United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 308_93_2510

Appeal No. EAT/308/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th October 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MR S M SPRINGER MBE

MRS M E SUNDERLAND JP

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MR D BAXTER          APPELLANT

BRITISH TELECOM PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE APPELLANT


 


MR JUSTICE KNOX: This is an appeal from an Order made by the Regional Chairman dated the 29th October 1992 and sent to the parties on the 30th October 1992, striking out the Originating Application in this matter under Rule 12(2)(e) of the Industrial Tribunals (Rules of Procedure) Regulations 1985. The Rule reads as follows so far as is relevant:

"A tribunal may, if it thinks fit, -

(e) subject to the Proviso below, at any stage of the proceedings order to be struck out or amended any originating application or notice of appearance or anything in such application or notice of appearance on the grounds that it is scandalous, frivolous or vexatious;

the proviso reads:

"Provided that before making any order under (e) . . the tribunal shall send notice to the party against whom it is proposed that any such order should be made giving an opportunity to show cause why such an order should not be made."

That was, in fact, done because a letter was sent on 15th September 1992 to Mr Baxter to which he replied on the 19th October in a full letter which is in our bundle.

Mr Baxter has not appeared before us today, nor has anyone appeared on his behalf, but we have had the benefit of a letter from his wife dated the 24th October 1993 in which she says that she is writing to say that her husband would be unable to attend this hearing and that he is anxious that the appeal should proceed and she therefore, expresses the hope that we can consider her husband's appeal in his absence. She points out that he has submitted a considerable number of documents and hopes that the information he has provided will be sufficient for us to consider the appeal. That is quite right because there a substantial bundle which we have all had the opportunity of reading, and have read. There is a good deal of medical evidence, the details of which do not directly concern this Tribunal, which has no medical qualifications, but we make assumptions in Mr Baxter's favour, at this stage, with regard to that. I say "assumptions" quite deliberately because these are not findings of fact, this being a preliminary application, the Respondent is not present or represented before us and therefore the matter has to be dealt with on the footing that the allegations made by Mr Baxter, are established. We therefore assume in his favour that his medical condition is, as he claims; notably, that it is and has been such that his application for medical retirement from, as long ago as April 1988, could have been granted. He relies, in that regard, on a letter that was sent to his wife dated 10th June 1992 by a Mr Marner, Pensions Liaison Manager of British Telecom, Mr Baxter's late employers, in the course of which Mr Marner said this:

"Even though the Chief Medical Officer is now prepared to issue a retrospective certificate from 6 April 1988 the granting of medical retirement from that date would be contrary to BT's own instructions on medical retirement."

On that basis we accept, for present purposes, that Mr Baxter's medical condition was such that medical retirement could and it may be, for aught we know, should have been granted to him from April 1988. We also assume, and this is hardly controversial, that British Telecom has never granted any such application and thirdly, it is clear that Mr Baxter's application was originally submitted in January 1988 and he, in his own material, which we have read, in support of this appeal, says this:

"My initial application for medical retirement was submitted in January 1988 and was resubmitted in November 1990 when my medical condition stabilised."

and finally, we think, it is perfectly clear, and indeed this is something that Mrs Baxter, in her latest letter of 24th October 1993, says in terms, that her husband's employment with British Telecom terminated on the 6th April 1988. That is in the fourth paragraph of her letter. It is also evident from a mass of other documentation.

On those assumptions and facts, the question arises whether the Order by the Regional Chairman striking out the Originating Application, which was presented on the 7th July 1992 is one which this Tribunal has jurisdiction to reverse. Our jurisdiction is limited to errors of law and for this appeal to be arguable so as to go forward for a full hearing it has to be shown to us that there is an arguable case for saying that there an error in law in the Order striking out Mr Baxter's Originating Application.

We have, after careful consideration of the matters before us, have come to the conclusion that there is no such arguable case. It seems to us that there are really only two possible analyses of Mr Baxter's case. The first is that what Mr Baxter is really seeking is specific performance of a contractual obligation on the part of British Telecom to grant medical retirement as from April 1988. We express no view as to whether that is a valid claim as a matter of law or not, because the Industrial Tribunal, and therefore this Tribunal, has no jurisdiction with regard to the enforcement of contractual obligations. That is a matter for a civil action and the papers before us indicate that there are, on foot, civil proceedings. What their scope and ambit is is not for us to say but it is certain that civil proceedings for the enforcement of a contractual obligation are outside the jurisdiction of the Industrial Tribunal.

The other way of analysing Mr Baxter's claim, which comes nearest to showing a possible jurisdiction in the Industrial Tribunal, is that when his employment terminated, as it clearly did in April 1988, he was dismissed by British Telecom and that that constituted an unfair dismissal.

British Telecom's case of course is that Mr Baxter abandoned his employment but we assume, as a matter of fact, that Mr Baxter's case that he did no such thing, is correct. The issue then arises as to whether there is an arguable case for Mr Baxter to pursue, before this Tribunal, that he was unfairly dismissed as long ago as April 1988. It is of course, self evident that well over four years passed between the time when the employment of Mr Baxter terminated and the presentation of the Originating Application and the jurisdiction of the Industrial Tribunal is limited with regard to time factors by the provisions of Section 67(2) of the Employment Protection (Consolidation) Act 1978.

The Chairman of the Industrial Tribunal dealt with this matter on the basis that he was not dealing with delay in presenting the Originating Application because that was something which required a decision of the full tribunal rather than a decision by him. His jurisdiction as an individual is of course limited to certain matters which do, undoubtedly include the jurisdiction under the Rule which I have read in Rule 12 of the Industrial Tribunal's Rules of Procedure. We have come to the conclusion that even assuming, contrary to the findings of the Chairman of the Industrial Tribunal, that this is not a case that really is solely one of seeking a retrospective medical certificate, but assuming in Mr Baxter's favour that it is a case of potential unfair dismissal, nevertheless the point regarding the delay in presenting the Originating Application is so overwhelmingly strong against Mr Baxter that it falls within the provisions of Section 67(2) of the Employment Protection (Consolidation) Act 1978. The subsection in question reads:

"Subject to subsection (4), [which is not relevant to this matter] an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or 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 the period of three months."

Mr Baxter has submitted that the effective date of termination should be regarded as the date when the letter, which we read an extract from earlier, was sent in June 1992 containing the appreciation, regarding Mr Baxter's medical condition, of the Chief Medical Officer of British Telecom. That is, we are quite satisfied, an unarguable proposition. The employment ceased in April 1988 and either there was or there was not a dismissal at that stage. What there certainly was, was a termination of employment and it follows from that that there cannot have been an unfair dismissal in June 1992. So the argument that the effective date of termination had not arrived in April 1988 and did not occur until June 1992, is, we are satisfied, a hopelessly unarguable one.

The other way of looking at the matter would be that the effective date of termination was indeed in April 1988 but it was not reasonably practicable for the complaint to be presented before the end of a period of three months from that date, which of course would take one into July 1988 rather than July 1992. That too, we are satisfied, is an unarguable proposition, principally because of what Mr Baxter, very frankly, says in his own application, namely, that his medical condition had stabilised by November 1990 and it is clearly apparent that although Mr Baxter is a person who, unfortunately, suffers from very severe disabilities, and we are told, and we accept, is incapable of working because of those disabilities, nevertheless, with the assistance of his wife, he has been in a position to take quite effective steps to put forward the case that he wishes to prosecute. In those circumstances it seems to us hopelessly unarguable to suggest that it was not reasonably practicable for Mr Baxter to present the complaint that he has presented long before July 1992. Nothing that we can see has happened, between November 1990 when he himself says that his medical condition stabilised, and the date when he did actually present his Originating Application, the 7th July 1992, to warrant bringing forward so far as just under four years, the time for bringing that application.

Those are the considerations that have led to the conclusion that whatever rights Mr Baxter may have, as a matter of contract, which is not a matter for this Tribunal, he did not have any enforceable claim that the Industrial Tribunal could give effect to.

In those circumstances the Order that the Regional Chairman made is one in which we detect no significant error of law and this appeal will therefore be dismissed at this stage.