United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR L GERRARD (of Counsel) Messrs Keene Marsland Solicitors Dragoon House 37 Artillery Lane Bishopsgate E1 7LT
For the Respondents	MR N ROBERTSON (Solicitor) Messrs Rowe & Maw Solicitors 20 Black Friars Lane London EC4V 6HD


 


JUDGE N BUTTER QC: This is an appeal by Ms Glennie in respect of a decision of an Industrial Tribunal held at London (North) on 28 August 1997. The Chairman sat alone and sent out his Extended Reasons on 24 September 1997. His decision was that the Tribunal did not have jurisdiction to consider the application.

Both the documents IT1 and IT3 stated that the Applicant ceased her employment on 27 February 1997 and the application before the Tribunal proceeded on that basis. It was the Respondent's contention that the Originating Application was not presented to the Industrial Tribunal until 27 May; that is to say that it was one day after the expiry of the time limit prescribed by Section 111 of the Employment Rights Act 1996.

The Chairman, having considered the matter carefully, accepted that submission and held that it had been reasonably practicable for the complaint to have been presented within time. In those circumstances he reached the conclusion to which I have already referred.

The Notice of Appeal raises an entirely new point which it is accepted was not dealt with or considered by the Industrial Tribunal. The Appellant says:

"The grounds upon which this appeal is brought are that the Industrial Tribunal erred in law in that although the appellant's last day at work was 27.2.97, this was in fact the date upon which she received one month's notice. Consequently the effective date of termination for the purposes of making a claim is 27.3.97. This means that the IT1 form received by the Industrial Tribunal on 27.5.97 was within the three months time limit. .... "

The general principle is clear, that the Employment Appeal Tribunal will not ordinarily consider a point which was not raised before the Industrial Tribunal. There are however, circumstances in which it may do so. The case of Kumchyk v Derby City Council [1978] ICR 1116 is a point where certain principles were laid down. Those principles were considered in subsequent cases, including that of House v Emerson Electric Industrial Controls, a decision of the Employment Appeal Tribunal, reported in 1980 ICR, page 795. A passage at page 800 B - C has been drawn to our attention. There Talbot J, giving the decision of the Tribunal said:

"We would wholly endorse what was said by Arnold J. and what would seem to be setting out the settled and accepted practice in this appeal tribunal, and we would not seek to depart from what he said - except, in our view, that where the matter raises the question of jurisdiction, (that is to say, whether the industrial tribunal claimed jurisdiction, or refused to accept jurisdiction) it is open, even if that matter was not raised before the industrial tribunal, to argue it before the appeal tribunal. It would seem to us quite contrary to any principles of justice not so to hold."

In the present appeal it is argued on behalf of the Appellant that that decision should be followed and that there is, accordingly, a requirement wherever a point as to jurisdiction is raised that it should be considered by this Tribunal. We do not accept that proposition and we do not believe that Talbot J intended to lay down a principle in that way. What he said was considered in the subsequent case of Russell v Elmdon Freight Terminal Ltd, again a decision of the Employment Appeal Tribunal, reported in 1989 ICR at page 629; the relevant passage is at page 633 C - E. The case of House v Emerson was referred to and then Knox J went on to say:

"There were two possible ways of arguing the case on behalf of the employee, one of which was allowed to be advanced by the appeal tribunal although it had not been advanced below. Here we have two possible ways in which the case could have been mounted by the employee when the matter came before the industrial tribunal. We have come to the conclusion that the statement to be found in House v Emerson Electric Industrial Controls is not to be construed as meaning that any and every point on jurisdiction, whether or not it may involve the adducing of further evidence, can be taken at any stage in the proceedings. For that in our view would be much too wide a principle. In each case in our view, the court has to decide on balance whether justice requires that the new point should be allowed to be taken."

This Tribunal today follows and accepts that proposition. It is helpful to refer to one further decision of the Employment Appeal Tribunal, Barber v Thames Television Plc [1991] ICR  253. At page 268 Knox J said:

"It does not however follow from this that all jurisdictional points must be allowed at any stage even if they involve a further hearing to establish further facts. In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken. If it appears on existing evidence that the decision appealed from is a nullity that will be a consideration of overwhelming strength. Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straightforward."

It is apparent from these cases that the fundamental test to be applied is: what is in the interests of justice in the particular circumstances of the case? Accordingly, the present Tribunal does have a discretion. It is not one which should be readily exercised in favour of an Appellant raising a new point, but it remains a discretion to consider the application in the light of all the relevant circumstances.

Mr Robertson has presented a forceful and cogent argument and has contended that it would not be right for this Tribunal today to exercise its discretion in favour of the Appellant. Although we accept that there is force in the various matters which he has presented to us, each one of us feels individually and, therefore, we are unanimous in our decision, that this is a case where the interests of justice do, in truth, require that the matter be remitted to the Industrial Tribunal to determine, as a preliminary issue, what was the effective date of termination and accordingly, whether or not there is jurisdiction to proceed to a full hearing.

In these circumstances and for these reasons the appeal is allowed. The question of costs which has been mentioned in the course of the hearing is one which the Industrial Tribunal may want to consider in the exceptional circumstances of the case, namely that it is being asked to consider a matter which could, undoubtedly, have been raised before the Tribunal at the earlier hearing.