United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (of Counsel) Messrs Whittles Solicitors Peal Assurance House 23 Princess Street Albert Square Manchester M2 4ER
For the Respondents	MR M McPARLAND (of Counsel) Messrs Davies Wallis Foyster Solicitors 5 Castle Street Liverpool L2 4XE


 


LORD JOHNSTON: This is an appeal at the instance of the employee, Mr Ian Laing, against the decision of the Industrial Tribunal to the effect that a submission, to use a neutral phrase, made by him to the Industrial Tribunal in the spring of 1996 did not constitute an Originating Application in terms of Rule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.

The case has a complicated history with which we are not greatly concerned, save to recognise that prior to the application with which we are concerned, there had been a hearing before the Industrial Tribunal lasting some days, which eventually terminated without result in relation to allegations by the appellant of racial discrimination within the employment workplace of the Department of Health and Social Security. It also has to be recognised that subsequent in time to the application with which we are concerned, a completely fresh application was made by the appellant in the beginning of 1997, which application was held to be out of time. The appeal that is now taken does not concern itself any longer with any questions arising in respect of that latter application and concentrated solely upon whether or not the tribunal had properly determined that the application with which we are concerned was not to be regarded as an Originating Application in terms of the Regulations.

Before considering the submissions of counsel, it is appropriate that we record how we consider the Regulations in question should be construed, and we do so against the background of the case of Dodd v British Telecom plc [1988] IRLR 17, and in particular the statements of law emanating from Scott J. in paragraphs 15 and 16 of that decision. In essence we consider that in terms of Rule 1 for there to be a competent and relevant Originating Application there requires to be in substance the essentials of the three subparagraphs set out there, namely the name and address of the applicant, the name and address of the person against who relief is sought, and the grounds and the particulars thereof on which relief is sought. We do not find the words "mandatory" or "directory" helpful. We prefer the approach of Scott J. that in substance a line has to be drawn to determine whether the material presented meets the criteria of Regulation 1. We consider that this a free-standing question not borne upon by the effect of Regulation 1(2) which empowers the Secretary to the tribunal to seek further particulars from an applicant where there is a problem, as they see it, in relation to the relief which the applicant is seeking. It is also important, in our view, to recognise that there is major distinction between what constitutes an Originating Application and the process of registration in due course determined under Regulation 2.

Against that background, the determination of the tribunal was to the effect that the submissions made by the appellant to the Industrial Tribunal in question, which constituted in effect a two page document which was admitted by the parties to have been presented with the application (which is to be found on pages 35 and 36 of our bundle) and a short letter which is quoted by the tribunal:

"Re: Laing v The Department of Social Security (IT) - Unfair Dismissal)

I refer to the above.

Enclosed is the IT1 against the dismissal from the employment of the above employers."

[This letter revealed the appellant's address.]

Against that background, the decision of the tribunal or at least the reasons given for why it considers that what was presented to the tribunal does not amount to an Originating Application, is to be found on page 30 of our bundle where the tribunal lists five reasons for basing their decision, in particular:

"i) Particulars which were required under Rule 1 of Schedule 1 were not provided by the applicant to the Tribunal despite a request for the same,

ii) The Tribunal was not provided in particular with the name and address of the respondent to the claim, or his place of work,

iii) The applicant did not provide dates of employment or specify the complaints which were being made although requested to provide the same,

iv) The applicant was conisant with the Tribunal procedure with regard to the presentation of Originating Applications by reason of his previous experience and legal training.

v) The applicant did not offer any response to the letter dated the 22 May 1996 from the Central Office of the Industrial Tribunals; he did not proffer information or offer any explanation for his action nor did he suggest an error on the part of the Tribunal staff."

That letter, namely 22nd May 1996, was addressed to the appellant and requested certain further details as were perceived by the writer of the letter to be necessary to meet the terms of Regulation 1. The appellant did not reply to it.

Mr O'Dempsey who appeared for the appellant based his submissions on a central proposition that the tribunal had taken into account factors which it should not have taken into account. In particular, when looking at the decision, on page 29 of the bundle, it was looking at circumstances which related to whether or not such would be properly applied to the question of the application being registered; and secondly, and perhaps more importantly, in terms of the five reasons we have just enumerated, that reasons iv) and v) were nothing to the point when it came to considering whether what had been offered to the tribunal should be regarded as an Originating Application. He submitted in addition that in so far as as it was admitted the documents in question, while identifying the DHSS as the employer by reason of the heading of the letter, did not provide the address of the employer which was one of the things required by subsection (b) of Regulation 1, relying upon two relatively old cases, namely Smith v Automobile Proprietory [1973] ICR 306 and Gosport Working Mans and Trade Union Club v Taylor (EAT/628/77), that precise presentation of an address was not necessary if there was a general ability on the part of the tribunal to ascertain who the employer was and where he or she resided or if it was a company or department, the appropriate address. This was reinforced by the Gosport case where all that was provided was a telephone number.

Against that background, Mr McParland submitted that the tribunal had properly directed itself to the issue that was before it, had taken on board precisely the facts it should have taken on board, and had ultimately determined what amounted to a question of fact. The tribunal had dealt with issues of credibility, branding, it has to be said, the appellant as dishonest, only in relation, it was submitted, to requirements that might be relevant to whether or not the tribunal was properly exercising its discretion with regard to the secondary issues of time bar and the decision to review. Neither of these was now before us. He submitted that the decision was correct in fact and was in any event a question of fact with which we could not interfere.

In our opinion, the submissions of Mr O'Dempsey are to be preferred in respect that we consider that the issue of whether or not a submission to an Industrial Tribunal is to be regarded as an Originating Application requires an objective test to be applied to the material submitted to ascertain of whether it contains sufficient to meet the substance of Regulation 1. Form is immaterial. We use the word 'substance' because we accept that the approach of Scott J. in Dodd, is correct when he talks about basic essentials in terms of a 'must' before the substance of Regulation 1 is met, without being concerned of either the form in which it is presented, or, at the end of the day, with any differences that might arise in interpretation, so long as the facts can be properly interpreted. We are concerned that on the face of the document that was presented, there is no address as to the employer, but we are prepared to follow the general trend of the cases, that such is not necessary if the matter can be easily resolved. (Smith supra). In our opinion in this case it would have been and obviously was. We are also concerned to some extent that there does appear to have been little or no attempt by the appellant to follow up what was an unnecessary but obviously indulgent request by the tribunal in terms of the letter of 22nd May, to get further particulars. However, we consider that such was not necessary and we consider that the tribunal has misdirected itself by taking into account the failure on the part of the appellant to answer that letter when it should have been determining only the question of whether in terms of Regulation 1 there was an Originating Application. Equally the credibility and knowledge of the appellant are nothing to the point of their objective question, and this constitutes a further misdirection.

We therefore consider that the matter is open before us. We consider it is a matter of law to determine how to construe documents against a statutory requirement. Looking at the matter broadly and perhaps generously, we have come to the view that there was sufficient material placed before the Industrial Tribunal with particular reference to the admitted two page document and the letter for it to be required to have considered it to be an Originating Application. The name and address of the applicant and the name of the employer are identifiable. The claim is categorised and the statement albeit confusedly states the relevant facts. What thereafter the tribunal office did with it is another matter, but as a matter of general law, where there are insufficient particulars, the appropriate course in our opinion is to treat the admission as an Originating Application and rely upon the powers given in Regulation 4 to have if necessary at the end of the day the matter struck out if an applicant does not meet the legitimate request for further and better particulars (cf. Regulation 13). This does not bear in our view on the essential question to be determined in relation to Regulation 1, and nor therefore is the letter of 22 May of any relevance to this question.

For these reasons this appeal will be allowed and the application will be remitted back to the Industrial Tribunal to proceed as accords.

By way of postscript, we would however without venturing a positive view, reserve our position as to what status this application can now have, given that it was superseded by a further application, albeit that that is now out of time. That is matter for which we leave for the Industrial Tribunal to consider in due course, together any questions that arise in relation to Regulation 4 and 13.

The appeal is allowed.