United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T PITT-PAYNE (of Counsel) Messrs Speechly Bircham Solicitors Bouverie House 154 Fleet Street London EC4A 2HX


 


JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at Southampton on 18 February 1999, in which they found that the complaint of the Applicant was within time and that the Tribunal had jurisdiction to entertain the complaint, which was, and remains for unfair dismissal by the Respondents as the successors to an undertaking in accordance with the Transfer of Undertakings (Protection of Employment) Regulations.

1. The relevant statutory provision as to whether or not the complaints were in time required the Tribunal to determine first, whether it was reasonably practicable for the Applicant to present his complaint before the end of the period of three months beginning with the effective date of termination of his employment or alleged deduction for wages which he has complained of. If it was so reasonably practicable the complaint failed; if it was not so reasonably practicable, the Tribunal then had to consider whether the complaint was presented within such further period after the expiry of that three months, as the Tribunal considered reasonable.
2. The history of this matter is fully set out in the decision of the Employment Tribunal and we consider the appeal at this preliminary stage to determine whether there are points of law, such as to justify this appeal being considered in full by the Employment Appeal Tribunal. The facts that they found we refer to very briefly. On 19 May 1998 the Appellant received a letter giving notice of receivership of his then employers, with the intention of selling the business and informing him, in effect promising him, that if his contract of employment were to be terminated he would be advised of his rights under the Employment Protection (Consolidation) Act 1978. Two days later he did receive a letter terminating his employment and advising him that he might have claims against the Redundancy Payments Office and/or the Department of Trade and Industry.
3. Both those letters were in standard form and on 21 May, pursuant to the advice he received, the Respondent submitted his claims to the Secretary of State. On 21 May it appears there was a sale of some parts of a business to the Appellants, which is alleged by them to be the transfer of an undertaking. That was not something of which the receivers of the Respondents' employers ever notified him at that time. The Tribunal found that no announcement was made by the receivers or the Appellants as to the nature and effect of the transaction. The Appellant was not taken on.
4. Having submitted his form to the Secretary of State, it was not until 15 July that he received a letter which, because it lies at the heart of the decision of the Employment Tribunal in the submissions helpfully made to us by Mr Pitt-Payne today we quote in full:

"THE EMPLOYMENT RIGHTS ACT 1996

Re: ROTHWELL GROUP PLC [they were the Respondent's employers]

I refer to your application for payments from the Secretary of State out of the National Insurance Fund for:

Arrears of pay….. [and] holiday pay…

I must advise you, on behalf of the Secretary of State, that after careful consideration your above claims are rejected because the Secretary of State understands that the business in which you were employed was transferred to a new employer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981 namely Glenlake Computers Ltd. These Regulations safeguard employees' rights when a business or an undertaking is transferred to a new owner. Briefly, this means that the new employer takes on most obligation in relations to the employees, including debts outstanding at the time of transfer. In the Secretary of State's opinion, the new employer is liable for any payment due to you and I suggest that you write to your new employer as soon as possible to pursue this.

If you are unclear about this decision or think it was based on incorrect or incomplete facts, please contact me and I will clarify the decision for you and if necessary check and reconsider it.

If you disagree with the decision, you have the right to present a complaint to an Industrial Tribunal, naming as respondent The Secretary of Trade and Industry at the address given on this letter.

There are strict time limits for presenting such complaint…

[Arrears of Pay/Unfair Dismissal …]

You must present the complaint within 3 months of the date you receive this letter."

5. That is the letter that was received and the Tribunal found that time did not then begin to run. On behalf of the Appellant, Mr Pitt-Payne argues that upon receipt of that letter, it was practicable to present a complaint and that that was the advice given. He argues that in considering whether or not it was reasonably practicable, in the event of uncertainty or confusion or the Respondent not being clear, there was an obligation upon him to find out what he should do. He says that because of both those things the decision that it was not so reasonably practicable was euphemistically described by Mr Pitt-Payne in his submission, as being surprising. He said there was no factual basis for it and, implicitly, that it was perverse. He said that particularly because if the reference to the new employer had been left at large he would have accepted the argument to the contrary, but here it was stated to be Glenlake and so the Respondent was put on enquiry as to whether he should present and complain against them.
6. The finding of fact of the Employment Tribunal however, was that the Applicant was confused by the letter. The suggestion in the first paragraph that he should write to the new employer made no sense to him since he had no new employer. He was left uncertain as to what claims he might have or the parties against whom any claims might lie. They find that the Respondent did not understand the letter to be advising him that he had a claim and that his understanding was that any claim would be subject to a three month time limit from the date of receipt of the letter.
7. They then found that in the absence of a new employer, as the Respondent understood it, he decided to contact his former employer through the receivers and on 18 August he wrote a letter which the Employment Tribunal found was probably posted several days later, in which he held both his former employers and the Appellants liable and made a number of claims. The primary three month period expired on 20 August and on 29 August the receivers, R Rothwell, responded asserting that the Respondent's claim was against either the DTI or the Appellants and invited him to write to their solicitors. Then on 28 August the Respondent went to a meeting of creditors and was told that his letter had been passed on and then on 7 September he received a letter from a former colleague in employment at Rothwell which first

"brought it home to the [Respondent] that he had a claim enforceable in the Employment Tribunal against the Respondents and that the primary time limit for that claim was different from that referred to in the RPO letter and had already expired."

8. The Respondent completed the form on 11 September, delayed "a good week" before posting it and the complaint was presented on 22 September just over a month outside the primary period. The Employment Tribunal then set out the submissions that were made to them that it was reasonably practicable to present the claim in the alternative that the Respondent was put on enquiry as to his rights by the letter and could have taken advice and the third matter as to the exercise of discretion thereafter. The Employment Tribunal then set out their conclusions. They say that the Respondent was not to be faulted for his ignorance of the fact that he might have a claim until he was put on notice. They find as a fact that the standard letters of 19 and 21 May did not put him on enquiry and they then went on to consider the letter, which I have quoted. They describe it as being "somewhat stronger" but they found that the letter was of poor quality and they go on in the following terms:

"…we fully understand that the applicant should have found it confusing. Four points in particular must be made. First, the letter makes no reference to unfair dismissal in the context of a relevant transfer under the 1981 Regulations and, in particular, to the possible liability of a transferee in respect of pre-transfer dismissals. Secondly, the letter does not appear to be directed at all to the case of an employee (such as the applicant) dismissed by the receivers and not engaged by the transferee. The references to the "new" employer seem on a natural reading to apply to the case of an employee taken on by the transferee. It is no surprise that the applicant felt that the advice to write to the "new" employer did not apply to him. Thirdly, there is nothing to suggest that a Tribunal claim may lie against the respondents. The recommendation (p 5a) to write to the "new" employer contrasts sharply with the express references (p 5b) to the right to challenge the decision of the Secretary of State by means of a complaint to the Tribunal. Fourthly, the letter certainly does nothing to draw the reader's attention to the fact that any claim against a transferee of the business may be in danger of becoming time barred, whereas there are clear warnings concerning the time limits applicable to any proceedings against the Secretary of State."

9. It seems to us that those are all arguments, which can on points of view and findings, be reasonably made upon the text of the letter. It is a matter of interpretation and different interpretations may apply to a document, but in so far as the analysis of that document is a mixed question of fact and law, we come to the conclusion that the interpretation placed upon it was within the capacity of the Employment Tribunal reasonably to make.
10. The Tribunal then in effect goes on to make their findings in the following terms:

"It is in our view unsurprising that the [respondent] was left with the impression that the only time limits to which any claim open to him might be subject were those set out on the second page of the letter (p 5b). In all the circumstances, we conclude that the RPO letter, read as a whole, did not put the applicant on inquiry as to his rights and that, after receipt of that letter, it remained not reasonably practicable for the applicant to present his compliant within the primary 3-month period."

In supporting his argument for appeal, Mr Pitt-Payne has referred us to two cases which are well known; Dedman v. British Building and Engineering Appliances Ltd 1974 ICR, where in the very end of the report, Lord Justice Scarman, as he then was, was reported as saying:

"Does the fact that a complainant knows he has rights under the Act inevitably mean that it is practicable for him in the circumstances to present his complaint within the time limit?"

And he then goes on to analyse various matters which a Tribunal would look at;

"It would be necessary to pay regard to his circumstances and the course of events. What are his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would not be appropriate to disregard, relying on the maxim "ignorance of the law is no excuse". The word practicable is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance."

11. Lord Brandon, in the Wall's Meat Co. v. Khan 1979 ICR 53, defines reasonably practicable as arising

"if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance… the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or mistaken belief on the other, is itself reasonable."

12. Mr Pitt-Payne has argued for a construction of the letter that puts the recipient on notice of the existence of a new employer against whom it is practicable to issue a complaint, and, as we say, that is a reasonable interpretation of the document. However, it seems to us that the passage to which we have referred in which the Tribunal set out its conclusions fall fairly and squarely within the approach that is intimated in the passages in the two cases to which we have referred. Mr Pitt-Payne points out that the evidence of the Respondent was that he was confused by receipt of that letter. In the words of the Tribunal:

"The letter made no sense to him and he was left uncertain as to what claims he might have."

But what the Employment Tribunal did was to look at all the circumstances and not "cherry pick" them and those findings were within the same paragraph which concluded with a finding that the understanding of the Respondent was that any claim would be subject to a three month time limit from the date of receipt of the letter.

13. So it does not seem to us that if one is to look at all the findings as a whole, it can reasonably be argued that there was an error of law on the part of the Tribunal in failing, in effect, to single out one aspect of their findings and rely upon it to the exclusion of the others. We can find no point of law whatsoever arising from the interpretation by the Employment Tribunal of that letter. Mr Pitt-Payne has gone on to suggest that even if that letter gave rise to a reasonable misunderstanding as he put it, or could be seen to have given rise to a reasonable misunderstanding, it was incumbent upon the Employment Tribunal to go on to ask whether or not the Respondent should have done anything at that stage to clarify his rights and had he done so, it was reasonably practicable therefore to bring the complaint within the time relying upon the way in which the matter was set out by Lord Brandon. But Lord Brandon it seems to us, was setting out the sort of matters that should be taken into consideration. He was not setting out, as we read it, a rule of law that in all cases one of the questions an Employment Tribunal must specifically ask itself is whether it was incumbent upon an employee to clarify any confusion he may have had or his rights at a particular stage.
14. Furthermore, we find that in the end, the finding of the Employment Tribunal in this case was not that there was confusion, but that arising out of his confusion and uncertainty having read the letter, the Respondent was left with an understanding that any claim was subject to three months time limit from the date of that particular letter. They make that specific finding within the very same paragraph to which Mr Pitt-Payne has asked us to look.
15. Furthermore, in their findings to which we have already referred, the Tribunal find that it is unsurprising that the Applicant was left with the impression that the only time limits to which any claim owing to him might be subject were those set out in the second page of the letter. And they concluded that the letter read as a whole, did not put the Applicant on enquiry as to his rights and that after receipt of that letter, it remained "not reasonably practicable". In those circumstances, if it did not as a finding of fact, or indeed of mixed fact and law, put the Applicant on enquiry as to his rights, then the situation never arose when he was under an obligation to clarify his rights or to disabuse himself of confusion.
16. The error, if we may say so, in Mr Pitt-Paynes submissions on this point is that he has selected one part of the findings of primary facts, ignoring the conclusion of fact to which I have just referred, drawn from all the findings of primary facts which the Tribunal were entitled to make in our judgment. Accordingly, there is no point of law it seems to us, in the second ground of appeal.
17. We now come to the third matter which is that the Employment Tribunal in their decision, went on to consider whether the complaint was presented within a reasonable period of the ending of the three month period of limitation. In effect, they refer to three matters. They refer to a period of 15 days, from the delivery of the letter from Mrs Gray, which put the Respondent on notice to the presentation of his complaint. Secondly, they refer to a period of 11 days during which there was no satisfactory explanation for not progressing matters by the Respondent. Thirdly, they consider that the Applicant acted promptly in obtaining and completing the form. Having set out those three matters, they then consider also the overall period of just over a fortnight.
18. It is clear from the wording of the statute that it is the reasonableness of the period to which an Employment Tribunal must look, and we agree with Mr Pitt-Payne in this case. Essentially what is being looked at is the reasonableness of the conduct of the Respondent. But of course also, the actual objective period of time involved must also be a relevant consideration, it seems to us, and in other cases there may be other factors to take into account. In looking at the conduct of the Respondent, the Tribunal clearly looked not only at the 11 days in which there was no activity; they looked at the period in which there was very prompt activity and they also looked at the overall period and they exercised their judgment upon it. Mr Pitt-Payne shied away from saying that such a conclusion was perverse.
19. It seems to us that on the law and the facts as found by the Tribunal in the exercise of their discretion, the conclusion to which they came was one, which within the parameters of the lawful exercise of discretion they were eminently entitled to reach. We have come to the judgment that there is no point of law in this appeal such as to merit this matter proceeding to a full hearing and accordingly we dismiss it at this stage.