United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P EDWARDS (of Counsel) Instructed by: Messrs Boyd & Hutchinson Solicitors Brittania House 154 Tooley House London SE1 2TZ


 


MR JUSTICE KAY:

1. This case is today listed before us for a preliminary hearing. The background to the matter is as follows. The Appellant Mr King was dismissed from his employment as an Area Sales Manager in April 1999. On 30 July 1999 he lodged an application to an Employment Tribunal claiming that he had been unfairly dismissed and also claiming that he was the victim of a breach of contract. In that application on form IT1, he stated that his dates of employment were from 16 October 1989 to 31 October 1999. That latter date is now conceded to be unsustainable. In the details of the complaints, the solicitors who were acting for him said this:-

"The applicant had no contractual notice entitlement or obligations. On or about 20 April 1999 the applicant was informed that his position was redundant and that he would be dismissed with effect 30 April 1999."

In due course his employers lodged grounds of resistance to the claim. They stated the following: -

"The effective date of termination of the applicants employment was 30 April 1999 when he was dismissed and was paid in lieu of notice and other contractual benefits during the notice period. As is it maintained that the effective date of termination of the applicant employment was 30 April 1999, the applicant was out of time in making his application to the Tribunal which was received by the Tribunal on 30 July 1999."

The grounds of resistance went on to contend that, by reference to the employers handbook, the contractual entitlement to notice was on the basis of one week for each year of continuous service; and further went on to allege that in the event, the applicant had been given more than the statutory minimum notice and in fact, slightly more than he was contractually entitled to receive.

2. The matter was listed for hearing before the Employment Tribunal in Southampton on 19 October 1999. That was a date, which had been given to the parties some 5-6 weeks previously. The hearing was to determine a preliminary issue as to whether the application had been made out of time. The notice informing the parties of the dates of the hearing stated: -

"Unless there are wholly exceptional circumstances, no application for postponement due to non availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date."

The parties were also informed that they were at liberty to submit representations in writing and to advance oral arguments at the hearing. At 16.35pm on 18 October the Tribunal received a fax from the Appellants solicitors. It stated: -

"We refer to the above mentioned matter and the hearing listed for Tuesday 19 October 1999 at 9.45am. We write to confirm that agreement has been reached between both parties' solicitors that the hearing be adjourned to a further date, to be set by the Employment Tribunal. The adjournment has only just been agreed and no disrespect is intended by either party in vacating at such short notice."

3. The tone of that letter is such as to appear to assume that the parties were at liberty to grant themselves an adjournment if they both consented to it. That of course would be a grave misapprenhension. Quite properly the fax was treated by the Tribunal as an application for an adjourment. It was there and then placed before a Tribunal Chairman and he refused an adjournment. The precise details of the chronology as to that are a little uncertain. Mr Edwards tells us that it was the following morning, which was 19 October 1999, when there was some telephone contact between the Tribunal and the applicant's solicitors, in the course of which, the solicitors stated that the applicant was in Scotland and would not be attending the hearing and neither would the Respondent's solicitors, who proceeded to confirm their non-attendance by a fax at 10.51am on 19 October.
4. The solicitors acting for the Appellant did not attend the hearing nor did they submit any further documentation by way of argument or background material and it appears that the Tribunal converned on the morning of 19 October in an otherwise empty room and proceeded to determine the application. They dismissed the application on the grounds that they had no jurisdiction to hear it because it was not presented before the end of the period of 3 months, beginning with the effective date of termination. In the extended reasons the Tribunal stated: -

"The Tribunal convened on 19 October 1999 and in the absense of the parties and of any written representations determined the matter. It is for the applciant to satisfy the Tribunal that the application was submitted within the 3-month time limit and if it was not so submitted, that it was not reasonably practicable to submit within the time limit. The Tribunal is satisfied that in accordance with s.97 (1) (a) of the Employment Rights Act 1996, the effective date of termination was 30 April 1999 and the claim should have been received by 29 July 1999. The claim was not received until 30 July 1999 and accordingly, it was not received within the statutory time limit, nor did the Tribunal have any evidence to support the applicant's claim that he was entitled to 6 months contractual notice. Accordingly, the application was not received within the statutory time limit and the Tribunal has no jurisdiction to hear the originating application."

The appeal against that decision is put on the basis of two connected grounds. It is submitted that the refusal of an adjournment was a wrongful exercise of discretion and that the decision on lack of jurisdiction is flawed because it was made without the benefit of evidence and important documentary material. As to the latter, Mr Edwards refers specifically to the letter of dismissal and submits that it is inappropriate for the Tribunal to have reached the conclusion about the effective date of termination without sight of that document.

5. We have not had sight of that document either, even following an invitation to place it before us. It is important to approach this case in the light of the sequence of events as it unfolded. It must or should have been obvious to solicitors on 18 October 1999 that parties and their legal advisors have no right to grant themselves adjournments. An adjournment could only be granted upon application. On the basis of the information that was put before the Tribunal in the fax which arrived at 16:35pm on the day before the hearing, in our judgment it cannot possibly be said that it was a wrongful exercise of discretion to refuse the adjournment. The adjournment having been refused the hearing was bound to proceed, subject to the possibility of a further application for an adjournment at the commencement of the hearing. In the event however, the solicitors instructed on behalf of the Appellant (and as we have related the solicitors on behalf of the Respondents, but it is the position of the Appellant that is more important) chose neither to attend nor to send any further documentation to the Tribunal. Apparently a message was relayed that the applicant was in Scotland but beyond that no further explanation was put forward, no further application for an adjournment was made, no details were given as to the reasons for his presence in Scotland and no documentary material was placed before the Tribunal.
6. In our judgement and in those circumstances, the Tribunal which sat on 19 October cannot be faulted for proceeding to deal with the matter on the day. When it proceeded to deal with the matter on the day, all it had before it was the IT1 and the document containing the grounds of resistance. It could have had other material before it. The fact that it did not do so must lie at the door of the parties or their legal advisors. In that documentary material the effective date of determination is referred to in a number of ways: First there is the reference to the admittedly unsustainable date of 31 October 1999. Secondly, there is the reference in the detailed pleading in the IT1to the dismissal being "with effect 30 April 1999." Thirdly, there is the contention on behalf of the Respondent that the effective date of determination was indeed 30 April 1999.

On behalf of the Appellant Mr Edwards submits that if there had been a hearing attended by the parties and their legal advisors, the case advanced on behalf of the Appellant would have been that the effective date of termination was 9 July 1999; a date which does not appear in the documents before the Tribunal. Apparently, the rationale for that date was that although in other respects the Appellant was dismissed and paid in lieu of notice up to 30 April 1999, he retained certain benefits arising from his employment by agreement until 9 July. These included the use of a company car and a company telephone.

7. In our judgment this case admits of a very straightforward conclusion. We do not think it remotely arguable that the Tribunal erred in law in refusing the adjournment. It follows that the Tribunal did not err in law in proceeding to hear the application. It dealt with the application by reference to all the documents that were before it. The parties and especially the Appellants had not seen fit to place before the Tribunal any written representations or to advance oral arguments on 19 October, although that was a possibility available to them. We are unimpressed by the suggestion that the solicitors had no instructions to attend on that day and were not or might not have been funded for that purpose. That was the date of the hearing that had been known for some weeks.
8. In all of the circumstances, we can find no arguable error of law in the way in which the Tribunal approached this case, either in respect of the refusal of the adjournment or in the conclusion which they reached on the material before them as to the effective date of termination. In our judgment this appeal has no arguable prospect of success and it is dismissed at this stage.