United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 935_94_2507

Appeal No. EAT/935/94


 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 July 1995

Before

THE HONOURABLE MR JUSTICE TUCKEY

MR J D DALY

MR J H GALBRAITH CB

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MR D HOGAN          APPELLANT

ACP HEAVY FABRICATIONS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P OLDHAM

(of Counsel)

Messrs Lawson West

45 Long Street

Wigston Magna

Leicester

LE18 2AJ

For the Respondents MR PUSHPINDER SAINI

(of Counsel)

Messrs Spearing

Waite

41 Friar Lane

Leicester

LE1 5RB


 


MR JUSTICE TUCKEY: This case has a long history and in view of the decision which we have reached, we regret to say that it is not yet at an end. The Applicant, Mr Hogan was employed by the Respondents, A.C.P. Heavy Fabrications, as a Heavy Goods Vehicle Driver from February 1989.

On 29 March 1991 for business reasons, the employers felt it necessary to notify Mr Hogan of changes to his conditions of employment which, among other things would have resulted (if he had accepted them) in a significant reduction in his weekly wage. He was presented with the new terms on the basis that "he could take them or leave them". He understandably became upset, walked out of the meeting and later, having drowned his sorrows, found the Managing Director and other Directors of the Respondent Company in a pub where he proceeded to abuse them in a fairly unpleasant way.

A week later he returned to the Respondents' premises after the Easter break, but was told that he was dismissed and was given a letter dated 5 April 1991 dismissing him. He had, by then, consulted his union and on 16 June made an application on the form IT1, complaining that he had been unfairly dismissed.

Unfortunately, no doubt as a result of a slip of the pen, in the box which required him to give the dates of his employment, he said correctly that it had started on 11 February 1989, but that it had ended on 8 April 1989. He should have put "8 April 1991", since that was the date upon which he received, or believed he received, the letter of dismissal.

The Tribunal therefore received an application from an Applicant which appeared to show that he had only worked for something less than two months. They therefore, wrote a letter dated 20 June (a copy of which has only just been obtained). It says, in the terms of Schedule 1 to the Industrial Tribunal Rules 1985, that the Secretary was of the opinion that, on the facts stated in the application, the Tribunal would have no power to give a decision because the Applicant did not have at least two years of continuous employment. The letter went on to say:

"3. In view of the above, the Secretary has directed me to inform you that your application will not be registered and will not proceed to a tribunal unless you inform the Secretary in writing that you do wish to proceed."

When we say in terms of the rules, we refer specifically to paragraph 1 subparagraphs (2) and (3) of Schedule 1.

It is clear that non-registration of the application would mean that the Office of the Tribunals would not serve notice on the Respondent to the proceedings and so, in effect unless the Applicant does say he wants to proceed, the proceedings would go nowhere. They would not be registered and therefore they would not be served; therefore they could not proceed to any sort of hearing.

The letter was sent to the Trade Union representative, whose name was given on the IT1. On receipt of the letter, a further IT1 was submitted. This time it asked for redundancy as well as unfair dismissal and it was not in identical terms to the first application. Among other things it said that the employment ended on 30 March 1991. It was dated 1 July 1991 and received on 2 July 1991.

What happened to the first IT1 on receipt of the second is not entirely clear except that each of the applications were given the same case and reference number.

No question of either application being out of time or any other point under the rules on these applications was taken up immediately by the Respondents. What happened is that the complaint by Mr Hogan proceeded to a hearing before the Industrial Tribunal in Leicester on 13 February 1992 at which the Applicant, Mr Hogan appeared in person and the Respondents were represented by their Works Manager. Having heard evidence, the Tribunal on that occasion found that Mr Hogan had not been constructively dismissed when he was first confronted with the varied terms, but had been dismissed the following Friday when he had gone back to the premises and received the letter of dismissal. They therefore took into account the incident in the pub which, on their finding as to the date of dismissal, had occurred during the course of Mr Hogan's employment. They reduced the compensation to which he was entitled, after finding that he was unfairly dismissed by 80% on the basis that he had, by his conduct, contributed to that dismissal.

He appealed to this Tribunal. The appeal came before His Honour Judge Hull QC and two members on 15 April 1994. The appeal was allowed. The grounds upon which it was allowed do not need to be elaborated but in short, the Tribunal concluded that when asking themselves the question "Was Mr Hogan dismissed at the time of the original meeting or was he dismissed at the later date?" they misdirected themselves in law.

So back it went to the Industrial Tribunal. By this time however, Counsel had become involved on both sides and as the Judgment of this Appeal Tribunal records, the Respondents had realised that they had an argument that the first IT1 was a nullity because nothing had happened in response to the Secretary of the Tribunal's letter and the second IT1 was out of time because, on the basis that the Applicant was dismissed on 29 March, his complaint should have been with the Tribunal by 29 June, and it was not.

So with those additional points in their armoury, the Respondents represented by Counsel appeared at the Industrial Tribunal in Leicester on 29 July 1994. Again the Applicant was in person. The Tribunal found for the Respondents on the two new points. They found that the first application was, to use their word "irregular"; they found that the second application being different in terms could not be treated as an amendment or addition to the first application; that it was out of time and that it was not a case in which time could be extended. Accordingly, they dismissed the Applicant's complaints altogether. Mr Hogan now appeals to this Tribunal for the second time.

A number of points are taken on his behalf, but we have heard argument on both sides on only one of those points. We have decided that this point is determinative of the appeal and so these reasons are confined to dealing with that point and that point alone.

The point is simply this, that after the letter of 20 June referring to the need to give notice to proceed with the first application, the Tribunal received the second application. They assigned the same references to both applications and it is clear that both applications proceeded from then on to be dealt with by the Tribunal. So it is argued, that the second application was the notice (although it does not say so in terms) which the rule required to keep the first application alive.

Alternatively, as the rules do not limit the time in which any such notice has to be given by the time of the second hearing before the Industrial Tribunal at the very latest, when undoubtedly the first application did proceed and was heard and was ruled on, the situation was one where notice must be treated as having been given in accordance with the rules.

So, it is submitted, on either of these bases it cannot be said that the first application died a death. It was proceeded with. Certainly, there is no basis for suggesting that it was "irregular" as the Tribunal thought. It remained alive. It was treated as part of the case which proceeded to be heard. It cannot be said that it was a nullity or that it had disappeared in a way which prevented Mr Hogan from proceeding with it as he attempted to do.

We accept these submissions. Mr Saini, Counsel for the Respondents, sought valiantly to argue that the fact that the Tribunal assigned a number to it does not mean that they registered it. There is nothing in the documents to show that in fact the Tribunal ever registered this application. Their letter had said they would not unless they received a notice and as they did not, it was a nullity. But, as the point developed before us Mr Saini recognised that, as the first application was proceeded with at the second hearing before the Industrial Tribunal, there was some difficulty in saying that it had gone away altogether. However in a very realistic concession at the end of his argument he accepted that even if it was still (so to speak) in a state of limbo, it would still be open to the Applicant to revive it now because there is no time limit laid down in the rules for the giving of notice so it could be brought back to the Industrial Tribunal by giving notice today. This concession illustrates we believe that in reality what happened here was that on receipt of the second application the Tribunal did treat the first application as being one which would proceed and in fact it did proceed. It went through one hearing without objection and it was proceeded with at the second hearing so at no stage, after the second application was received, could it be said to be or have become a nullity. On this basis we think it would be right to allow this appeal.

We realise of course, that the consequence of our decision is that the case must go back, if it cannot be settled, for a third time, before a differently constituted Tribunal. This is something which concerns us, but we can see no option if, as we say, the case is not settled. We very much hope that it can be settled and have information indicated before giving this judgment our view that flawed though this legal reasoning may have been the first Tribunal reached the right conclusion as to what compensation Mr Hogan should receive. We expressed this view in the hope that it might assist parties to settle. We have repeated it in this judgment so that it is there for the record. We make it clear however, that in doing so we do not intend in any way to dictate to or bind any Tribunal who have to deal with this case in future. We hope this is not necessary but if it is we make it clear that what we say should not be taken as any indication of what their decision should be. They have to reconsider the case on the evidence presented to them.

For the reasons we have given this appeal will be allowed and remitted for a further rehearing before a differently constituted Industrial Tribunal, if necessary.