United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


SIR CHRISTOPHER BELLAMY QC:

1. In this case the appellant, Mr Brian Bates, appeals against the decision of the employment tribunal sitting at Liverpool on 21 September 1999 whereby the Chairman sitting alone dismissed Mr Bates' claim for a redundancy payment brought against his former employers, Powertech Design Limited ("Powertech"), who are the respondents.
2. It appears from Mr Bates' IT1, dated 4 June 1999 but apparently received on 15 July 1999, that he commenced work at Powertech on 1 November 1994 as an Office Manager. He says in his IT1 that he was made redundant on 13 November 1998.
3. Powertech did not enter an appearance before the employment tribunal and played no part in the proceedings.
4. It appears that Mr Bates informed the tribunal by letter of 6 September 1999 that he would not be attending the hearing fixed for 21 September 1999, but asked that his representations in that letter be taken into account. The Chairman accordingly dealt with the matter on 21 September 1999 on the basis of Mr Bates' written representations, in accordance with Regulation 9(3) of the Rules of Procedure of Employment Tribunals 1993.
5. Mr Bates' written representations read as follows:

"Three months before my holiday on the 1^st November 1998 I continually reminded my employer that I needed my holiday pay as well as my wages. On the day of my holiday I received a week's wage with the proviso that the balance would be deposited in my bank the following week, this did not materialise. On my return to work my employer stated that work was coming to an end and he verbally stated to me that I could remain for a further two weeks without the guarantee of a wage or he could make me redundant. On leaving the premises we shook hands and conveyed no hard feelings to one another. My employer then said to me that any monies owing to me with regards to notice in lieu, wages, holiday pay, and redundancy pay would be forwarded to me as soon as possible.

On the 21^st January 1999 I wrote a letter to Powertech enquiring about my entitlements and could they possibly send my P45 and P60 out to me. I did not receive any response, so I contacted the local Citizens Advice Bureau who in turn told me to contact the DTI. The DTI acknowledged my claim form and stated they would contact my former employer. Please see exhibit No 1 from the DTI dated the 8^th April 1999. On the 12^th April I received a letter from my former employer please see exhibit No 2. That was the only correspondence I received from them.

On the 19^th May 1999 I contacted Mr Robinson of the DTI who told me that he had sent two reminders to Powertech and would now send out a third. On 1^st July I received a letter from the DTI, please see exhibit No 3. Following their advice I completed an IT-1 form and despatched it to you.

I commenced work for Powertech on the 1^st December 1994 and was made redundant on the 13^th November 1998 and I am still presently unemployed. All I require from Powertech are my wages, holiday pay and redundancy pay (if I am entitled to any?) I therefore await your decision and thank you for your co-operation in this matter."

6. In his extended reasons sent to the parties on 17 November 1999 the Chairman said:

"6. A claim for a redundancy payment should ordinarily be made within 6 months of the date of termination of employment. Clearly, in this case that did not happen.

7. However, the application was presented within a further 6 months of the expiry of that period and accordingly, he would not be deprived of his right to a redundancy payment if I were to consider that it was just and equitable that he receive one.

8. The first difficulty I considered the applicant had was in establishing that he had been dismissed. Although his Originating Application simply says he was made redundant, his representations refer to a discussion with his employer concerning the possibility of his remaining in employment. It is not apparent how that discussion terminated or whether it is appropriate to regard his employer as having terminated his employment.

9. Accordingly, I was not able to conclude that he had been dismissed and therefore could not reach the view that he was entitled to a redundancy payment.

10. Had that not been the case, again on the basis of the representations made, I still would have been prevented from making an award of a redundancy payment. Because of the late presentation it would have been encumbent upon me to consider the reason shown by the employee for the failure to make his application within the first 6 months. On the basis of the documents before me it appeared that the reason related to correspondence the applicant had had with the Department of Trade and Industry, but the situation was far from clear.

Accordingly and for those reasons I considered the applicant was not entitled to a redundancy payment and his application was dismissed."

7. There were thus two grounds for rejecting Mr Bates' application, the first ground being that the Chairman was unable to conclude that Mr Bates had been dismissed, and thus whether he was entitled to a redundancy payment. The second ground was that the Chairman felt that it "was far from clear" why Mr Bates' claim has been made more than six months from the date of termination of the employment.
8. In his Notice of Appeal, prepared by himself, Mr Bates said:

"With reference to the decision of the Industrial Tribunal. I would like to point out that in paragraph 9 it stated that a decision could not be reached regarding my dismissal, this was due to lack of evidence. However since the hearing I have obtained proof from the Benefits Agency regarding my dismissal, please see exhibits 1 & 2.

It was also stated (para 6) that I was late in making my appeal. My ex-employer promised me that my entitlements would be despatched to me within a month or so. After that time had elapsed I started to make enquiries. Not knowing the correct procedures I got in touch with the DTI in April and followed their advice. I would therefore like to state that I started my enquiries within the time allowed."

9. At an ex parte preliminary hearing on 7 June 2000, which the appellant did not attend, our colleagues (HH Judge Wilcox, Lord Davies of Coity and Mrs J M Mathias) took account of the material referred to in the Notice of Appeal regarding Mr Bates' redundancy and allowed this appeal to go forward to a full hearing. By order of 14 August 2000 the respondents (who have now apparently ceased trading) were debarred from defending this appeal, having failed to provide a respondent's Answer, or to comply with letters sent and a previous Order made by this Tribunal.
10. Prior to the date set for hearing this appeal, 7 November 2000, Mr Bates sent written representations as follows:

"I was made redundant from Powertech Design Ltd on 13^th November 1998 and after several attempts to obtain my wages, holiday pay and redundancy pay I had to contact the citizens advice bureau about what further steps to take. I then contacted the DTI who in turn contacted Powertech Design who tried unsuccessfully to obtain the monies owed to me. Powertech Design ignored the letters the DTI sent and so it had to be referred to the Liverpool Tribunal. No decision was made at the tribunal because of lack of evidence.

I then decided to appeal against the decision when I realised that the Benefits Agency would have on their files the reason I was no longer working at Powertech Design as they had had to contact them before they could make any kind of payments to me."

11. Mr Bates did not attend the hearing on 7 November 2000, having previously intimated to the Registry that he wished this appeal to be determined in his absence. We have accordingly done so.
12. The first question is whether the Chairman may have erred in law in respect of his finding that it had not been shown that Mr Bates was dismissed by his employer, a dismissal by reason of redundancy being of course a prerequisite to establishing a right to a redundancy payment under section 135(1) of the Employment Rights Act 1996. The Chairman's reasons for that finding, at paragraph 8 of the decision, were that "Although his Originating Application simply says he was made redundant, his representations refer to a discussion with his employer concerning the possibility of his remaining in employment. It is not apparent how that discussion terminated and whether it is appropriate to regard his employer as having terminated his employment."
13. The material that was before the Chairman consisted, first, of the applicant's IT1. There the applicant stated notably that he had been made redundant on 13 November 1998, that he had asked his employer about a redundancy payment, and that when no information was forthcoming, he had contacted the DTI, who had pursued the matter with the respondents.
14. Next, there was the content of the applicant's written representations, which we have cited above, which include the following:

"On my return to work my employer stated that work was coming to an end and he verbally stated to me that I could remain for a further two weeks without the guarantee of a wage or he could make me redundant. On leaving the premises we shook hands and conveyed no hard feelings to one another. My employer then said to me that any monies owing to me with regards to notice in lieu, wages, holiday pay, and redundancy pay would be forwarded to me as soon as possible."

15. We understand the Chairman's difficulty in this case, since the applicant was not present to explain himself. Nonetheless, we cannot quite see the basis for the Chairman's conclusion that it was doubtful, on the basis of the applicant's representations, how the discussion with his employer terminated or whether it is appropriate to regard the employer as having terminated the employment. The natural sense of the IT1 and of the applicant's representations, it seems to us, is that when the employer stated "that work was coming to an end" and that "I could remain for a further two weeks without the guarantee of a wage or he could make me redundant", the applicant chose to be made redundant. There then followed the handshake, leaving the premises without hard feelings, and the employer's promise to send on any monies owing, including redundancy pay.
16. Moreover, the applicant again asserted in his representations that he was made redundant on 13 November 1998, which also fits with the applicant's assertion that these events took place after his return from a holiday which began on 1 November. The applicant further states that he wrote to Powertech on 21 January to request his P45, P60 and redundancy pay which is also consistent with his employment being terminated by reason of redundancy.
17. It will be remembered that the respondents did not file a notice of appearance contesting the applicant's allegations, nor take any part in the proceedings.
18. While it is true that the Chairman would have been much assisted if the applicant had attended the tribunal, in our view, on the basis of the uncontested material which we have set out above, there was ample evidence from which it could reasonably have been inferred that the applicant's employment had been terminated, and that the reason for termination was redundancy.
19. In these circumstances we consider that the Chairman erred in law in failing to give sufficient reasons for rejecting the complaint on the basis that it had not been shown that the applicant's employment had been terminated or that he had been dismissed (see Meek v City of Birmingham District Council [1987] IRCR 250).
20. We add that we have reached the above conclusion on the material before the Chairman, without finding it necessary to rely on the information supplied to the appellant, at his request, by the Widnes office of the Benefits Agency on 29 October 1999 – that is, very shortly after the summary reasons for the dismissal of his claim by the tribunal had been forwarded to him on 18 October 1999, but before the extended reasons were supplied on 17 November 1999. That information, and the accompanying fact-finding sheet, confirms that the Agency accepted the applicant's claim for unemployment benefit from 17 November 1998, "after confirming with the ex-employer, Powertech Design of Fazakerley that your employment had come to an end, due to redundancy. We spoke to a Mr Joe Riley on 23.11.98".
21. Armed with that document from the Benefits Agency, Mr Bates could have requested a review of the tribunal's decision in accordance with Regulation 11 of Rules of Procedure of Employment Tribunals 1993, and it is to be regretted that he did not do so. We merely remark that the statement of the Benefits Agency of 29 October 1999 is further confirmation of the uncontested evidence which was before the Chairman.
22. That takes us to the second question, as to whether the tribunal erred in law in relying on the fact that Mr Bates' complaint was presented more than six months after the effective date of the termination of his employment, which we take to be 13 November 1998.
23. Section 164 of the Employment Rights Act 1996 as amended provides:

"(1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—

(a) the payment has been agreed and paid,

(b) the employee has made a claim for the payment by notice in writing given to the employer,

(c) a question as to the employee's right to, or the amount of, the payment has been referred to an employment tribunal, or

(d) a complaint relating to his dismissal has been presented by the employee under section 111.

(2) An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee—

(a) makes a claim for the payment by notice in writing given to the employer,

(b) refers to an employment tribunal a question as to his right to, or the amount of, the payment, or

(c) presents a complaint relating to his dismissal under section 111,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

(3) In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an [employment tribunal] shall have regard to—

(a) the reason shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1), and

(b) all the other relevant circumstances."

24. In this case the Chairman apparently considered that none of the requirements of section 164(1) were fulfilled within six months of 13 November 1998, ie by 13 May 1999, but that Mr Bates did fulfil section 164(2)(b), in that he had referred his claim to the tribunal within a further period of six months. In fact his IT1 is stamped as received on 15 July 1999, although it is dated 4 June 1999.
25. We observe in passing that Mr Bates' written observations to the tribunal of 6 September 1999 refer to a letter he had written to the respondents dated 21 January 1999 "enquiring about my entitlements". Had Mr Bates attended the tribunal, or produced that letter, it may be that he could have satisfied section 164(1)(b) by showing that he had made "a claim for the payment by notice in writing given to the employer" within six months of the termination of his employment. But since that letter was not produced, the Chairman was not in a position to consider that possibility.
26. In these circumstances what the Chairman had to consider, in accordance with section 164(2) and (3), was whether it was "just and equitable" that the employee should receive a redundancy payment having regard to (a) the reason shown by Mr Bates for failing to bring him claim within six months of his dismissal and (b) all other relevant circumstances.
27. Considering that the reason for the late presentation of the complaint was "far from clear" the Chairman dismissed Mr Bates' claim on the ground that the complaint was out of time.
28. What the Chairman had before him was Mr Bates' representations and, the documents annexed. In his representations Mr Bates said that after receiving no reply to his letter to Powertech of 21 January 1999:

"I contacted the local Citizens Advice Bureau who in turn told me to contact the DTI. The DTI acknowledged my claim form and stated they would contact my former employer. Please see exhibit No 1 from the DTI dated the 8^th April 1999. On the 12^th April I received a letter from my former employer please see exhibit No 2. That was the only correspondence I received from them.

On the 19^th May 1999 I contacted Mr Robinson of the DTI who told me that he had sent two reminders to Powertech and would now send out a third. On 1^st July I received a letter from the DTI, please see exhibit No 3. Following their advice I completed an IT-1 form and despatched it to you."

29. Mr Bates had thus contended that he had gone to the Citizens Advice Bureau, who had told him to contact the DTI. Mr Bates produced the DTI's letter of 8 April 1999 (ie still within the six months period) which states:

"Thank you for your recent claim for a redundancy payment.

This letter is to acknowledge receipt of your claim form and to let you know that further enquiries are being made with your former employer.

Once these enquiries are complete, I will let you know the position regarding your claim."

30. There then follows a letter to Mr Bates from Mr Riley of Powertech of 12 April 1999 sending him his P45 and P60, but saying nothing about redundancy payments, and a further letter to Mr Bates from the DTI dated 1 July 1999, also produced, which states:

"I refer to your application for a redundancy payment direct from the National Insurance Fund under section 166 of the above Act.

I am sorry to tell you that, on behalf of the Secretary of State, I must reject your application. This is because, under the Act, responsibility for making a redundancy payment lies with a person's former employer. However, your employer has either refused to accept liability for your redundancy payment, or acknowledged that a payment is due to you but he/she cannot afford to make the payment. That being the case, a payment cannot be made to you until you have taken certain steps to obtain it from your employer."

The letter then goes on to explain that Mr Bates should apply to an employment tribunal for a redundancy payment. This he apparently did soon afterwards, since the IT1 is stamped as received 15 July 1999.

31. It therefore appears that what Mr Bates did, apparently as a result of his visit to the Citizens Advice Bureau, was to apply direct to the Secretary of State for his redundancy payment, under section 166 of the Act. That section permits the Secretary of State to make a direct payment, either where the employee has taken all reasonable steps to recover the redundancy payment from the employer but the employer refuses to pay, or where the employer is insolvent.
32. In our view it was reasonably clear from the material before the Chairman that the applicant had sought at least information about a redundancy payment from his employers in January 1999; that he had gone to a Citizens Advice Bureau, who had apparently directed him to the DTI; that the DTI had acknowledged his 'recent claim' for a redundancy payment on 8 April 1999; that he had been told by Mr Robinson of the DTI on 19 May 1999 that two reminders had been sent to the respondents and that a third would now be sent; that he had finally received the letter from the DTI of 1 July 1999 intimating that the respondents had refused to pay and that, in consequence, he should proceed to apply to the employment tribunal; and that he did so no later than 15 July 1999.
33. On these facts we consider that there was sufficient material upon which the Chairman could properly consider, under section 164(2) and (3) that it was 'just and equitable' that Mr Bates should receive a redundancy payment. We do not consider that the Chairman's treatment of this issue, at paragraph 10 of the decision, sufficiently addresses the material we have referred to and does not, in our view, give adequate reasons for rejecting the complaint on the basis there set out, contrary to the principles of Meek.
34. In the light of those matters, we allow the appeal and remit the case for rehearing.
35. We would only add that applicants before employment tribunals must take appropriate personal responsibility for pursuing the cases they have introduced. Unfortunately, these appeal proceedings have been rendered necessary in part by Mr Bates' own absence from the hearing on 21 September 1999, which compounded the Chairman's difficulties. If he wishes to proceed from here, we trust that Mr Bates will take appropriate advice.