United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 963_95_1411

Appeal No. EAT/963/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th November 1995

Judgment delivered on 11th January 1996

HIS HONOUR JUDGE P CLARK

MRS T A MARSLAND

MR J A SCOULLER

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STRACHAN AND HENSHAW LTD          APPELLANTS

A E COSTER AND OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR GEORGE DYSON

(Solicitor)

Messrs Burges Salmon

Narrow Quay House

Prince Street

Bristol

BS1 4AH

For the Respondents MR ANDREW MAYNARD

(Solicitor)

Messrs Andrew Maynard

& Co

11 Manvers Street

Bath

BA1 1JQ


 


JUDGE CLARK: This is an appeal by the employer against a decision of the full Industrial Tribunal sitting at Bristol on 28th July 1995 on a preliminary issue, namely whether the Originating Applications of the three employee Respondents were time-barred. The unanimous decision of the Tribunal was that it was not in all the circumstances reasonably practicable for the applicants to present their complaints to the Tribunal within the statutory time limit. The applications were therefore allowed.

The appeal is concerned with the provisions of Section 67(2) of the Employment Protection (Consolidation) Act 1978 which reads:

"(2) ... 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."

The factual background, as found by the Industrial Tribunal, is as follows: all three Respondents were employed on the permanent night shift at the Appellant's factory premises. Each was a member of a trade union (AEEU) which was recognised by the employer.

In October/November 1994 the company entered into consultations with the union over proposals to terminate the night shift, with consequent redundancies. The night shift was to be closed on 24th March 1995.

Each of the three Respondents was selected for redundancy and their employment terminated on 11th November 1994. No complaint of unfair dismissal was presented by any of the Respondents at that time.

On 13th May 1995 Mr Coster attended a rugby match. There he met a friend who was then still employed by the company. That friend told him that far from closing, the night shift was still being operated and was busier than before. Mr Coster passed on this information to his fellow Respondents, Messrs Summers and Bartlett, and all three took legal advice from a solicitor, Mr Maynard. Mr Maynard drafted Forms IT1 for all three Respondents, and those Originating Applications were promptly despatched to the Central Office of Tribunals arriving on 19th May 1995.

In their Originating Applications each Respondent contended that he accepted redundancy as the genuine reason for his dismissal on 11th November 1994. They accepted managements announcement that the night shift would end on 24th March 1995. However, the information received via Mr Costers' fellow rugby enthusiast now led them to believe that it was not a genuine redundancy dismissal. In addition and in the alternative, each complained of unfair selection for redundancy and a failure by the employer to offer alternative employment.

Before the Industrial Tribunal the Respondents gave evidence and so did two management witnesses, Messrs Ranson and Kenway.

Having heard the witnesses the Industrial Tribunal purported to find as fact that in November 1994 there were genuine concerns in the company with regard to the downturn in business and the financial viability of that part of the company's business in which the Respondents were employed, but that by February or March 1995 business was picking up and two substantial contracts were about to be or had been obtained. As a result of those contracts the decision was taken to continue with the night shift.

Against that background the Tribunal expressed their conclusion in paragraph 9 of their reasons in these terms:

"9 We are satisfied and find that it was not, in all the circumstances, reasonably practicable within the meaning of s.67(2) of the Act for the applicants to present their complaints to the Tribunal within the statutory time limit. The applications are therefore allowed."

In this appeal Mr Dyson submits:

(1) that the Respondents' complaints of unfair dismissal contain two separate grounds of complaint. First, that there was not in fact a genuine redundancy situation at the time of their dismissal ["the reasons complaint"]. Secondly, in the alternative, that the Employer acted unreasonably in selecting each of Respondent for dismissal, and failed to take adequate steps to look for alternative employment. ["the selection complaint"]

(2) that on any view the selection complaint was out of time, and it was reasonably practicable to present such a complaint within time.

(3) that as to the reasons complaint, although the tribunal found that the Respondents Coster and Bartlett did not know that the night shift was still operating before 13th May 1995, the Tribunal went on to find in paragraphs 6 and 7 of their extended reasons that there was a genuine redundancy at the date of dismissal on 11th November 1994. Accordingly the conclusion that the matter should be allowed to proceed notwithstanding the ordinary time limits was perverse, since the only conclusion to be reached at a full hearing of their complaints was that the reason for dismissal was redundancy, and therefore those complaints must be dismissed, since the selection complaint was out of time and could not be pursued at the full hearing.

(4) that in the case of Mr Summers he had been aware that the night shift was still operating before Mr Coster spoke to his former colleague at the rugby match on 13th May 1995.

(5) this Industrial Tribunal wholly failed to ask itself the further question under Section 67(2) namely, if it was not reasonably practicable to present the claim within time were each of these complaints presented within a reasonable period after expiry of the primary three month limitation period? In this respect he draws a distinction between the cases of Coster and Bartlett with that of Summers, on the factual basis mentioned in his fourth submission set out above.

In response, Mr Maynard submits:

(1) that the Tribunal considered the issue of reasonable practicability and resolved it in favour of the Respondents.

(2) that each ground of complaint should be considered separately and if in respect of any one ground the Tribunal finds that it was not reasonably practicable to present it within time, then the whole complaint can proceed to a full hearing.

(3) that the Tribunal went too far in making the findings set out in paragraph 6 and 7 of their reasons. If and insofar as those findings go to the substantive issue and not the preliminary jurisdictional issue of limitation, then they should be disregarded as being unnecessary for the resolution of the issue before the Tribunal.

Finally, he accepted that the Tribunal's reasons do not deal with the "further reasonable period" question, and that the reasons are defective in that respect.

We indicated at the close of oral argument that we would allow this appeal and remit the matter to a fresh, full Industrial Tribunal. We now give our reasons for that decision.

(1) Section 67(2) provides for a three-stage enquiry by the Industrial Tribunal:

(a) was the complaint presented within three months beginning with the effective date of termination? If not,

(b) was it reasonably practicable to present the complaint before the end of that three month period? If not,

(c) does the Tribunal consider that the complaint was presented within a reasonable period after the expiry of the initial three month period?

(2) Rule 10(3) of the 1993 Tribunal Rules of Procedure (SI. 1993/2687) provide that:

"(3) The tribunal shall give reasons for its decision in a document signed by the chairman."

The requirement is mandatory. Parties must know from the reasons given why they have won or lost. UCATT v Brain [1981] ICR 542. Thus, for example, where the issue of contributory fault has been raised at the hearing of a complaint of unfair dismissal, the Tribunal must record its findings on that issue and give reasons for such finding Portsea Island Mutual Co-operative Society Ltd v Rees [1980] ICR 260.

In this case, given the varying dates of knowledge of the continuation of the night shift it was necessary, in our judgment, for the Tribunal to record that evidence and to express its findings on the third question which we formulated above. They failed to do so. That is an error of law.

(3) Here, the complaints were presented outside the primary limitation period. Did the Industrial Tribunal correctly approach the second question posed by Section 67(2), that of reasonable practicability? This is essentially a question of fact for the Tribunal, but it must be answered by reference to the applicant's subjective state of mind. It is not reasonably practicable for him to bring a complaint within time if he is unaware of a crucial fact. It is not necessary for him to prove that fact at a limitation hearing. Machine Tool Industry Association v Simpson [1988] ICR 558. Applied in Marley (UK) Ltd v Anderson [1994] ICR 295, 300 C-F.

(4) In this case the crucial "fact" was the Respondent's belief that the night shift was still operating. It was not necessary for the Tribunal to enquire whether that fact was true (although it was accepted by the Appellants). If the Tribunal was satisfied that acquisition of that knowledge was crucial to the Respondent's decision to present a claim, that is sufficient, provided the Tribunal are satisfied that such knowledge was crucial in changing the employees subjective state of mind from one in which they did not believe that they had grounds for presenting a complaint into one in which they had a reasonable and genuine belief in those grounds for presenting a claim.

(5) It follows that this Tribunal went far beyond what was necessary for deciding this limitation question by embarking on a fact finding exercise in paragraphs 6 and 7 of their reasons as to whether or not the reason for dismissal given by the employer at the time of dismissal, namely redundancy, was a genuine reason. We have considered Rule 6 of the Tribunal Rules of Procedure which provides:

"(1) A tribunal may at any time before the hearing of an originating application, ... determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates.

(2) A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal."

Looking at the Tribunal's letter dated 29th June 1995, giving notice of the hearing to be held on 28th July 1995, it is clear that such hearing was limited to the limitation issue under Section 67(2). Mr Maynard points out that his request for further and better particulars of the Notice of Appearance, directed to the merits of the case, was left unanswered pending the outcome of this preliminary hearing. In our judgment tribunals should be astute to limit the evidence and argument to the particular issue being heard. Otherwise unfairness to one or other party may ensue, and the tribunal may be led into making otiose findings. That is what this Tribunal did, in our view, and fell into error by so doing.

(6) The final point we must consider is this. Where a complainant raises more than one ground of complaint, as in this case, and the tribunal at a preliminary hearing resolves the second and third questions posed by Section 67(2) in favour of the applicant on one ground but not others, does the whole complaint proceed to a full hearing on the merits or only that ground so specified?

In our judgment it is open to the Industrial Tribunal to decide that the complaint under Section 67(2) should only proceed on such ground or grounds in respect of which it finds it was not reasonably practicable to present the complaint within time. We understand that to be the approach of this Tribunal in Marley (UK) Ltd and Anderson at page 303G.

Having concluded that this Tribunal fell into error we shall allow the appeal and remit the matter to a fresh Industrial Tribunal for determination in accordance with the guidance which we have sought to give in this judgment.