United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G HODKINSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by Mr Stanley from a decision of an Industrial Tribunal sitting at Cardiff on 1 October 1997, that he, as a person trading as J. Stanley Building Contractors, was liable to pay the Applicant a sum in excess of £3,700 by way of redundancy pay, £2,160 pay in lieu of notice and £150 compensatory award for unfair dismissal.

The sole ground upon which Mr Stanley seeks to prosecute an appeal is that the Applicant to the Industrial Tribunal, Mr Toms, applied to that Tribunal out of time, so that the Tribunal did not have jurisdiction to entertain his claim.

Mr Toms began work with Mr Stanley as a general builder in 1976. He was paid regularly and when Mr Stanley had no work for him, he would be given jobs to do in Mr Stanley's own home. That arrangement ended in April 1997. Mr Toms worked on Friday 4 April and, at the end of the day, he was told by Mr Stanley that there was no further work. Mr Stanley gave evidence to the Tribunal that he had suggested to Mr Toms that he could do an emulsioning job for him, but Mr Toms turned that down, saying he was going on holiday for two weeks. Mr Toms denied that such an offer of work had been made.

However that may be, on 16 April Mr Toms called at Mr Stanley's house and asked for "some week-in-hand money" and holiday pay, but was told he was not entitled to any. From the next day he claimed income support and he was paid income support from 1 May onwards.

On 27 July Mr Toms wrote to Mr Stanley asking for redundancy pay and holiday pay and any monies owning. Mr Stanley replied on 31 July. He explained that the holiday year ran from April to April. He said that in April 1997 Mr Toms was not officially employed by him and that, if he was officially re-employed by him before April 1998, holiday pay would come back into force. He told Mr Toms that he had not made him redundant, but had had to lay him off until he got more work which he was trying to do.

Mr Toms made a complaint to the Industrial Tribunal, received by the Tribunal on 6 August 1997. He claimed in respect of unfair dismissal and redundancy, and he claimed payments plus legal entitlements, e.g. holiday pay. The Industrial Tribunal found, as a fact, that Mr Toms was dismissed without notice on 4 April 1997; that the reason for dismissal was redundancy and that the dismissal was unfair, in that Mr Stanley had not acted reasonably.

In the light of those findings, the Tribunal made an award of £3,780 redundancy pay, £2,160 for pay in lieu of notice and a compensatory award for unfair dismissal of £150.

Mr Hodkinson today, appearing for Mr Stanley, concedes that the complaint, so far as it related to redundancy and the redundancy award, was within the time limited by statute for making a complaint to the Industrial Tribunal. But, he submits, that the complaint in respect of unfair dismissal, not made until the beginning of August, was outside the three-month period from the effective date of termination, found by the Industrial Tribunal to have been 4 April 1997; and the claim in respect of other monies, which has been treated as a claim dealt with under the Industrial Tribunals Extension of Jurisdiction Order 1994, was also out of the three month time limit.

Mr Hodkinson submits that that being the case, the argument that the Tribunal did not have jurisdiction in respect either of the compensatory award for unfair dismissal, or in respect of the pay in lieu of notice complaint, is unanswerable. He says that this case should, therefore, go to a full hearing when these matters can be put right, so far as they can be put right, on a full hearing.

We are very troubled by the course that Mr Hodkinson proposes. We are troubled about it first because we are told, and so far as we can discern from the papers, the time limit jurisdiction point was never taken before the Industrial Tribunal at all. It is suggested that with both Mr Toms and Mr Stanley in person, the question of time limit was one simply overlooked by the Industrial Tribunal.

We are hesitant to accept that an experienced Industrial Tribunal has necessarily overlooked so fundamental a point. We are aware that there was some confusion in the evidence before the Tribunal as to just what had transpired between Mr Toms and Mr Stanley. But we are also very much conscious that, in respect of both the pay in lieu of notice award and the compensatory award, the Tribunal has, and had, a discretion to extend the time for making an application, in particular circumstances. It may be that the Industrial Tribunal had that discretion in mind and merely failed to advert to it in its Extended Reasons, we simply do not know.

What we therefore propose to do, at this stage, is to adjourn this preliminary hearing to a date to be notified in due course and we intend to ask the Registrar to write to the Chairman to ask for her notes of evidence, or any other records or recollection that may give an indication as to whether the jurisdiction point arising from time limits was addressed in the minds of the Tribunal and, if so, in what way they had resolved it. When that response is to hand this case will be restored for further consideration by the Employment Appeal Tribunal at a preliminary hearing.