United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 466_94_0905

Appeal No. EAT/466/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th May 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MISS A MACKIE OBE

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MISS N COHEN          APPELLANT

SECRETARY OF STATE FOR EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR MICHAEL LAMBE

(of Counsel)

F.R.U.

Room 140

49-51 Bedford Row

London WC1R 4LR

For the Respondents MR MICHAEL BISHOP

(of Counsel)

Treasury Solicitor

Queen Annes Chambers

28 Broadway

London SW1H 9JS


 


MR JUSTICE MUMMERY (PRESIDENT): This an appeal against the decision of the Industrial Tribunal held at London (South) on 18th January 1994.

The Tribunal unaminously decided that the Applicant's claim for a redundancy payment failed. Her application was accordingly dismissed.

The claim was brought by Miss Cohen against the Secretary of State for Employment. The proceedings were treated at that hearing as being solely against the Secretary of State. The Tribunal did not have the benefit of any legal representation of the parties. Miss Cohen appeared in person. The Secretary of State did not attend, but instead submitted a written representation.

Miss Cohen appealed against the dismissal of her claim by Notice of Appeal served in March 1994. On the hearing of the appeal, this Tribunal has had the benefit of excellent legal submissions on each side. We are grateful to Mr Lambe of the Free Representation Unit, who appeared for Miss Cohen, and to Mr Bishop, who appeared for the Secretary of State, for their clear and concise submissions.

In order to appreciate their submissions, it is necessary to look at the history of Miss Cohens' employment, and at her proceedings to secure a redundancy payment.

Miss Cohen began to work, as a clerk, with a company called Henry West Ltd. in 1972. That company traded as Charterhouse Racing, and carried on its business from premises 36-37 Charterhouse Square, London E.C.1.. In August 1991, Henry West Ltd lost its betting licence. A company called Ellermere Ltd took over the premises in Charterhouse Square and continued the trading as Charterhouse Racing. Miss Cohen continued to work as a clerk until October 1992 when she was dismissed by reason of redundancy, Ellermere Ltd ceased business as Charterhouse Racing in December 1992.

On 10th February 1993 Miss Cohen claimed payment from the National Insurance Fund, and gave details of the employer who had made her redundant, as Henry West Ltd and stated that last day she had worked was August 1991, though she also stated that she had had a job with Ellermere Ltd from August 1991 until October 1992.

On 16th April 1993 the Redundancy Payments Service sent a letter to Miss Cohen asking for more details about Henry West Ltd. On 22nd April 1993 a letter was sent by the Redundancy Payments Service to Miss Cohen rejecting her application, saying that she should have written to her former employer or applied to an Industrial Tribunal within six months of the end of her employment. It was said that "If you write to your former employer, or apply to an Industrial Tribunal within a year of the employment ending, the Industrial Tribunal may still decide that you should receive a payment."

On 4th May 1993, the Redundancy Payments Service received a letter from Miss Cohen explaining the history of the matter. On 18th May 1993 Miss Cohen completed an IT1 which was presented on 27th May 1993 to the Industrial Tribunal.

The application states the complaint that Miss Cohen wanted the Tribunal to decide as "redundancy payment". In box 4, which asks for details of the employer or body complained against, she gave the name and address of the Secretary of State for Employment at the Redundancy Payments Service. In the section lower down, which asks for details of the place of work, if different from the above address, Miss Cohen stated the name of Henry West Ltd trading as Charterhouse Racing, and the address was given 36/37 Charterhouse Square, London E.C.1.. Then in the box for telephone number it stated `business closed'.

On the second page of the IT1, Miss Cohen gave details of the dates of employment as beginning on February 1972 and ending on August 1991, but in box 9 stated the date of the action she was complaining about as October 1992.

Finally, it is important to read in full the details of Miss Cohen's complaint in box 10 of the IT1:

"In October 1992 I was made unemployed after having served 20 years with the company.

In August 1991 "Henry West Ltd" had to cease trading due to owing money.

Another company called "Ellermere Ltd" took over the premises, and the business continued in exactly the same way. Still trading as "Charterhouse Racing" which "West Ltd" has been doing.

I was working there continuously. I had no idea that this legal change by management could ever deprive me of any redundancy due to me if ever I lost my job. My complaint is that the Redundancy Office is saying they will not pay me because I was out of time with my claim. But I am not. I put my claim in, in Feb 1993 and I lost my job in Oct 1992.

Please could you listen to my case."

After the presentation of that complaint, the Redundancy Payments Service asked Miss Cohen on 25th June 1993 for more information. They asked her whether she had applied to Ellermere Ltd for redundancy payment. Miss Cohen replied on 27th June 1993, explaining she could not make a claim to Ellermere Ltd because she had only worked for them for four months. On 17th August 1993 the Secretary of State wrote to Miss Cohen advising her that her claim against Henry West Ltd was time-barred, but she might have a claim against Ellermere Ltd. She was advised to write to Ellermere Ltd as soon as possible within the twelve months of being made redundant. She was advised that she could make a claim to the Secretary of State using the form RP21 giving details of her employment with Ellermere Ltd. In mid-September 1993 Miss Cohen read this letter for this first time. She had been ill in hospital. On 2nd October 1993 the twelve months since her redundancy from her position with Ellermere Ltd expired.

The hearing of the case took place on 18th January 1994 and the Tribunal notified that the parties of the extended reasons on 25th February 1994.

The Tribunal, having referred to Miss Cohen presenting her own case, and referring to a bundle of documents considered by them, stated the issue before them as follows, (I read paragraph 2 of the decision):

"2. The Tribunal has to consider whether the Applicant's claim to the Secretary of State for a redundancy payment against the company Henry West Limited who are no longer trading was submitted within the time limit. Further the Tribunal has to consider whether a claim was made to Ellermere Limited and if so whether that claim was submitted within the time limit."

The Tribunal set out the findings of fact. It is unnecessary to refer to all of those, I have already summarised the most important facts in the chronology. It is, however, worth noting that the Tribunal found as a fact that, after Miss Cohen was dismissed from Ellermere Ltd, she was told by the manager of that company that she could not claim redundancy against Ellermere Ltd as she had not worked for them for a sufficient time. Accordingly, she applied to the Secretary of State for a claim for payment from the National Insurance Fund on 10th February 1993.

The Tribunal then referred to the law, which we shall return to in a moment, in Section 101(1) and Section 106 of the Employment Protection (Consolidation) Act 1978. The Tribunal recorded that Miss Cohen had not claimed against Henry West Ltd within six months of her dismissal because she considered that she was being employed by the new company in exactly the same position and that her rights would continue. However, when she was finally made redundant in October 1992 she was told by the manager that she could not claim against Ellermere Ltd as she had only got four months service with that Company. Accordingly, she sought to revert back to her original company to claim redundancy, by which time it was far too late.

The Tribunal then said in a crucial part of the decision, in paragraph 7 and 8 as follows:

"7. ... the tribunal are able to consider the Applicant's claim for a further six months after the initial six months, if she had either a) written to Ellermere Limited at their last known trading address, claiming a redundancy payment or b) referred the matter to an Industrial Tribunal during that time or c) made a claim to the Industrial Tribunal for unfair dismissal."

"8. However, the Applicant did none of these things despite being invited to do so by the Department of Employment in their letter to her of 17 August 1993 which was within the time limits of Section 101(2)."

Mr Lambe, on behalf of Miss Cohen, submitted that, on the proper construction of Section 101(1)(c) and Section 101(2)(b), the Tribunal had erred in law in its approach to Miss Cohen's claim. The errors of law are contained in the last sentence of paragraph 2 of the decision and in paragraph 8 of the decision. In a nutshell, Mr Lambe's main point was that the Tribunal erred in law in saying that Miss Cohen did none of the things referred to paragraph 7. She had in fact done one of those things: that was to refer the matter to an Industrial Tribunal within the time allowed in Section 101(2).

Section 101 is concerned with claims for redundancy payments. The right to those payments is conferred by Section 81. Section 101 is concerned with certain time limits as follows:

"(1) Notwithstanding anything in the preceding provision of this Part, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date-

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to an industrial tribunal, or

(d) a complaint relating to his dismissal has been presented by the employee under section 67."

I pause there to note that the crucial provision for the purposes of Mr Lambe's argument is 101(1)(c). The payment had not been agreed and paid within (a). Miss Cohen had not made a claim for the payment by notice in writing to her employer within (b) and the complaint relating to dismissal had not been presented by the employee under section 67.

"(2) An employee shall not by virtue of subsection (1) lose his right to a redundancy payment if, during the period of six months immediately following the period mentioned in that subsection, the employee-

(a) makes such a claim as is referred to in paragraph (b) of that subsection,

(b) refers to a tribunal such a question as is referred to in paragraph (c) of that subsection, or

(c) makes such a complaint as is referred to in paragraph (d) of that subsection,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment having regard to the reason shown by the employee for his failure to take any such step as is referred to in paragraph (a), (b) or (c) of this subsection within the period mentioned in subsection (1), and to all the other relevant circumstances."

The only provision relevant to Mr Lambe's argument is Section 101(2)(b). No claim such as referred to in 101(1)(b) had been made and no complaint such as referred to in Section 101(1)(d) had been made.

Mr Lambe's short point was that, in presenting a complaint, and in referring to the Industrial Tribunal the question of her right as an employee to the redundancy payment on 27th May 1993, in respect of her being made redundant in the previous October, Miss Cohen had done one of the things mentioned in Section 101(2). This meant that she had not lost her right to a redundancy payment. On this point Mr Lambe referred to the provision of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. First Rule 1, which governs the form of an originating application provides that:

"1.-(1) Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application. which shall be in writing and shall set out-

(a) the name and address of the applicant and, if different an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;

(b) the names and addresses of the person or persons against whom relief is sought; and

(c) the grounds, with particulars thereof, on which relief is sought."

He also referred to Rule 17 which deals with a Joinder of parties and provides in subrule (1):

"17.-(1) A tribunal may at any time, on the application of any person made by notice of the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential as it considers necessary."

Finally, reference should be made to one authority which concerns with the approach of Industrial Tribunals and of this Tribunal to the form of an originating application. That is the case of Burns International Security Services (U.K.) Ltd v. Butt [1983] ICR 547. In the judgment of this Tribunal given by Neill J at page 550 F, this was said:

"We have come to the firm conclusion on that facts of the present case that the absence of these particulars did not render the originating application a nullity. In reaching this conclusion we take as our starting points the words of Fox L.J. in Druid Development Co. (Bingley) Ltd v. Kay (1982) 44P. & C.R. 76, 81, where he said in relation to applications by landlords for the registration of fair rent under the Rent Act 1968:

"Applications under the Rent Act 1968 and its successors for the determination of a fair rent were and are often made by lay persons without professional assistance, and I think that a technical approach to the requirements as to the contents of the application forms is not to be encouraged in relation to them."

It seems to us that in the field of industrial relations where application forms are frequently completed by individual employees without professional assistance a technical approach is particularly inappropriate. We have also been assisted by the decision of the Court of Appeal in Howard v. Secretary of State for the Environment [1975] QB 235 (a case involving a planning appeal where the relevant stature provided that the notice of appeal should be in writing and should indicate the grounds of the appeal and state the facts on which it was based) and by the decision of this appeal tribunal in Seldun Transport Services Ltd v Baker [1978] ICR 1035 where consideration was given to the requirements as to a respondent's notice of appearance contained in Rule 3 of the Rules of 1974. It is to be remembered that an industrial tribunal has power under rule 4(1)(a)(i) of the Rules of 1980 to require any party to furnish further particulars of the grounds on which he relies and of any facts and contentions relevant thereto. It is also remembered that the requirements as to the addresses of the parties in rule 1(1) have been treated as sufficiently complied with if the parties were identifiable: see Smith v. Automobile Pty. Ltd [1973] ICR 306 (address of respondents omitted) and Gosport Working Men's and Trade Union Club Ltd. v. Taylor (1978) 13 ITR 321 (address of applicants omitted).

It was pointed out in Cocking v. Sandhurst (Stationers) Ltd. [1974] ICR 650 that the rules did not require that the complaint as presented should be free of all defects or should be in the form in which it finally came before the tribunal for adjudication. The purpose of the rules is to ensure that the parties know the nature of the respective cases which are made against them. The present rules give considerable powers to the industrial tribunal to control the conduct of the proceedings both before and at the hearing. We are satisfied that the originating application which the applicant presented in December 1981 constituted a complaint that he had been unfairly dismissed and was presented within the statutory time limit. The industrial tribunal therefore had jurisdiction under section 67 of the Act of 1978."

On the basis of those statutory provisions and in the light of the guidance provided by the Employment Appeal Tribunal in the case of Burns v. Butt, we have reached a conclusion that Mr Lambe's submissions on this Appeal are correct, and should be accepted. Mr Lambe submitted that, looking at the originating application as a whole, it was clear that what Miss Cohen was complaining of was dismissal by reason of redundancy in October 1992 by her then employer, Ellermere Ltd. It was clear by virtue of the relevant statutory provisions and the TUPE Regulation 1981 that at the date when she was dismissed, she had twenty years continuous reckonable service with Ellermere Ltd. The trading address of Ellermere Ltd was provided in the form. The relief sought was a redundancy payment, and, in those circumstances, the originating application satisfied the requirements of an originating application referring a matter to a tribunal under Rule 1 of the Rules. It was, nonetheless, an originating application complying with those rules, even though it included the Secretary of State as a party. It was clear from the application, read as a whole, that it was a claim for a redundancy payment in respect of a dismissal by Ellermere Ltd.

Mr Lambe then developed the argument in relation to Section 101(2)(b). He accepted that Miss Cohen could not succeed under Section 101(1), but she had complied with Section 101(2)(b). There was statutory bar to a complainant simultaneously claiming a redundancy payment from an Industrial Tribunal by way of service of an originating application, and seeking payment directly from the National Insurance Fund by service of the form RP21. The Tribunal erred in law in its conclusion that Miss Cohen had not referred to the Tribunal by her originating application such a question as is referred to in Section 101(1)(c). That subsection refers to a question as to the right of the employee to the payment. That is the redundancy payment. She had referred that matter to an Industrial Tribunal by the originating application presented on 27th June 1993, that was within the time limit prescribed by Section 101(2) and the Tribunal had therefore erred in law in its conclusion in paragraph 8 of the extended reasons.

Mr Bishop sought to argue against this conclusion. He put before us an argument which we are unable to accept is correct in its application to the facts of this case. Mr Bishop argued first that the Secretary of State could only make payments pursuant to Section 106 of the 1978 Act. He referred to subsection (1) of that section which says:

"(1) Where an employee claims that his employer is liable to pay him an employer's payment, and either-

(a) that the employee has taken all reasonable steps (other than legal proceedings) to recover the payment from the employer and that the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or

(b) that the employer is insolvent and that the whole or part payment remains unpaid,

the employee may apply to the Secretary of State for a payment under this section."

He also referred to subsection (7) which provides that:

"(7) In this section "legal proceedings" does not include any proceedings before an industrial tribunal, but includes any proceedings to enforce a decision or award of an industrial tribunal."

Miss Cohen, Mr Bishop argued, failed within six months from the time she ceased to work to claim a redundancy payment from her employer. Therefore she had failed to comply with Section 101(1). Section 101(2) allows some discretion to the Industrial Tribunal, if there is a delay of no more than six months beyond the original limitation period, as long as the applicant does one of three things which are mentioned in that subsection. He pointed out that Miss Cohen did not contend that she complied with either Section 101(2)(a) or (c). The crucial question was whether she had complied with (b). Miss Cohen's argument was that the application to the Industrial Tribunal presented on 27th May 1993 whereby she sought an award from the Respondents complied with that statute. The question, however, that must be referred is the right of the employee to the redundancy payment. The only right that the employee has in this situation is a right against an employer. She never made a claim against the employer by notice in writing. Her originating application sought redress only from the Secretary of State. She had no right to seek redress against him without first making a claim against the employer. That she had not done. Her originating application should have referred to Ellermere Ltd in box 4. Her complaint in the application is against the Secretary of State for failing to pay a redundancy payment. It is not a complaint that her employers have failed to make the payment. She had been clearly informed by the Secretary of State what she must do, if she was in a position to obtain a redundancy payment. She had not followed that advice. She had issued the application to the Industrial Tribunal. A further letter had been written advising her that she may have a claim against Ellermere Ltd, and advising her to make a claim against them. She had failed to do that. The Tribunal were therefore correct to exercise their discretion in the light of the advice given by the Secretary of State to the applicant, telling her what to do.

We are unable to accept those submissions for this reason. In our view, the originating application satisfies the requirements of Section 101(2)(b). She referred to the Industrial Tribunal a question as to the right that she had to the payment. She had done so in such a way as to make it clear that her claim was in respect of a dismissal for redundancy by Ellermere Ltd. It would be an over-technical approach to this question to regard this originating application as something other than an originating application raising the right to her payment, simply because it contained a joinder of the Secretary of State For Employment before the reasonable steps referred to in Section 106(1)(a) had been taken. In our view, the point taken by the Secretary of State in this appeal really amounts to saying that, his mis-joinder to these proceedings makes the originating application one which falls outside Section 101(2)(b). In our view, and in the light of Burns, that would not be the correct approach of the Tribunal to take to the question, whether Miss Cohen had satisfied the requirement of Section 101(2)(b).

In those circumstances, we will allow the appeal. Mr Bishop had taken the point in his argument that it would not be appropriate to an Industrial Tribunal (and a fortiori this Tribunal) to exercise the powers under Rule 17 in order to join Ellermere Ltd as a party. He argued that to do that would be to change fundamentally the nature of the proceedings. The proceedings were started against the Secretary of State for a liability under Section 106. The amendment would be changing the proceedings to those of a different kind, namely a claim to a redundancy payment against an employer, based on Section 81. We do not accept that submission. In our view, whichever way the claim is put, against whichever respondent, it is clear that what Miss Cohen is claiming is a redundancy payment from whoever is liable to pay it. Ellermere Ltd are liable to pay it, if they were employers at the relevant time. If they do not pay it, and Miss Cohen has taken reasonable steps to obtain payment, then the Secretary of State will be liable.

We shall allow this appeal, and make an order joining Ellermere Ltd as a Respondent to the proceedings, striking out the Secretary of State as a party to the proceedings and remitting the matters to the Industrial Tribunal to adjudicate on Miss Cohen's claim against Ellermere Ltd. If she establishes that claim, and she is then able to bring her case within Section 106(1), she will not be debarred from making that claim by reason of inability to satisfy Section 101(2)(b).

We therefore propose to allow the Appeal, make the amendments stated and remit the matter to the Industrial Tribunal.