United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 886_95_0304

Appeal No. EAT/886/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th March 1996

Judgment delivered on 3rd April 1996

Before

THE HONOURABLE MR JUSTICE HOLLAND

MR J R CROSBY

MR W MORRIS

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THE POST OFFICE          APPELLANTS

MR CHAPPLE & MR SLOCOMBE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR D BEAN

(of Counsel)

The Solicitor

The Post Office

Impact House

2 Edridge Road

Croydon

CR9 1PJ

For the Respondents MR T LINDEN

(of Counsel)

Messrs Pattinson & Brewer

Solicitors

30 Great James Street

London WC1N 3HA


 


MR JUSTICE HOLLAND: This is an appeal from a decision of Mr P.R. Anderson, a Chairman, sitting alone as an Industrial Tribunal at Exeter on the 26th June 1995, which decision was the subject of Extended Reasons sent to the parties on the 12th July 1995. Before him there were the applications of Mr David Chapple and Mr Kevin Slocombe, each complaining of alleged `action short of dismissal' taken against him by his employer, the Post Office, "for the purpose of ... preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him from doing so", see Section 146(1) Trade Union and Labour Relations (Consolidation) Act 1992. A preliminary issue had been raised by the Post Office for his ruling. That issue reflected further statutory provisions and the chronology. First, the further statutory provisions:

Section 146:

" (5) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of this section."

Section 147:

"An industrial tribunal shall not consider a complaint under section 146 unless it is presented-

(a) before the end of the period of three months beginning with the date of the action to which the complaint relates or, where the action is part of a series of similar actions, the last of those actions, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period, within such further period as it considers reasonable."

Second, the chronology:

March 1994. Certain incidents involving the applicants, allegedly as officials of the Union of Communications Workers.

25th July 1994. Letter from Mr R. Henderson, the Respondents' Director of Processing South Wales and South West, to the Union. In it he passes judgment on the relevant conduct of the applicants: "My conclusion is that this was not a legitimate trade union activity and therefore is proper to be regarded as gross misconduct." The letter concludes "I am proposing to place Mr Chapple and Mr Slocombe on suspended dismissal for a period of two years, with a clear warning to each of them that should they come under disciplinary notice they must expect that dismissal to be actioned. I have asked local managers to advise Mr Slocombe and Mr Chapple of my decision so that they can forward any reasons why the disciplinary award should not be made."

7th September 1994. After further correspondence, a letter from the Union to Mr Henderson: "Having reviewed the earlier correspondence between us there would seem little point in my putting forward any further arguments in correspondence to you. I therefore take the view that the matter is best processed by agreeing that the decisions which you conveyed in your letter dated the 25th July should now be dealt with by appeal as provided for under the Disciplinary Procedures for Trade Union Officials employed by Royal Mail."

14th September. The Respondents' Area Personnel Manager writes to the Applicants: "... the decision reached in your case will now be dealt with by Appeal as provided for under the Industrial Relations Framework Disciplinary Procedures."

5th and 6th January 1995. The Applicants signed their respective I.T.I's, each complaining "I was given a suspended dismissal," each specifying "the date when the action you are complaining about took place" as "March 94 to January 95."

30th March 1995. Each I.T.I. is presented.

The material for the respective submissions is completed by the Discipline Procedure for the Union Representatives. This is sophisticated eight stage process, of which the last three are material:

"6. The divisional line manager, having decided whether or not this recommendation should be supported, will write to UCW HQ, updating evidence as may be necessary and saying what disciplinary penalty it is proposed to award, UCW HQ will be invited to put forward any representations they may wish to make and, at the same time, the local manager will be asked to advise the individual so that he or she can put forward any reasons why the award should not be made.

7. After the divisional line manager has considered any representations from the individual to the local manager or from UCW HQ, he or she will advise the local manager if and when the individual should be told of the disciplinary award in accordance with the provisions of the Code. UCW HQ will be similarly advised.

8. If the individual considers he or she has good reason to challenge the penalty awarded, he or she will be entitled to seek an explanation from the local manager and, if not satisfied, may appeal either personally or through UCW HQ. In serious cases involving dismissal suspended dismissal or compulsory transfer, UCW HQ may, at the discretion of the General Secretary, refer the case to the Personnel Director Royal Mail. In other cases, the appeal will be considered by the Divisional Personnel Director."

The Post Office as Respondents raised by way of a preliminary issue a jurisdictional point. They contended that any action taken against either Applicant was more than three months prior to the 30th March 1995 so that the Industrial Tribunal were prohibited by Section 147 from considering the respective complaints. It was this issue that was decided by Mr Anderson, in effect on the relevant exchange of correspondence: no oral evidence was put before him. In the event he found for the Applicants:

"In my judgment it was the imposition of the penalty of suspended dismissal with effect from 27 March 1995 that constituted the action against which the applicants have complained and I am unable to accept the alternative submissions of the respondent that the relevant action was the communication of the decisions to award suspended dismissals to both applicants notwithstanding their right to make submissions to management against those decisions and to appeal against those decisions that communication having being made on 25 July 1994."

The Post Office appeal and as Appellants put the matter thus by way of submissions made by Mr Bean:

1. Stage 6 of the Discipline Procedure was satisfied by the letter of the 25th July. He concedes that a proposal to take action cannot amount to taking action for the purpose of Section 146 and accordingly the Appellants no longer contend that time started to run as from this date.

2. Stage 7 was satisfied, he contends, by implication on or about the 14th September. For the matter to go to appeal, that is, on to stage 8, a stage 7 decision has to be inferred with a stay on its operation pending resolution of the appeal.

3. A stage 7 decision, whether appealed or not, amounts to 'action taken against' for the purposes of Section 146 and thus time started to run on the 14th September so that a complaint had to be presented within the next ensuing three months.

4. Further, reliance is placed on so much of each I.T.I. as complained of action in and between March 1994 and January 1995.

The Respondents' response as argued by Mr Linden is as follows:

1. On a proper reading of the correspondence and the relevant Discipline Procedure there was no stage 7 decision. The disciplinary award was never communicated as required to either Respondent. On a fair reading of the correspondence the Appellants and UCW HQ decided to omit stage 7 and to proceed directly to stage 8 appeals, conducting such against the stage 6 recommendation of the 25th July. On this reading of the situation, no `action' was taken against either Respondent until the appeal was dismissed and the resultant disciplinary award was communicated and put into effect on the 27th March 1995.

2. As for the I.T.I's. the critical words in each were `I was given a suspended dismissal', thus identifying the `action' relied upon, which action was that of the 27th March. The other words relied upon by the Appellants were erroneous and immaterial.

We are unanimously of the view that the response is well founded and that in his essential submission Mr Anderson cannot be faulted. Section 146(5) provides that a complaint is founded by action taken against an employee in contravention of the section, not by action that will or may be taken. The Disciplinary Procedure sensibly contemplates direct communication of a disciplinary award by the local manager to the individual concerned. Commonsense says that a dismissal suspended for two years must have a clearly defined date of imposition. Mr Anderson was right to direct himself that it is only by way of the letters of 27th March 1995 that suspended awards were imposed and thus `action taken against' Mr Chapple and Mr Slocombe. The notion of a stage 7 award on about the 4th September and thereafter subject to a stay was not contended for before him and as an analysis we reject it. Inter alia, that analysis is irreconcilable with the terms of the letters of the 27th March wherein there is no reference to any lifting of a stay consequent upon dismissal of an appeal. Before departing from Mr Anderson's decision, we acknowledge for completeness sake, a submission by Mr Bean that Mr Anderson's expressed reliance upon the submission made to him in writing by UCW as an aid to construing the letter of the 7th September was impermissible. As to this, we think that Mr Bean is right. Perusal of the submission revealed nothing that was material but in any event he was invited to decide this preliminary issue by construing the correspondence and the Disciplinary Procedure, for which purposes extraneous evidence of one party's intention is inadmissible. That said, that error plainly does not vitiate his conclusion.

It remains for us to test the validity of our approach by reference to the authorities cited to us by the respective parties, such authorities being British Airways Board v Clark [1982]) 1RLR 238, Palmer v Southend Council [1984] ICR 372, Adekeye v Post Office [1993] ICR 464 and Coker v Diocese of Southwark [1995] ICR 563. From such authorities we distil the following propositions. First, once `action' has been taken against an employee then he has just three months in which to present a complaint about it, notwithstanding that an internal appeal procedure has not yet run its course; further, if the complaint is out of time and an issue arises as to reasonable practicability of presentation in time (see Section 147(b)), then the fact of an unresolved internal appeal is a factor bearing upon resolution but it is not necessarily decisive, see Palmer at page 384. Thus, if stage 7 had been fulfilled at about 14th September 1994 so as to amount to `action taken against' then the fact of an unresolved stage 8 appeal would not have prevented time running, and would not indeed have been necessarily decisive in favour of the Respondents Applicants in the event of a `reasonably practicable' issue.

Second, we direct ourselves that if the respective I.T.I's. could be held to raise complaints based upon grounds arising more than three months before presentation then the limitation point cannot be resolved in the Applicant's favour by suitable amendment. If the Industrial Tribunal has no jurisdiction on the basis of the I.T.I. as presented, then it has no locus so as to make orders for amendment that will serve to give it jurisdiction. Thus if the Appellants' construction of the I.T.I's. be correct, the Industrial Tribunal had no jurisdiction and, by the same token, neither has this Tribunal, see Coker at page 566. Third, when assessing whether action has been taken against an employee the whole of a disciplinary history may be considered, including an internal appeal and its communicated result, see British Airways Board and Adekeye. It follows that the appeal and its result as communicated on the 27th March are potentially material when assessing whether action was taken against either Respondent.

We are grateful for such citation of authority. We are satisfied that none such impugns our acceptance of the submission of Mr Linden: action was not taken against either Mr Chapple or Mr Slocombe on or about 14th September; the respective I.T.I's. are not based upon grounds arising more than three months before presentation; and we have taken into account the whole disciplinary history including an internal appeal.

These appeals are dismissed.