United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 845_94_1201

Appeal No. EAT/845/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 January 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T S BATHO

MR P DAWSON OBE

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MR R C DOEGAR          APPELLANT

SECRETARY OF STATE FOR EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr R C Doegar against the decision of the Industrial Tribunal held at Leeds on 27 June 1994.

In the extended reasons notified to the parties on 20 July 1994 the Tribunal explained why they had reached the unanimous decision that they had no jurisdiction and that Mr Doegar's claim was out of time. Mr Doegar represented himself before the Tribunal. He appealed by a Notice of Appeal received on 1 September 1994. He has conducted his appeal in person today.

Before we deal with the arguments raised on the appeal we should, for the purposes of the record, state two short matters. First, having regard to medical evidence relating to Mr Doegar's state of health. We permitted him to conduct the case from his chair. Secondly, we refused an application that he made for the proceedings this morning to be mechanically recorded. Mr Doegar made that application because, as appears from numerous communications which he has made with this Tribunal, he is concerned that certain matters have not been accurately recorded and there have been misunderstandings. He wished to have a recording with a view to a transcript, so that he had a full and accurate record of what was said this morning. We refused the application on the grounds that it is not normal to have a recording or a transcript of legal arguments, as distinct from evidence, and we would be involved this morning only in hearing legal arguments. In our view, the expense of making the recording and producing a transcript was not justified on the grounds advanced by Mr Doegar.

We then proceeded to hear his arguments in this context; that the purpose of a preliminary hearing is to decide whether the appeal raises an arguable point of law. We have to be satisfied about that, because we only have jurisdiction to hear appeals on points of law. If a case is not arguable on a legal point, no purpose is served by having a full hearing. The Notice of Appeal gives little clue as to what are the real grounds for quarrelling with the decision of the Tribunal. Before going to that and to the arguments of Mr Doegar I should sketch in some of the background to the proceedings.

Mr Doegar claimed to be an employee of the Company called Sheppee Ltd which went into administrative receivership in December 1992. The administrative receiver dismissed Mr Doegar by letter which he received on 11 December 1992. The claim which has given rise to these proceedings is not made against the Company or the receiver but against the Secretary of State for Employment under sections 122 and 124 of the Employment Protection (Consolidation) Act 1978. The Secretary of State admitted for the purposes of the section that the Company was insolvent but made no further admissions and took the point that the application to the Industrial Tribunal was out of time. The relevant dates are these. In February 1993 Mr Doegar applied for payments under section 122 and 124 from the Secretary of State. The payments claimed by him were of two kinds; arrears of salary and payment in lieu of notice. He did not make a claim for a redundancy payment.

The Secretary of State received the claim and notified Mr Doegar of his decision by the letter of 15 June 1993, that is the most crucial document in this matter. I shall therefore read it in full. The letter was received by Mr Doegar on 18 June 1993 and says:

"Dear Mr Doegar,

EMPLOYMENT PROTECTION (CONSOLIDATION) ACT 1978

EMPLOYER: SHEPPEE LTD

Thank you for your application for payment from the Insurance Fund. However the Department must refuse your application because it does not regard you as having employee status for the following reasons:-

1) You were a shareholder of the company.

2) You received no salary from September 1st 1992

3) You did not pay Class 1 national insurance contributions.

If you disagree with this decision you have the right to appeal to an Industrial Tribunal naming the Secretary of State as respondent. The time limit on such appeals are six months from the date your employment ended for Redundancy claims and three months from the date of this letter for all other claims."

The preliminary point as to the jurisdiction of the Industrial Tribunal with regard to Mr Doegar's claims arose, because he did not make his application to the Industrial Tribunal until 2 December 1993 which is well outside the three month limit. The three month limit referred to in the last paragraph of the letter of 15 June is based on section 124(1) of the 1978 Act which provides:

"A person who has applied for a payment under section 122 may, within the period of three months beginning with the date on which the decision of the Secretary of State on that application was communicated to him or, if that is not reasonably practicable, within such further period as is reasonable, present a complaint to an industrial tribunal that -

(a) the Secretary of State has failed to make any such payment; or

(b) any such payment made by the Secretary of State is less than the amount which should have been paid."

Having regard to that section, it was the duty of the Industrial Tribunal to decide as a preliminary matter whether it had jurisdiction to entertain Mr Doegar's claim. The Tribunal concluded that it did not have jurisdiction. It set out the dates leading up to the letter of 15 June. It referred to correspondence which had taken place after that. It referred to a letter that Mr Doegar had written to the Department on 22 June asking for information as to the application to the Industrial Tribunal and for relevant forms and documentation. He received no reply to the letter. The Tribunal recorded that Mr Doegar's account was that he was not sure of his rights as to whether he could or should claim redundancy and other monies; moreover, it did not seem equitable that, if the Employment Department delayed in replying to his letter seeking monies from them, by their delay they should make him too late to submit an appeal to the Industrial Tribunal.

Mr Doegar had solicitors at that time. He asked them in July to raise the matter formally with the Redundancy Payment Office. Some file notes were produced from the solicitor's file, but the Tribunal found that they did not assist in their decision; one document was of a telephone conversation with the Department. The other was undated and a note of a telephone conversation with Mr Doegar. He made a diary note as a result of which he spoke to his solicitors on 2 December. Following that he immediately faxed the letter to the Industrial Tribunal, which constitutes his application.

In those circumstances the Tribunal unanimously decided that it was reasonably practicable for Mr Doegar to present his complaint to the Tribunal within the three month time limit. The reason the Tribunal came to that decision was that the advice relating to time limits for claims, other than for redundancy, in the last paragraph of the letter of 15 June, was both correct and clear. They rejected Mr Doegar's submission that he had been misled as to the time limit. What misleading statements there were in the letter related to redundancy claims. They were not relevant, since he was not making a redundancy claim. That was not the claim that was rejected.

The Tribunal decided that it was reasonably practicable for Mr Doegar to have presented his complaint to the Tribunal within three months from receiving the letter of 15 June. He did not do so. In those circumstances the Tribunal had no jurisdiction to entertain his complaint.

Mr Doegar has referred to a number of documents and has developed two main submissions. The first submission is that the Tribunal erred in law in coming to the conclusion that it was reasonably practicable for him to present his complaint in time. He repeated to us the arguments that he had clearly advanced to the Tribunal; that he was misled by the reference in the last paragraph of the letter to a time limit of six months from the date of his employment for redundancy claims. He submitted that the Tribunal should have come to the decision he had been misled by the Respondent whom he was suing about his right to apply to the Industrial Tribunal. In those circumstances his appeal ought to be allowed.

He developed a second line of argument, that the Tribunal had not acted reasonably in accordance with the rules of natural justice and of fairness. He asserted, correctly, that he had a right to have his case heard by an unbiased Tribunal. He complained in this case, having referred to Regulation 8 of the 1985 Industrial Tribunals Procedure Regulations, now Regulation 9 of the 1993 Regulations, that the procedure adopted by the Tribunal in this case was not in accordance with the Rules of natural justice. What the Tribunal had done was to receive from the Secretary of State written submissions which dealt with the substantive merits of the case, as well as taking the point that the application was out of time. Mr Doegar's complaint was that the Tribunal should, in those circumstances, have exercised its discretion to allow him to make representations on the substantive merits of the case. Mr Doegar put it this way, that the Tribunal had exercised its discretions unjudicially in excluding him from arguing his case in full, having received written representations from the Secretary of State on his case in full.

This argument is a misunderstanding of the legal position before the Tribunal. The Tribunal had no discretion to hear arguments on the substantive merits of the case from either side, until it had first established whether it had jurisdiction. It had no jurisdiction if the application to the Tribunal was presented out of time, unless it was satisfied that it was not reasonably practicable to bring the application within time. As we have already explained, the Tribunal had good reasons for coming to the conclusion that it was reasonably practicable to present the application within time.

In those circumstances the Tribunal did not, in fact, consider the substantive merits of the claim to arrears of pay and payment in lieu of notice from either side. It had no jurisdiction to do so. In our view, there has been no wrongful or unreasonable exercise by the Tribunal of its powers under the Rules. It was perfectly correct in refusing to proceed further with the case having come to the conclusion it did, that the application to the Tribunal was out of time.

There are a number of other documents which Mr Doegar has referred to which are more relevant to the merits of his claim than to the reasons why he did not bring it before the Industrial Tribunal within the three month time limit. In those circumstances, it is not relevant to refer to them in this decision.

For the reasons stated Mr Doegar has not satisfied us that he has an arguable point of law on this appeal. The decision of the Tribunal was one of fact and made on a correct self-direction as to the legal time limits contained in section 124(1) of the 1978 Act. For those reasons this appeal will be dismissed.