United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J GALBRAITH-MARTEN (of Counsel) Messrs Actons Solicitors 2 King Street Nottingham NG1 2AX


 


MR JUSTICE BELL: This is a preliminary hearing of an appeal against the decision of the Liverpool Employment Tribunal sent to the parties on 7th August 2000. The parties are the GPMU and six of its members employed by the company which is respondent to the applications and appellant before us.

1. The six employees were dismissed on 30th April 1999, the express reason being redundancy. They now have two sets of proceedings pending arising out of their dismissal on 30th April 1999.
2. The first is the original set of proceedings alleging unfair dismissal in a failure to consult. The second proceedings allege automatically unfair dismissal by reason of a transfer of an undertaking. The time for presenting those proceedings expired on 29th July 1999.
3. The first set of proceedings were presented within that time, but the second set of proceedings were presented well out of time.
4. The union's claim alleges a failure to consult under Regulations 10 and 11 of TUPE. The relevant transfer occurred on 30th June 1999. So the time limit for presentation of those proceedings expired on 29th September 1999.
5. What appears to have happened is that having started the first set of proceedings and having learned in about June 1999 of the relevant transfer, legal advice was taken and the applicants, now respondents to this appeal, were advised that they could introduce their second claims by way of amendment of the first. The possibility of that amendment was raised with the Employment Tribunal in August 1999. It took until November 1999 for there to be a hearing to discuss what should happen next. In fact, when the applicants sought the necessary amendments before a tribunal on 31st March 2000 their application was contested and it was rejected by the tribunal on the basis that new proceedings were necessary. The applicants, now respondents to this appeal, then made an application for an extension of time on the basis that it had not been practicable to start the second set of proceedings earlier because they were misled by the advice they had been given until they had the decision of the tribunal on 31st March 2000. That argument appealed to the Employment Tribunal which made the decision which is now appealed against. On 7th August 2000 the tribunal ordered that time be extended so as to validate the new claims. In effect what the tribunal on 7th August 2000 appears to have decided was that the advice which had been given in or about 1999, albeit wrong in accordance with the 31st March 2000 decision, was defensible. It was not patently negligent. It did not occur to either side at the November 1999 hearing that an application to amend was misconceived, and in the light of the reasonable but incorrect advice it was not reasonably practicable for the second complaint to have been presented in time or indeed until after the tribunal decision on 31st March 2000.
6. Mr Galbraith-Marten, who appears for the company today, suggests that there are three bases upon which the decision of 7th August 2000 can be plausibly challenged on appeal. Firstly, he says that it is was wrong in law of the tribunal to find that reliance on erroneous legal advice could in itself be a ground for holding that it was not reasonably practicable to present a complaint.
7. In our view that is an arguable point.
8. Mr Galbraith-Marten goes on to say that in any event the tribunal did not really grapple with the fact that the applicants, respondents to this appeal, knew some time before 29th July 1999 that there was a claim for unfair dismissal by reason of the transfer of undertaking. The tribunal did not deal with the time which passed between the date of knowledge of the transfer and 29th July or 29th September and did not ask itself whether it was practicable to present the second category of claim before 29th July 1999 or 29th September 1999. Also Mr Galbraith-Marten argues that the tribunal does not appear to have considered the length of time which in fact passed in getting the matter before a tribunal and, in consequence, receiving the decision unfavourable to the applicants on 31st March 2000.
9. It seems to us that, at very least, those second and third points also are matters which merit the consideration of the Appeal Tribunal at a full inter partes hearing. This appeal will therefore be allowed to go ahead and we grant leave to the company to amend its Notice of Appeal in the form before us today to cover the points which we have canvassed and the company wishes to raise.
10. The case is to be listed for ½ a day, Category C. No Chairman's Notes of Evidence required.