which the High Court may act, a judge of the High Court ...  may, if satisfied that it is proper to compel—

 

  (a)       the personal attendance at any proceedings of any witness not within the jurisdiction of the court; or

 

  (b)       the production by any such witness of any document or exhibit at any proceedings,

 

order that a writ of subpoena ad testificandum or writ of subpoena duces tecum shall issue in special form commanding the witness, wherever he shall be within the United Kingdom, to attend the proceedings, and the service of any such writ in any part of the United Kingdom shall be as valid and effectual to all intents and purposes as if it had been served within the jurisdiction of the court”.

 

76.      Furthermore, Ernst and Young is a respectable firm of professionals.  I am sure that that firm would provide much relevant documentation, on a voluntary basis, if requested to do so by a Northern Ireland tribunal.

 

77.      The respondents have drawn attention to the fact that the administrators decided to participate in the defence of the collective consultation complaints (the protective award applications), but have now indicated that they do not intend to participate in the defence of the relevant claimants’ unfair dismissal claims.  That is a matter for the discretion of Nortel.  I have no means of knowing whether Nortel would have taken a different view if these proposed additional claims had been initiated more speedily.  Indeed, I cannot see, logically, why an administrator, who has not participated in defending “ordinary” unfair dismissal claims against Nortel in Great Britain would participate in the defence of unfair dismissal claims in Northern Ireland, in circumstances in which a new, and key, issue in Northern Ireland was whether or not Nortel’s liability had (as a result of relevant TUPER transfers) been eliminated.

 

78.      In London Borough of Southwark v Afolabi [2003] IRLR 220 (at paragraph 31 of the judgment), Gibson LJ makes the point that, in a case in which it is alleged that  delay in bringing the proceedings has affected the cogency of the evidence, that usually should be proven specifically, and the allegation usually cannot easily be established merely by making general observations about the effects of the passage of time.

 

79.      In considering the prejudice issue, I have also taken account of the point made on behalf of the claimants, that it is highly likely that the relevant documentary material (relating to issues germane to the question of why these particular claimants were dismissed) is likely to have been preserved, given that this is an ongoing administration.

 

80.      Having said all that, I do accept that, in these cases, because of the passage of time, the recollections of the administrators (about what they were thinking of, and  why they were thinking it, at the time of the dismissals in March 2009) will be significantly diminished.  In this connection, I note the observations of Briggs LJ in Kavanagh v Crystal Palace FC Ltd [2014] IRLR 139, (at paragraph 26 of the judgment), where he pointed out that Regulation 7 of TUPER requires “... a subjective fact intensive analysis of the “sole or principal reason” for the relevant dismissal ...”.

 

81.      Thirdly, and finally, I turn to the duration of the period of post-relevant transfer delay in each case.

 

82.      In each case, that period of delay was very lengthy.  There is a need for legal certainty and finality, especially given the shortness of the primary limitation period in respect of unfair dismissals.  There is a strong public interest in unfair dismissal claims being brought promptly.

 

83.      In the Snoddy case, the relevant transfer occurred in December 2009, and more than three years elapsed thereafter until the relevant application to amend the claim form was made.  In the Mathews case, the relevant transfer occurred in May 2010, and nearly three years elapsed between then and the date on which the relevant application for leave to amend was made.  In the Firth case, the relevant transfer occurred in March 2010, and the application for leave to amend was not made until just over three years later.

 

84.      In summary, in each of these cases, I am satisfied that, if the claim for automatically unfair dismissal (pursuant to Regulation 7 of TUPER) had been presented in fresh proceedings in April 2013, that claim would have been time-barred, because it would not have presented within a further “reasonable” period within the meaning of Article 145(2) of ERO.  In arriving at that conclusion, I have taken account mainly of the combined effect of the following:

 

(1)       the reason for the delay, which I accept was genuine ignorance, and reasonable ignorance, as to the relevant claimant’s legal entitlements;

 

(2)       the significant, although not very substantial, effect of the delay upon the cogency of the evidence; and

 

            (3)        the very lengthy duration of the delay.

 

85.      In each case, that is not the end of the matter.  In each of these three cases, I still have a discretion to allow the proposed amendment.

 

86.      I have decided not to allow the amendment in any of these three cases.  In each case, in arriving at that conclusion, I have had regard to the following.  First, I have had regard to the statements of principle, and to the factors which are set out in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650.  Secondly, I have had regard to the statements of principle and to the factors which are set out in Selkent Bus Co. Ltd v Moore [1996] ICR 836.  ThirdIy, I have had regard to the of Underhill LJ, in Abercrombie v Aga Rangemaster Ltd [2013] IRLR 953, at paragraph 50 of the judgment, where he makes the following observations:

 

                                    “...  Mummery J says in his guidance in Selkent that the fact that a fresh claim would be out of time (as will generally be the case given the short time-limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend.  That is no doubt right in principle, but its relevance depends on the circumstances.  Where the new claim is wholly different from the claim originally pleaded, the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time-limits by introducing it by way of amendment.  But where it is closely connected with the claim originally pleaded ... justice does not require the same approach: NB that in High Court proceedings amendments to introduce “new claims” out of time are permissible where “the new cause of action arises out of the same facts or substantially the same facts are already in issue” (Limitation Act 1980, section 35(5)) ...” 

 

I regard those comments, in Abercrombie, as being merely declaratory of the state of the law which is already evident from the various other cases which were cited to me in oral argument, in the course of the Submissions, or in the course of the Comments.

 

87.      I am sure that these are cases in which the new claim (the automatically unfair dismissal claim because of the situations envisaged in Regulation 7 of TUPER) is indeed wholly different from the claims as originally pleaded.

 

88.      I am also sure that the proposed new claim does not arise out of substantially the same facts as those which are already in issue in the proceedings as currently formulated.  In the proceedings as currently formulated, the focus of attention is on whether or not proper dismissal processes were followed.  However, the new claim would focus on issues such as whether the administrators dismissed the claimant mainly for the purpose of making a future relevant transfer easier.  (The latter issue is an entirely different issue, involving entirely different evidential considerations, from the issues which are at the heart of the proceedings as currently formulated).

 

89.      I also note the very substantial periods of delay.

 

90.      I also note that, because of the delay in raising the proposed new claim, the cogency of the evidence is significantly affected.

 

91.      For those reasons, and with some regret, I have concluded that each lead claimant must be refused leave to amend his or her claim form, so as to include the new claim of automatically unfair dismissal.

 

92.      I now wish to draw attention to my conclusions in respect of some miscellaneous points, which are not of central significance in the context of this PHR.

 

93.      In Comments, Mr Bondoumbou drew attention to paragraph 12 of Walsall MBC v Birch UKEAT/0376/10, as authority for the proposition that, in the context of a relevant transfer, the time-limit for a claim against a new respondent only runs from the date of the relevant transfer, if that new respondent is the transferee.  I can understand why Mr Bondoumbou came to that conclusion.  However, in light of the overall legal context of Walsall, it is clear that the relevant proposition only applies in the context of an equal pay claim.  (See paragraph 11 of Walsall).

 

94.      I note that, in Walsall, the actual period of delay, after the expiration of the limitation period, was only nine months.  (See paragraph 14 of Walsall).

 

95.      Mr Mehrzad drew my attention to the decision of the Employment Appeal Tribunal in Ryan v Taylorplan Services Ltd and Another UKEAT 826/99, in which it was held that the claimant had applied too late for leave to amend her claim so as to include a claim for unfair dismissal.  However, I note that Ryan seems to be based on the premise that a tribunal has no power to grant leave to amend if the proposed amended claim would have been out of time if it had been initiated by way of fresh proceedings.  (See paragraph 21 of the Ryan judgment).  In my view, that circumstance diminishes the current persuasiveness of Ryan in this area of law.  In any event, the period of delay in Ryan was very much longer than the periods of delay in the present cases.

 

Procedural matters

 

96.       This pre-hearing review was heard over a period of two days in August 2013 and over a further period of two days in February 2014.  The lengthy intervening gap, between those two segments of the hearing, occurred against the following background, and for the following reasons.

 

97.       During the course of the August segment of the hearing, Mr Bondoumbou presented oral testimony from two claimants, who are not lead claimants in respect of this PHR; however, he presented no oral testimony from any of the lead claimants.

 

98.       In August, none of the respondents drew attention to the possibility that it might ask me to take account of the fact that the relevant claimant had omitted to provide any sworn testimony, as a factor in deciding the PHR issue.  At that time, I was under the impression that, for pragmatic reasons, none of the respondents would be taking that point.

 

99.       However, when the Submission of Avaya arrived, it became clear that Avaya was indeed going to ask me to take into account the fact that the relevant claimant had not provided personal sworn oral testimony.

 

100.    The respondents’ Submissions were provided in September 2013.  The claimant’s comments in relation to the respondent’s submissions were provided in October 2013.  In late October 2013, I began the process of drafting the Decision in this case.  It was only then that I realised that the Avaya Submission, at paragraph 11, included the following argument:

 

                        “This Tribunal is respectfully requested to consider [the amendment-leave issue] in the context that the Claimant did not present any oral evidence at hearing.”

 

101.    When I noticed that aspect of Avaya’s Submission, I decided to hold another Case Management Discussion in this case, at the earliest opportunity.  That CMD took place in November 2013.  During the course of that hearing, I made it clear to the parties that I was not prepared to allow the claimants to lose the PHR because of some procedural mishap.  In that connection, I was mindful of views expressed in the Court of Appeal decision in Gill  v  Northern Ireland Council for Ethnic Minorities [2001] NIJB 289, at paragraph 59 of the judgment, where the Court of Appeal encouraged tribunals to make sure that procedural errors do not affect the ultimate outcome of proceedings, if such errors could be corrected without causing undue prejudice to any party.

 

102.    I noted that, during the course of the November CMD, none of the respondents  stated that they would not be asking me to take account of the relevant omission (the omission to call the lead claimants), in deciding the PHR issue.

 

103.    Against that background, during the course of the November CMD, I acceded to Mr Bondoumbou’s request to be allowed to call the lead claimants as witnesses.

 

104.    Accordingly, the PHR hearing was reconvened, for the earliest date on which everybody (Mr Bondoumbou, the three barristers, the three new witnesses, and myself) was available.  The resumed dates of the hearing were 24 and 25 February 2014.

 

105.    The need to reconvene the hearing did not greatly add to its overall duration.  If the evidence of the three claimants had been heard during August, the hearing would probably have lasted for three days, at least.  Accordingly, the fact that the hearing took place in two stages probably did not add substantially to the overall duration of the hearing; at most, it may have added a half day to that duration.

 

106.    The need to reconvene did however substantially delay the eventual outcome (subject to any appeals) of this PHR.  I greatly regret that delay.

 

107.    Who is at fault for this situation?  Certainly not Mr Bondoumbou, who, as a
non-lawyer, could not have been expected to know of the possible implications of failing to call the lead claimants.  None of the representatives of the respondents can fairly be blamed either.  (In my view, legally qualified representatives are not required to identify potential procedural legal hazards to claimants, even if those claimants are not legally represented).

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:     20 and 21 August 2013; and 24 and

        25 February 2014, Belfast.

 

Date decision recorded in register and issued to parties: