United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Mr Roger Storer against the decision of a Chairman, Mr D Booth, sitting alone at the London (South) Employment Tribunal on 4th November 1997, first to dismiss his Originating Application and secondly in refusing his subsequent application for a review of that first decision. We shall refer to the first decision, promulgated with extended reasons on 19th November 1997 as 'the substantive decision', and the second decision, promulgated with extended reasons on 12th December 1997, as 'the review decision'. The respondent to these claims and to this appeal is his former employer, British Gas Plc ["British Gas"].

The appellant

Mr Storer is an intelligent man. The Chairman so found in paragraph 13 in his reasons for the substantive decision; that is also apparent to us from hearing him, and from his academic qualifications obtained during the course of his employment with British Gas whom he joined at the age of 18 in September 1967 to rise in due course to a senior position as Assistant Financial Services Manager, earning £42,000 per annum gross at the time when his employment ended on 23rd December 1996 at the age of 47. That is the effective date of termination of the employment in this case.

The background to the end of a career approaching 30 years, so the appellant contends, is that during 1994 he was systematically victimised and bullied by his then manager, causing stress from which he never recovered prior to the termination of the employment.

To an affidavit sworn in this appeal on 9th February 1998 the appellant exhibits a medical report from Dr G Davies, a Consultant Psychiatrist dated 11th July 1996. That report was not put before the Chairman. We note that Dr Davies saw the appellant of five occasions between November 1995 and July 1996. In that doctor's opinion the appellant was suffering from Post Traumatic Stress Disorder and in July 1996 was suffering from Obsessive Compulsive Personality Disorder, a condition which the doctor describes in his report.

A contributory factor to the deterioration in his health, says the appellant, was that he was required to move his place of work to Dorking in Surrey which involved him in a long car journey each day from his home in Edgware around the M25 motorway.

Between 28th June and 28th August 1996 he took paid sick leave. In early September 1996 after his return to work he was offered a discharge under the British Gas early redundancy scheme. He accepted that offer leaving on 23rd December 1996 with a total severance payment of £85,163.47.

By a letter of 23rd December 1996 to his manager Mr Roger Clarke, he referred to the earlier bullying to which he was subjected and sets out the sort of complaints which, in our view, form the basis of his complaint to the Employment Tribunal.

The Complaint

That complaint was presented on 20th June 1997. In the Originating Application the appellant makes the following claims:

(1) Redundancy. He contended that the payment which he received was 3% too low. We have explored this part of the claim with him today, and it appears that the tribunal Chairman was correct in taking the view that this was not a claim for a statutory redundancy payment, which was included in the overall severance payment, but in fact was a complaint about performance related pay which he says was denied him as a result of his performance suffering due to the stress caused by the earlier bullying.

(2) Unfair dismissal. Again, the appellant refers to bullying in 1994. The respondent's failure to take preventative steps and milder bullying in 1996.

(3) Failure to provide a written statement of Employment Particulars.

(4) Breach of contract. He alleges by sustained bullying.

(5) Disability discrimination. Failing to allow sufficient time for him to recover from the bullying.

Limitation

(1) Redundancy. The time limit for making a claim for a statutory redundancy payment is six months from the effective date of termination with provision for a further extension of six months where it is just and equitable to do so. Employment Rights Act 1996 s. 164.

However, as we indicated earlier, it is clear that this head of claim is in fact a claim for breach of contract in respect of which the time limit is three months from the effective date of termination, subject to the reasonable practicability provisions for extending time under Article 7 of the Industrial Tribunal Extension of Jurisdiction Order 1994.

(2) Unfair dismissal. Again the time limit is three months subject to the reasonable practicability extension. Employment Rights Act 1996 s. 111.

(3) Reference under s. 11 of the Employment Rights Act 1996 for written particulars of the terms and conditions of employment. That again is three months subject to the reasonable practicability extension.

(4) Breach of contract. We have dealt with that under (1) above.

(5) Disability Discrimination. Here the time limit is again three months, subject to the question as to whether or not it is just and equitable to extend time.

The reasonable practicability test was considered by the Court of Appeal in Palmer v Southend Borough Council [1984] IRLR 119. The Chairman referred to the guidance given in that case in the course of his reasons for the substantive decision.

'Reasonable practicability' means was it reasonably feasible to present the complaint to the Industrial Tribunal within the three month period.

'Just and equitable'. We have reminded ourselves of the judgment of Phillips J. in Hutchison v Westward Television Ltd [1977] IRLR 69, in which giving the judgment of this tribunal he referred to the "wide discretion" granted to Employment Tribunals, as they now are, to do what is 'just and equitable' in the circumstances, and drawing attention to the fact that for an appeal to succeed against the exercise of discretion granted to the tribunal under the just and equitable principle, it is necessary to show that the tribunal below demonstrably took a wrong approach to the matter or took into account facts which they ought not to have done, or failed to take into account facts which they should have done, or that the decision was so unreasonable in the circumstances of the case that no reasonable tribunal could have reached it.

The Chairman considered the explanation put forward for the delay in presenting the Originating Application and concluded that it was not unreasonable to expect someone of the appellant's intelligence, standing and experience to be able to fill in a two page Originating Application at some time between his weekly visits to his mother in the three months which followed the termination of his employment. It was also open to him to seek legal advice and, in the Chairman's view, it was reasonably practicable to present the complaint within time; and further, it was not just and equitable to extend time for the purpose of the disability discrimination claim.

The appellant applied for a review of that decision and the points made by the appellant were rejected in the review decision. Hence his appeal to this Appeal Tribunal.

The Appeal

For the purpose of this appeal Mr Storer has prepared a detailed skeleton argument and we have a number of documents before us, some of which are referred to in the argument.

His first point of complaint is that this was not a public hearing. What seems to have happened is that on 4th November 1997 this case was floating. In the afternoon there was no regular tribunal room in which the hearing could be held. It so happened that at that time the Regional Chairman's position was unfilled at London (South), and so the hearing was held in the Regional Chairman's office. It is right to say that that office is in the secure part of the building, but there is no suggestion that any member of public was prevented from attending the hearing, and in our view it can properly be described as a public hearing. We therefore reject that first point of appeal.

Secondly, he raises a number of complaints in relation to the Chairman's conduct of the proceedings which he says shows that he did not have a fair hearing. We have considered those allegations, together with the appellant's affidavit in support, and the comments of the Chairman in relation to that affidavit. Rules 9(1) and 13(1) of the Industrial Tribunal Rules of Procedure allow Industrial Tribunal Chairman a good deal of lassitude in the way in which they conduct hearings and the way in which they dispose of their business. We shall always be astute to detect any improper procedural methods used by Employment Tribunals, but it seems to us that this was a case where the Chairman was perfectly entitled to conduct the case in the way that he did, and we can see nothing exceptionable in that regard.

The next point is that following the hearing held on 4th November, the respondent a week later under cover of a letter of 11th November, sent to the tribunal certain documents which had not been before the Chairman on 4th November. Those documents are in fact letters which the appellant himself had written to various senior British Gas officials. The first one dated 25th April was to the Chairman, Richard Giordano. Although the Chairman is his subsequent letter commenting on the appellant's affidavit recollected that he had not taken those documents into account in reaching his decision, we are prepared to assume in the appellant's favour that that particular letter was in the Chairman's mind and was referred to in paragraph 13 of the substantive reasons decision. But we ask ourselves whether any injustice has been caused. Had these been documents of which the appellant was unaware we could see the force of that submission, but this was a document which he himself had written. Indeed, it emerged during the course of the hearing before us that he personally attended the British Gas Annual General Meeting at the end of April 1997 and put certain questions to the Chairman. It seems to us that that is all of a piece with the further explanation given to us today by Mr Storer that although he was aware of the possibility of bring a claim for unfair dismissal, and that there was a time limit for such claims, when his employment ceased he did not do so until 20th June, because it was not until then that he felt confident that he had a case which would stand up.

It seems to us that that is no explanation for the delay. In these circumstances we are unsurprised that the Chairman came to the conclusion which he did, which was that each of these claims was out of time, and there was no basis under the 'just and equitable' or the 'reasonable practicability' tests for extending time.

In these circumstances, having considered the various ways in which the case was put by Mr Storer, we cannot find any arguable point of law in this appeal, and consequently, it must be dismissed at this stage.