United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 897_94_2202

Appeal No. EAT/897/94

EAT/1084/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 February 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A E R MANNERS

MR G H WRIGHT MBE

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MISS D EVANS          APPELLANT

TOWN & COUNTRY (LIBERTYS) PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS S HARRISON

(of Counsel)

Tyndallwoods

1st Floor

Albany House

Hurst Street

Birmingham

B5 4BD

For the Respondents MR N OWEN

(Company Accountant)


 


MR JUSTICE MUMMERY (PRESIDENT): There are two appeals before the Tribunal. The Appellant in each of them is Miss Dionne Evans. The Respondent in each of them is Town & Country (Libertys) Plc, as proprietors of Libertys Nightclub in Birmingham.

Both appeals arise out of the decision of the House of Lords in R v Secretary of State for Employment Ex-parte Equal Opportunities Commission [1994] IRLR 176, promulgated on 3 March 1994. The appeals concern the impact of that decision on the rights and legal entitlements of part-time workers dismissed before the promulgation of that decision who now attempt to bring claims for unfair dismissal against their employer.

On both appeals Miss Harrison represented Miss Evans. We are grateful for her submissions. Mr Owen appeared as the representative of Town & Country.

The first appeal arises out of the decision of the Industrial Tribunal held at Birmingham on 26 August 1993. That Tribunal heard an application for unfair dismissal and illegal deductions contrary to the Wages Act 1986. Miss Evans presented her application with those claims on 8 June 1993. She said that she had been employed from 1989 to April 1993 as bar staff working between 10 and 12 hours a week and that she had been unfairly dismissed from her position. Her employer owed her wages.

The Tribunal unanimously decided to dismiss her application for unfair dismissal and recorded a settlement of her claim under the Wages Act, upon which she withdrew her application and they accordingly dismissed it. We are not concerned with the settlement of the Wages Act claim.

On the unfair dismissal claim the Tribunal simply said this in their summary reasons, notified to the parties on 14 September 1993:

"The applicant was dismissed and the effective date of termination of her employment was 21 April 1993.

The applicant's normal hours of work were less than 16 hours a week and she was not employed for the requisite continuous period to enable her to claim that she was unfairly dismissed."

There was no request at that time for full reasons. There was no appeal. Town & Country might legitimately think after the expiration of the time for appealing (six weeks from the date when the decision was sent to the parties) that was the end of that. Unknown to them and to Miss Evans, the House of Lords, about eight months later, delivered the decision in the Equal Opportunities case, which had the effect of part-time workers enjoying employment rights which few previously thought that they had.

Under the provisions of the Employment Protection (Consolidation) Act 1978, Miss Evans appeared to have no employment rights and the Tribunal had no jurisdiction to entertain her case. They did not investigate the rights and wrongs of it. They considered that they had no legal power to investigate a claim by a person who did not satisfy the qualifying threshold requirements of the Employment Protection Act. The House of Lords held that the qualifying threshold provisions relating to part-time workers were incompatible with the Treaty of Rome Article 119. They had to be disapplied. The effect was that part-time workers did have rights to complain of unfair dismissal and redundancy.

After this decision was promulgated there was renewed activity on the part of Miss Evans. She consulted the Citizens Advice Bureau. On 21 April 1994, another Originating Application dated 14 April was presented to the Tribunal against Town and Country. She made the same complaint that she had made before, that she had been unfairly dismissed on 21 April 1993.

An application was then made to the Industrial Tribunal by the Birmingham Citizens Advice Bureau for full reasons for the decision notified on 14 September 1993. A letter was sent by Miss Dale of the CAB in Birmingham to the Regional Office of the Industrial Tribunals on 5 July. On 13 July the Regional Secretary replied saying:

"I am directed to inform you that your request for full reasons has been refused.

Your request was not received within 21 days of the issue of summary reasons and the Chairman considers that full reasons would add nothing to the point in respect of which you are appealing.

... It is not clear whether the applicant is withdrawing the second application and now pursuing an appeal on the decision on the first application. Please clarify the position."

The position was clarified to this extent. On 25 July 1994, an appeal was served by the Citizens Advice Bureau, on behalf of Miss Evans, on the Employment Appeal Tribunal, appealing against the decision of the Industrial Tribunal notified on 14 September 1993. The basis of the appeal was that the Industrial Tribunal had made an error of law in dismissing her claim for unfair dismissal.

"3. The Industrial Tribunal was wrong in law in that it failed to consider the right of the Appellant to rely directly on Article 119 of the Treaty of Rome and on the Equal Treatment Directive.

4. Full pleadings to be submitted on receipt of full written reasons for the decision.

5. A copy of the Industrial Tribunal's decision of summary reasons is attached together with a letter from the Regional Office of the Industrial Tribunal refusing to provide full reasons."

The Employment Appeal Tribunal's Deputy Registrar wrote to Miss Evans on 2 August referring to the Notice of Appeal, and drew her attention to the fact that, under the Employment Appeal Tribunal rules, an appeal is not allowed to continue without extended written reasons. By that date, the Tribunal had refused to give extended written reasons. There was therefore a difficulty in complying with the requirements of Rule 3(1) of the Employment Appeal Tribunal Rules. Those rules provide that every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the "following documents". In the case of an appeal from an Industrial Tribunal, a copy of the extended written reasons for the decision of the Tribunal must be served.

By that time Miss Evans had instructed solicitors, Tyndallwoods of Hurst Street, Birmingham. They wrote to the Appeal Tribunal on 8 September, setting out the basis on which they had been instructed. They asked that an extension of time should be granted for bringing the appeal, due to the exceptional circumstances of the case. That is a change in the law and the fact that all actions subsequent to that change were carried out promptly. The "change in the law" was the Equal Opportunities case in March 1994.

They contended that, as far as full reasons were concerned, there were exceptional circumstances which should be taken into account. It was possible to argue the appeal without full written reasons. They referred to the terms of the letter from the Industrial Tribunal refusing full reasons, saying that they would add nothing to the point appealed.

The next step was the Industrial Tribunal's decision on the second application presented in April 1994, following the House of Lords decision. The Industrial Tribunal Chairman, sitting at Birmingham on 13 October 1994, refused a request, on behalf of Miss Evans, to amend the claim for unfair dismissal. He also decided that further proceedings in the application should be adjourned until the determination of the appeal served on 25 July.

"5 I have to determine whether Miss Evans, the applicant, is entitled to proceed with her application. Her particulars of claim make a vague reference to the House of Lords decision, but she is still claiming unfair dismissal. Such a claim has already been heard and determined by the industrial tribunal. I have considered questions of res judicata, and in particular, question of issue and cause of action estoppel. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings. The applicant has already unsuccessfully brought an application of unfair dismissal against these respondents, arising out of the same dismissal, before the industrial tribunal and is accordingly not entitled to proceed with her application. However, in view of the fact that the applicant has, in the 1993 proceedings, appealed to the Employment Appeal Tribunal, I think it right that I should not at this stage strike out the application or dismiss it, but rather that it should be stayed pending the outcome of that appeal."

He was not prepared to allow the amendment to make it an application under Article 119 of the Treaty of Rome and/or Equal Treatment Directive and Equal Pay Directive.

"6. ... If it is amended, that may well constitute a different cause of action, which would not attract the doctrine of res judicata. ... I have not determined that question. For similar reasons I think it right, at this stage, that no amendment should be allowed and that the matter should be considered, if the applicant wishes to appeal against this decision, if possible at the same time as the appeal in the 1993 application."

Miss Evans served a second appeal on 21 November 1994. The appeal was from the decision of the Chairman that the application to amend her case should be refused. The grounds of appeal refer to the legal developments in the Equal Opportunities case, to the power of a Tribunal to allow amendments and to the principles of law as laid down, for example, in the House of Lords in Arnold and Others v National Westminster Bank [1991] 2 WLR 1177 in relation to the rules against re-litigation.

Since these two appeals were served and since directions were given that they should be heard together, the law has moved on yet further. The relevant principles on the points raised on this appeal are now the subject of three further decisions; the first relating to appeals out of time in Setiya v East Yorkshire Health Authority [1995] ICR 799.

The second related to new proceedings brought on the same facts and the issues of estoppel arising from them. That is the subject of a decision of the Court of Appeal in Barber v Staffordshire County Council, not yet reported and only handed down by the Court of Appeal in January 1996. That has to be read with a third decision, also of the Court of Appeal, Biggs v Somerset County Council which was also handed down in January 1996.

The position is, as Miss Harrison has been constrained to accept, that, in the view of those decisions, it is not possible for this Tribunal to do anything other than dismiss both appeals. There is no error of law in the decisions of the Tribunal. It is not proper to extend the time for appealing.

The first point is whether Miss Evans is prevented from continuing with her appeal against the first decision because she is unable to produce full reasons of the Industrial Tribunal. On that point we find in favour of Miss Evans. We reach the conclusion that the Tribunal simply dismissed her claim on a matter of jurisdiction and did not investigate the facts or merits of the case. It is not necessary to have the full reasons for the decision in order to decide the issue raised on the appeal, namely whether she has a right, as a part-time worker, not to be unfairly dismissed. The Chairman, who refused the full reasons, was correct in saying that there was nothing more that could be said than was said on the jurisdictional ground. Although Rule 3(1)(c) cannot be complied with, we would waive it in this case and allow the appeal to proceed on summary reasons only.

The second point is that as Miss Harrison accepts, the appeal against the first decision is about nine months out of time. She submitted that we should extend the time. The reason for the appeal being out of time was the uncertainty in the law introduced by the House of Lords decision. Before the House of Lords decision the law was clear; Miss Evans did not and could not satisfy the requirements of the jurisdiction of the Industrial Tribunal to entertain a claim of unfair dismissal. Soon after the House of Lords decision in Equal Opportunities case, which disapplied those qualifying provisions, Miss Evans acted promptly. She had gone to the Citizens Advice Bureau. She had started, on their advice, a new case in April 1994. She served her Notice of Appeal on 25 July. She then instructed solicitors to represent her on the appeal and at the hearing of the second case.

Miss Harrison pointed out that Miss Evans was not legally represented at the time of the first decision. It was the duty of the Tribunal to raise with her issues relating to jurisdiction. They were in a better position than she was to raise these issues. Miss Harrison said that the decision of this Tribunal in Setiya v East Yorkshire Health Authority could be distinguished. That was a case where there had been two years' delay. It was also a case where the claim of Dr Setiya rested on the Directives, not, as the claim of Miss Evans does, on the Article 119 of the Treaty.

We are unable to distinguish the reasoning in Setiya from this case. The position is, in our view, that the principles laid down in Setiya apply. This appeal was out of time. It is not a ground for extending the time that a higher court has, subsequently to the original decision, pronounced a different view of the law.

For all the reasons explained in the Setiya decision, we would apply the same considerations here and refuse to extend the time.

As the appeal is out of time and it is not appropriate to extend the time, it will be dismissed, but we give leave to appeal for this reason. Setiya is under appeal to the Court of Appeal. The Court of Appeal may not agree with the principles set out in this Tribunal's decision. If we grant leave to appeal to Miss Evans, that will preserve her position in respect of any different view of the law taken by the Court of Appeal.

Miss Harrison has also asked that we do what we can to bring this appeal to the Court of Appeal at the same time as Dr Setiya's appeal. We do not think it appropriate to take any steps. It is for the Court of Appeal to organise its business and decide whether it is willing to hear two appeals, instead of one, at the same time. If any submissions are to be made about the hearing of this appeal by the Court of Appeal, they should be made by the parties or their legal representatives to the Civil Appeals Office of the Court of Appeal.

That brings us to the third and final point for decision, whether the Chairman of the Tribunal was right to refuse an amendment to the case to allow Miss Evans to bring a second application for unfair dismissal.

In our view, he was right to exercise his discretion to refuse the amendment. The reasoning of the Court of Appeal in both the Biggs case and the Barber case supports the view that Miss Evans has no right to bring a second case based on the same facts as her unsuccessful first case. She cannot avoid the consequences of the rules against re-litigation by saying that her second case is framed as a Community Law claim based on Article 119, instead of a Domestic Law claim based on the provisions of the Employment Protection (Consolidation) Act 1978.

The Chairman was right. We dismiss that appeal on the basis of the decisions of the Court of Appeal cited. Those decisions are themselves under appeal to the House of Lords. The House of Lords may arrive at a different decision from the Court of Appeal, as it did in the Equal Opportunities case. We therefore grant Miss Harrison's application for leave to appeal against this decision. It would not be right that we refuse leave and then the House of Lords arrive at a different decision and Miss Evans finds herself out of time for appealing against our decision, based on the Court of Appeal decisions.

We have noted the points made by Mr Owen in relation to his clients. Their position was, on a practical basis, that they dismissed Miss Evans as a part-time worker. When she brought the case to the Industrial Tribunal, the Tribunal said that they had not got jurisdiction to hear it. As far as they were concerned, when the Industrial Tribunal declined jurisdiction, that was the end of the matter. We can appreciate how it was a surprise for them to find that, after the case was dismissed in October 1993, they should receive a second application in April 1994, followed in July 1994 by an appeal against the decision of the previous October. It must be as bewildering to them, as it is to many other people, to be caught up again in litigation about something which they thought had been finally decided.

We dismiss the first appeal, because we refused to extend the time for appealing. We dismissed the second appeal because the Chairman was right to refuse to allow an amendment to enable the same claim to be re-litigated. We give leave to appeal in both appeals.