United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1238_94_0705

Appeal No. EAT/1238/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th May 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

Ms S R CORBY

MR A D SCOTT

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MR J CAMERON          APPELLANT

DIGITAL EQUIPMENT CO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MRS L CAMERON

(Wife)

For the Respondents MR D RICHARDSON

(of Counsel)

Messrs Field Seymour Parkes (Solicitors)

The Old Coroner's Court

1 London Street

PO Box 174

Reading RG1 4QW


 


MR JUSTICE MUMMERY (PRESIDENT) The critical facts in this case are that (a) the Appellant, Mr J B Cameron, brought a case for unfair dismissal against his employers, Digital Equipment Co Ltd ("Digital") in the Industrial Tribunal in April 1990 and withdrew that claim in November 1990, whereupon his application was dismissed; and (b) Mr Cameron attempted to bring another case 3¹/₂ years later in respect of the same dismissal.

This appeal arises out of the decision of the Industrial Tribunal at a preliminary hearing held at Reading on 7th October 1994, to dismiss a second Originating Application presented by Mr Cameron against Digital on 24th May 1994, again complaining of unfair dismissal and also of redundancy. The issue on this appeal is whether there is an error of law in the Extended Reasons of the Industrial Tribunal sent to the parties on 2nd November 1994 explaining why Mr Cameron's second application should also be dismissed.

Mr Richardson, on behalf of Digital, argues that there is no error of law. But Mrs Cameron, who presented the case fully and forcefully on her husband's behalf, argues that there are errors of law in the application of the doctrine of estoppel and in the interpretation and application of the law relating to time limits for bringing cases of unfair dismissal and for claims for statutory redundancy payments.

The Relevant Facts

The relevant facts appear from the Extended Reasons and relevant documents and may be summarised as follows:-

(1) Mr Cameron was employed by Digital as an Information Specialist in the Enterprise Design Group. He had joined Digital as long ago as October 1974 as a Technical Author. He had not had an updated job description since joining the Enterprise Design Group in July 1984 as an Information Specialist.

(2) Between July 1989 and 22nd February 1990 Mr Cameron asked his manager to conduct a job plan and review. But this was refused without, Mr Cameron says, a satisfactory explanation.

(3) In September 1989 Mr Cameron commenced a formal grievance under Digital's grievance procedure. Mr Cameron alleges that Digital did not adhere to their own grievance procedure.

(4) On 22nd February 1990 Mr Cameron was dismissed by a letter of that date. Digital alleged misconduct on Mr Cameron's part.

(5) On 20th April 1990 Mr Cameron presented an Originating Application to the Industrial Tribunal claiming unfair dismissal and denying misconduct. Digital contested the claim in a Notice of Appearance filed in May 1990. The misconduct alleged by them was failure to attend work.

(6) The proceedings were due to be heard by an Industrial Tribunal on 8th and 9th November 1990.

(7) By a letter dated 7th November 1990 the solicitors then acting for Mr Cameron under the Green Form scheme wrote withdrawing Mr Cameron's claim and stating that proceedings would be brought in the High Court for wrongful dismissal "within the course of the next few days". On 9th November 1990 the Industrial Tribunal made an order dismissing Mr Cameron's proceedings on their withdrawal. (Mr Cameron did not commence High Court proceedings for wrongful dismissal until 4th August 1993).

(8) On 21st January 1991 Mr Cameron's solicitors wrote a letter to Digital's Legal Department stating that they acted for Mr Cameron in relation to the termination of his employment in February 1990. They made a number of points and a proposal on which they welcomed Digital's comments. At the end of a four-page letter the solicitors stated -

"...In the alternative, the facts suggest that this was a redundancy situation, in that there was a diminution in your requirements for the job Mr Cameron had been required to do. Section 2.11G of your Manual defines redundancy as (inter alia) "a job (which) has changed in responsibility and skill requirements to the point that it is no longer able to be carried out by the original jobholder, or the jobholder considers it unsuitable ie, the original job no longer exists."

Had the contractual procedures been followed, Mr Cameron would have received 4¹/₂ weeks' pay for each year of service = 67¹/₂ weeks' pay.

We await your comments on our proposal and your suggestions for settlement of this matter."

On 14th February 1991 Digital's Legal Department replied -

"It is denied that your client was dismissed in breach of Digital's disciplinary procedures or that he was dismissed on ground of redundancy. He repudiated his contract of employment by failing to attend work.

In view of the above we do not intend to make any suggestions for settlement as we believe your client has no valid claim against this Company."

(9) On 24th May 1994 Mr Cameron presented a second Originating Application to the Industrial Tribunal. He claimed unfair dismissal and redundancy against Digital. He recognised that his application was out of time. He advanced the main grounds of his application as follows:-

(a) The reasons given by Digital in 1990 for his summary dismissal were not the true reasons.

(b) From additional papers, which were not disclosed in the 1990 proceedings, but only subsequently disclosed on discovery in High Court proceedings in April 1994, it appeared that the true reason for his dismissal was redundancy, not misconduct as alleged by Digital. He could now show that. He could not do that previously, as he had no exact knowledge of the documents now produced. They had not been produced by Digital in the 1990 proceedings.

(c) Redundancy was not an issue in the 1990 proceedings. He did not know that the Enterprise Design Group had been disbanded and that Digital and their associated employers had published a voluntary severance package.

The new IT1 contained three pages of details on those points.

(10) Digital served a Notice of Appearance on 28th June 1994 taking the following preliminary points:-

(a) Mr Cameron's employment was terminated in February 1990 and the Tribunal had no jurisdiction to hear his claim.

(b) Mr Cameron's application was an abuse of process, as he had brought a previous Originating Application for unfair dismissal, which had been withdrawn and dismissed by the decision of the Industrial Tribunal dated 9th November 1990.

Digital's IT3 also disputed Mr Cameron's claim that his dismissal was terminated by redundancy. Digital alleged that it was terminated by his repudiatory breach of contract and his misconduct. It is unnecessary to examine those allegations in detail since the grounds on which the Tribunal rejected Mr Cameron's claims in the 1994 proceedings were preliminary matters relating to time and abuse of process.

The Decision of the Industrial Tribunal

The Industrial Tribunal unanimously decided to dismiss Mr Cameron's claims in the second proceedings for the following reasons:-

(1) As for the claim of unfair dismissal, Mr Cameron was estopped "by the reason of the dismissal of his claim in 1990 from presenting a further application to the Tribunal based on the same dismissal". (paragraph 20)

(2) Alternatively, Mr Cameron's claim for unfair dismissal was out of time under S.67(2) of the Employment Protection (Consolidation) Act 1978. It was reasonably practicable for his application to have been presented within time. That was demonstrated by the fact that he "did present such an application within 3 months based on those allegations (ie allegations that Digital failed properly to implement their grievance procedure". (paragraph 23). In so far as his unfair dismissal claim was based on the allegation that redundancy was the real reason for his dismissal, he was aware of that by 21st January 1991 and he had not brought his application within such further period as the Tribunal considered reasonable.

(3) As for the claim for redundancy, Mr Cameron was out of time under S.101 of the 1978 Act and there was no jurisdiction to extend time. As for the first 6 month period allowed by that section, Mr Cameron had not made a claim for payment by notice in writing to the employer (S.101(1)(b). He could not rely on the claim for unfair dismissal to bring the case within that sub-section, because he had later withdrawn it. As to the second 6 month period, Mr Cameron's second application to the Industrial Tribunal was not brought within the period of the second 6 months (ie, within 12 months of his dismissal). His letter of 21st January 1991 was written within the second 6 months but did not, when properly construed, amount to a request in writing for a redundancy payment within S.81 and did not therefore satisfy the requirements of S.101(1)(b) and S.101(2)(a).

(4) Alternatively, it was not just and equitable that Mr Cameron should proceed and receive a redundancy payment. By 21st January 1991 he suspected that the reason for his dismissal was or might have been redundancy and he was aware that he could present an application to the Industrial Tribunal. It would have been open to him to make a request for payment or presented a further application to the Tribunal. The sheer lapse of time meant that it was not just and equitable that he should now proceed.

Mr Cameron's Appeal

Mr Cameron appealed against the Industrial Tribunal's decision by Notice of Appeal subsequently amended on 21st October 1995 following a preliminary hearing in this Tribunal on 6th October 1995.

Mrs Cameron made many references in her submissions to the documents, and to the detailed facts of the case and to the merits of it. She appreciated that this Tribunal only has jurisdiction to hear appeals on questions of law. We shall confine our summary of her submissions to the legal questions which arise for decision on the appeal. Mrs Cameron's submissions on her husband's behalf may be summarised as follows:-

(1) In deciding whether or not it was reasonably practicable for a person to bring an unfair dismissal case within 3 months, as required by S.67 of the 1978 Act, it is necessary to look at the state of knowledge of the applicant at the material time. It is not reasonably practicable for an employee to present a claim based on facts unknown to him.

(2) The Industrial Tribunal had been led into error by their consideration of the 1994 application. The grounds of that application were that the reasons given by Digital in 1990 for Mr Cameron's dismissal were not the true reasons. It was not until the disclosure of additional papers in the High Court proceedings in April 1994 that Mr Cameron could show that the reasons given by Digital for his dismissal were not the true reasons and that the true reason was redundancy. Those documents had given him "new and crucially important facts". These were special circumstances displacing principles of estoppel and allowing re-litigation: Arnold v. National Westminster Bank plc [1991] 2 AC 43 at 105 C-D.

(3) Reliance was placed on S.53(4) of the 1978 Act which entitles an employee to present a complaint to an Industrial Tribunal against an employer on the ground that the particulars of reasons given by the employer in purported compliance with S.53(1) are untrue. If the employee's complaint is well founded, the Industrial Tribunal may make a declaration as to what it finds the employer's reasons were for dismissing the employee. The Industrial Tribunal should, in this case, have applied the time limit provisions in S.67(2) to the 1994 application in the terms of S.53.

(4) The Industrial Tribunal erred in law in holding that only one unfair dismissal claim is allowable per dismissal and that Mr Cameron was estopped from bringing the second application in 1994. As was held in Marley (UK) v. Anderson [1996] IRLR 163 neither the 1978 Act nor the Industrial Tribunal Rules contain any specific restriction on the number of complaints that may be brought by any one complainant in respect of any one dismissal. On the question of reasonable practicability it was necessary to look at the matter ground-by-ground and fact-by-fact under each head of unfair dismissal upon which the complaint is founded. The grounds of the 1994 application were different from those of the earlier application. The basis of the earlier claim was the failure of Digital to comply with the grievance procedure. The 1994 claim was based on the terms of S.53 (and not, as the Chairman appears to have thought, on a claim of unfair selection for redundancy).

(5) The Industrial Tribunal erred in law in holding that Mr Cameron's suspicions in January 1991 that he was redundant meant that he ought to have applied to the Industrial Tribunal on that date on the ground of redundancy. On that part of the case the Industrial Tribunal had failed to apply the correct test for redundancy claims under S.101 of the 1978 Act. Mr Cameron had complied with the provisions of S.101(1)(d), because he had presented a complaint under S.67 relating to his dismissal and had done so before the end of the period of 6 months beginning with the relevant date ie, when the termination of his employment took effect. He therefore satisfied the time limit for a claim for a statutory redundancy payment. He did not need to present his second application within the second 6 months: he had already fulfilled the requirement of S.101(1)(d). Compliance was not affected by withdrawal of the first application in November 1990.

Conclusions

We have given careful consideration to Mrs Cameron's submissions, but have concluded that the contrary submissions of Mr Richardson on behalf of Digital are correct. The decision of the Industrial Tribunal to dismiss Mr Cameron's 1994 application was legally correct and we should dismiss this appeal for the following reasons.

(1) Estoppel

The Industrial Tribunal did not err in law in applying the doctrine of estoppel to prevent Mr Cameron from pursuing a second claim for unfair dismissal and redundancy. The Court of Appeal recently held in the case of Barber v. Staffordshire County Council [1996] IRLR 209 (paras 25 - 37) that

(a) the rules against re-litigation (estoppel per rem judicatam and issue estoppel) apply to Industrial Tribunal cases for unfair dismissal and redundancy.

(b) Those rules apply even in a case where the earlier proceedings had been dismissed without a reasoned decision, consequent on the claim being withdrawn.

(c) the rules apply, except in special cases, to every point which properly belongs to the subject-matter of the litigation. In both redundancy and unfair dismissal claims the essential feature of the claim is dismissal. Estoppel applies to prevent a claim for unfair dismissal which could or should have been pursued at the same time as a redundancy claim was made and vice versa.

In this case a claim was made and withdrawn by Mr Cameron. It was a claim for unfair dismissal. If he wished to claim for redundancy, he should have done so at the same time or, at the very latest, in January 1991 when the solicitors wrote the letter already mentioned. There are no special circumstances displacing the principles of estoppel. The fact that stronger evidence has been obtained subsequently (ie the documents disclosed on discovery in April 1994) does not constitute a special reason for departing from the doctrine of estoppel.

(2) Unfair dismissal - time limits

We agree with Mrs Cameron that the Industrial Tribunal were mistaken in thinking that it was ever Mr Cameron's case that he was unfairly selected for redundancy. His case in 1990 was that Digital had failed properly to implement the grievance procedure. It was reasonably practicable for Mr Cameron to make a complaint within 3 months of his dismissal. He in fact did so. The Industrial Tribunal had no discretion to extend the time in respect of that ground of complaint. His new claim is based on the allegation that Digital lied about the real reason for his dismissal (misconduct) and concealed the real reason (redundancy). But he asserted that as early as January 1991. The documents discovered in April 1994 were evidence which confirmed that belief. In our view, there is no error of law in the Industrial Tribunal's decision that, even assuming that it was not reasonably practicable to advance that ground of complaint within 3 months of dismissal, he was aware of the redundancy ground by 21st January 1991 and did not bring his application within such further period as the Industrial Tribunal considered reasonable pursuant to S.67(2).

(3) Redundancy - time limit

Mr Cameron cannot bring his case within S.101(1) because he cannot satisfy the requirements of that sub-section. Any argument that he may have had in reliance on S.101(1)(c) (that he had presented a claim under S.67 relating to his dismissal before the end of the period of 6 months beginning with his dismissal) is defeated by the fact that that claim was withdrawn within the second period of 6 months to which the discretion to extend time is attached.

Mr Cameron's case is more promising than the Industrial Tribunal thought under S.101(2). Mrs Cameron argued that during the second period of 6 months immediately following the first period mentioned in sub-section (1) (ie, on 21st January 1991) he "made a claim for payment by notice in writing given to the employer". That would satisfy S.101(2)(a), subject to one point of construction. It is clear that Mr Cameron cannot satisfy S.101(2)(c) because he presented his first complaint in the first 6 months, not in the second 6 months, and he did not present his second complaint until over 3 years after the expiration of the second 6 months.

The Tribunal thought that Mr Cameron's solicitor's letter of 21st January 1991 could not properly be construed as a request in writing for redundancy payment as defined by S.81.

In our view, the Industrial Tribunal construed that letter too narrowly in holding that the claim must be for a "statutory payment" as defined by S.81 and that this letter was not making a claim for a statutory payment. See Price v. Smithfield & Zwanenberg Group Ltd [1978] ICR 93. The recipient of the letter would reasonably understand that, in all the circumstances of the case, it was the intention to seek a redundancy payment.

That error does not, however, make the ultimate decision of the Industrial Tribunal legally incorrect, because the making of a claim, in order to satisfy S.101(2)(a), is only a condition for the exercise of a discretion to extend time. It does not automatically mean the employee has retained his right to a redundancy payment. In this case the Industrial Tribunal were, in our view, entitled in all the circumstances to conclude that it was not just and equitable that Mr Cameron should receive a redundancy payment. There is no error of law in the Tribunal's exercise of discretion on that point. Nor was there any error of law in the alleged omission of the Tribunal in their decision of submissions which Mrs Cameron says she made to the Tribunal.

For all those reasons, we dismiss this appeal.