United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 904_95_0611

Appeal No.EAT/904/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 November 1995

Before

HIS HONOUR JUDGE P CLARK

MRS E HART

MR R N STRAKER

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TAYLORPLAN SERVICES LIMITED          APPELLANTS

MRS L JACKSON & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR K UNDERWOOD

(Solicitor)

Messrs Underwoods

Solicitors

1 Holywell Hill

St Albans

Hertfordshire

AL1 1ER

For the Respondents MRS V CORNWELL

(2nd Respondent)


 


JUDGE CLARK: This is an appeal by the employer Taylorplan Services Ltd against the decision of the Reading Industrial Tribunal (Chairman Mr V K Leese, sitting alone) that the originating applications of four Respondents, Mrs L Jackson, Mrs V A Cornwall, Mrs A Blair and Mrs F Gunnell, should be permitted to proceed notwithstanding that they were out of time. These cases have had a chequered history. All four Respondents were originally employed by Berkshire County Council for many years as school cleaners. They complain that following a series of transfers, their employment was taken over by the Appellants in August 1993, in circumstances where their terms and conditions of employment remained the same as before.

Taking the facts as alleged in the originating application of Mrs Jackson, it is said that in May 1994 the Respondents May Bank Holiday pay was stopped.

In a memorandum to domestic staff from the Appellants Personnel Department dated 14 June 1994, the company informed staff that it obtained the cleaning contract in the belief that existing domestic staff were hired to work and be paid for term time and periodic cleaning only. Holidays and Bank Holidays were not included in their tender. Since the company had not built these costs into their tender, they now had no option but to stop payment for Bank Holidays and unworked school breaks, as the company could no longer afford them.

Unhappy with what they perceived to be a unilateral alteration to their terms and conditions of employment, the Respondents enlisted the assistance of their Trade Union, UNISON, and in particular the local branch organiser, Mr Chris Jenkinson, who was based at the Shire Hall, Reading.

The Tribunal Chairman received evidence, recorded at paragraph 6 of his Extended Reasons, that the Respondents had sent completed IT1 forms to Shire Hall for the attention of UNISON in July 1994. It is clear that those applications were never lodged at the office of Industrial Tribunals. The reason for not lodging them may have been that during July 1994, negotiations took place between the company and Mr Jenkinson, in order to resolve the dispute. We have seen a letter from Mr Mathews, the Appellants' Managing Director, to Mr Jenkinson dated 29 July 1994, which concluded:

"... we are doing everything in our power to address this situation and your members will be reimbursed in due course."

In fact, no resolution was found. In November and December 1994 the Respondents completed a second batch of forms IT1. For example, in a Form IT1 lodged at the Central Office of Industrial Tribunals on 25 November 1994, Mrs Jackson set out her complaint in Box 1 of the form thus:

"T.U.P.E. and loss of earnings over a year amounts £560."

Under the heading "Details of your complaint" in Box 10, Mrs Jackson wrote:

"T.U.P.E. was signed when this company took on our contract 1st Aug.93. We were told our terms and conditions would be the same and that if they changed anything we could take them to a Tribunal as our terms and conditions carried over from our previous employers. Now Taylorplan are not upholding T.U.P.E. conditions. We were getting 4 weeks paid holidays. Sick Pay. Bank Holiday Pay and throughout the school holidays. They are not paying any holiday money at all and cleaning during holidays and break up from school are 25 paid days a year."

At paragraph 2 of his extended reasons the Chairman records the evidence of Mr Jenkinson that in December 1994 or early January 1995, he met the affected members (including these Respondents) and concluded that their second applications were out of time. He therefore advised them that he would withdraw their applications to the Tribunal and continue to negotiate directly with the employers.

Thereafter Mr Jenkinson did withdraw these Respondents' applications and on 23 January 1995, the Tribunal dismissed those applications on withdrawal.

The Respondents apparently decided they would not accept the withdrawal by UNISON and instead put in fresh IT1s (the third set) which were received at the Central Office of Industrial Tribunals on 27 January 1995.

The Appellants then took the point that these applications were out of time, and following a Directions Hearing on 28 March, that limitation issue was heard before the Chairman on 23 June 1995.

Without identifying the precise cause of action raised in the originating applications, the Chairman proceeded to find:

(1) That the applications were clearly out of time.

(2) That he had a discretion to extend time.

(3) That the first time when the time limit was made known to the Respondents was probably early to mid January 1995.

(4) That they acted with reasonable speed when they realised that the previous applications had been withdrawn.

(5) Therefore he would extend the time limits to validate the complaint.

Against that decision the Appellants now appeal. Mr Underwood submits that the Chairman erred in law in that, having found the applications were out of time.

(1) He failed to consider whether it was reasonably practicable to present those complaints within the relevant period of 3 months. Alternatively if he did consider the point, his implicit finding that it was not reasonably practicable to do so was perverse in that two previous sets of applications had been prepared, the first of which had been in time and the Respondents had been assisted by a skilled adviser, Mr Jenkinson, throughout.

(2) He took into account an irrelevant consideration, namely that the time limit was not made known to the Respondents until early to mid January. The correct question is whether the Respondents knew or ought to have known of the time limits earlier. See Porter v Bainbridge Ltd [1978] ICR 943.

(3) His finding that the applications of January 1995 were presented within a reasonable period after the expiry of the primary 3-month limitation period was perverse in all the circumstances.

In our view, the correct starting point is to identify the cause of action. In the January 1995 forms IT1, the Respondents refer to "equal pay and conditions and discrimination". However we understand these to be complaints under the Wages Act 1986; the Respondents are complaining about unlawful deductions from their Wages under Section 5(1)(a) of the Act.

If that is so, the limitation period applicable to Wages Act claims is in point.

Section 5(2)(a) of the Act provides:

"(2) An Industrial Tribunal shall not entertain a complaint under this Section unless it is presented within the period of 3 months beginning with-

(a) In the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made,

... 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 within the relevant period of 3 months."

Section 5(3) provides:

"Where a complaint is brought in respect of-

(a) A series of deductions or payments,

... sub section (2) shall be read as referring to the last deduction or payment in the series or to the last of the payments so received (as the case may require)."

It follows that when dealing with a limitation point under the Wages Act the Tribunal must ask itself the following questions:

(1) Is this a complaint relating to one deduction or a series of deductions by the employer?

(2) If a single deduction, what was the date of the payment of wages from which the deduction was made?

(3) If a series of deductions, what was the date of the last deduction?

(4) Was the relevant date under (2), alternatively (3), above within the period of 3 months prior to the presentation of the complaint?

(5) If the answer to question (4) is in the negative, was it reasonably practicable for the complaint to be presented within the relevant 3-month period?

(6) If the answer to question (5) is in the negative, does the Tribunal consider that the complaint was nevertheless presented within a reasonable time?

It is quite apparent to this Appeal Tribunal that having failed to identify the nature of the complaint here, this Chairman failed to carry out the exercise set out above. In these circumstances we are satisfied that he fell into error. We cannot see how the Chairman could conclude that these claims were clearly out of time, without identifying the date from which time began to run, particularly if in fact the complaint was of a series of deduction. Secondly, if the complaints were out of time, we are satisfied that he failed to ask himself whether or not it was reasonably practicable to present them within the ordinary time limit. On these grounds the appeal must be allowed.

We have considered whether, having identified errors of law in this decision, we are able to reach our own conclusion on the limitation question. We regret that we are unable to do so. The necessary findings of fact have not been made.

Accordingly this case must be remitted for a fresh hearing. In view of the factual issues involved, we think it desirable that the case, which is potentially determinative of the whole matter, should be heard by a full tribunal with a different Chairman. It will be for that Tribunal to carry out the investigation outlined above and to make all necessary findings of fact to answer the questions which we have posed.