United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KORN (of Counsel) Instructed by: Messrs Coningsbys Solicitors 87/89 High Street Croydon CR9 1XE


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of the Appellant's appeal against a decision of the Employment Tribunal at London North, chaired by Mrs Prevezer, and promulgated with extended reasons on 8 March 2000. Because we are intending to allow this appeal on some of the grounds put forward by Mr Korn, on behalf of the Appellant, to go through to a full hearing, but not on others of the grounds which have been put forward, it is necessary to say a little bit about it.
2. The Appellant was employed by the Respondent as a Practice Secretary. By her Originating Application she claims that she was constructively dismissed by the Respondents, and by implication at least, that she was the victim of racial discrimination. The Tribunal dealt with the case on the basis that the claims of both unfair dismissal and of race discrimination were properly made.
3. The Tribunal identified that there was a preliminary issue as to whether or not the claims had been presented within the relevant statutory time limits and ordered a hearing of that preliminary issue. It is from the determination of the Tribunal, on that issue, against the Appellant, that she now seeks to appeal.
4. The Tribunal decided that her claim was outside the statutory time limits on the following basis:

(1) Her employment terminated, as the Tribunal found, on 29 January 1999.

(2) Her claims were presented on 29 April 1999 and therefore were one day too late.

(3) It was not just and equitable to extend the time for the presentation of the Appellant's race discrimination claim.

(4) It was reasonably practicable for her to have presented her unfair dismissal claim within three months.

5. Essential to this decision, at least other than in the case of the exercise of discretion as to whether or not time should be extended, was the finding that the Appellant's employment ended on 29 January 1999. If it ended even one day later, then her complaint, at least of unfair dismissal, was in time.
6. The first ground of appeal is that her employment ended not on 29 January but on 31 January 1999, albeit that her last day of actual working was 29 January of that year which was a Friday. The process by which the contract of employment came to an end was started by a letter from the Appellant to the Respondents, dated 11 January 1999, in which she said that she was resigning on one month's notice, which would have expired on 10 February. On 15 January, the Respondents wrote back to her recording that there had been an agreement made for her to leave "at the end of January", with her last working day being Friday 29 January. The letter also said that her salary would be paid to the end of January.
7. So far as unfair dismissal is concerned, the relevant period pursuant to section 111(2) of the Employment Rights Act 1996 is three months from the effective date of termination as defined by section 97(1). Clearly the effective date of termination in this case would originally have been the date on which the notice, given by the Appellant, was to expire: 10 February. The parties may agree an earlier date, and if so, it may well be that the earlier date becomes the effective date of termination. But if so, submits Mr Korn, on behalf of the Appellant, the effective date of termination agreed in this case, was not Friday 29 January, but Sunday 31 January, that is to say the end of January to which date it seems, to us at least at this provisional stage, the letter of 15 January was intending to refer; and that appears again, at this provisional stage, to be confirmed by the P45 form given to the Appellant which gives the date of 31 January as the date on which the employment ended. In our judgement, it is plainly arguable that the effective date of termination was not 29 January but 31 January and therefore, so far as that ground of appeal is concerned, the Appellant should have the right to pursue it at a full hearing of her appeal.
8. So far as the Race Relations Act is concerned, the relevant period is three months from the act of discrimination complained of, as section 68 of the Race Relations Act provides. The Tribunal does not seem to have asked itself when the act of discrimination complained of occurred. It is at least possible that the Appellant's allegations of discrimination will be found to have amounted to a continuing act; the question as to whether they do or do not has not yet been raised or decided. If the allegations amount to a continuing act, and if, as appears to be at least possible, they continued through the period of notice, then the end of the continuing act would, as a matter of fact, have been 29 January, that being the last day on which the Appellant actually worked; but Mr Korn argues that for the purpose of section 68(7) of the Race Relations Act, the last day of the period, and that is the expression used in the Act, should be taken to have been not 29 but 31 January. He points out that if Saturday and Sunday, or other days on which an employee is not actually working do not count, then continuing acts will always be broken up by such days, and that cannot be the law. With some hesitation, we think that it is arguable that the end of the period was 31 and not 29 January; and if so, the claim was presented within the 3 month time limit. So on the pure basis of calculation of, in one case, the effective date of termination, and in the other case, the end of the period, we think that this case should go for a full hearing of the Appellant's appeal.
9. Next, Mr Korn argues that an agreement between employer and employee to abbreviate a notice period may not, in law, have the effect of bringing the effective date of termination forward from the date on which the notice originally expired, to the earlier agreed date. If that be right, then again, the claims would have been presented in time. Mr Korn refers to paragraph D 1721 in volume 1 of Harvey and to the reference there to a decision of the Court of Appeal in TBA Industrial Products v Moorland [1982] IRLR 331 in which the Court of Appeal appears so to have held, albeit in a case involving an employer's and not employee's notice. That decision may or may not have been reached in conflict with earlier, or possibly subsequent, decisions. Of course at this stage, we cannot begin to consider whether any one authority is out of line with, or reached in ignorance of other authorities. It would appear to us from the paragraph cited to us, however surprising it may seem, that this point too is arguable; we say nothing at all of course about whether eventually it will or will not succeed.
10. The next point which Mr Korn argues is that the agreement between the parties to change the notice period, so as to bring forward the effective date of termination, was void by virtue of section 203(1) of the Employment Rights Act, the provision which renders void agreements, which to put it crudely, exclude the operation of the Act. He says that the agreement to shorten the notice period was void because it excluded or limited the operation of the provisions within the Act as to the length of employment as to the calculation of compensation and matters of that type. In our judgement this argument is not one which is properly arguable; and it should not go forward for a full hearing. An agreement to shorten notice does not, in our judgment, of itself purport to exclude the operation of any provision of the Act, it merely shortens, if it does, the notice period and may, as a consequence, lead to a shorter period of employment in total; and that, as a consequence, may mean that an amount of compensation, or an amount of continuous employment may be the lesser; it does not follow from that that the agreement is itself excluding or limiting the operation of any provision of the Act.
11. The last area in which arguments have been presented to us by Mr Korn relates to the Tribunal's consideration of the exercise of its discretion to extend the time under both jurisdictions i.e. under section 111 of the Employment Rights Act, so far as the unfair dismissal claim is concerned, and section 68 of the Race Relations Act, so far as the race discrimination is concerned. Mr Korn does not criticise the Tribunal's conclusion that it was reasonably practicable so far as the unfair dismissal complaint is concerned for that to have been presented before the end of the period of three months, and we say no more about it.
12. So far as the Race Relations Act is concerned, the jurisdiction is a different one because the Tribunal has to consider whether it is just and equitable to extend the time; and that arguably involves a broader range of factors and a broader consideration overall than that which arises under the Employment Rights Act.
13. Mr Korn takes two points. Firstly he says that, on the face of its decision, the Tribunal does not appear to have taken into account all the factors that it is necessary to take into account when considering whether it is just and equitable to extend time under the Race Relations Act; and in particular it has not taken into account, for example, the extent to which extending the time would have prejudiced the position of the employers. We say no more about that. We think that that ground is arguable and therefore it is not necessary or helpful for us to comment further about it.
14. Mr Korn's second point is that when the Tribunal, in paragraph 10 of its decision, found the facts as to the history of what was happening between the termination of the employment and the presentation of the Originating Application, while it refers to the Appellant's attending a legal advice centre to obtain advice, and obtaining an Originating Application form to enable her to present it to the Tribunal, it makes there no finding of fact as to when that had happened. But when it came to consider, in paragraph 12 of its decision, whether or not it was just or equitable to extend the time limit, there it appears to have proceeded on the basis that the form had been given to the Appellant by a legal adviser some time in March. Mr Korn says that that was not found as a fact in the earlier part of this decision, and therefore there is an inconsistency. We see no such inconsistency. There is no date at all specified for the obtaining of the advice on the form in paragraph 10; that is left open. There is no reason at all why the Tribunal could not, with complete propriety, fill in the gap as to when that advice was given and the form obtained in paragraph 12, when it expressed its decision on the just and equitable issue. Therefore that argument, we think, is not one which should go for a full hearing.
15. This case will go for a full hearing on the points which we have said are arguable and not on those which we have said are not arguable. Mr Korn has asked us to order that we should obtain the Chairman's Notes at least of the evidence which went to what appears in paragraph 1 of the Tribunal's decision, where it is stated that the Appellant had, in evidence, confirmed that the termination of her employment took place on 29 January 1999. Mr Korn says that we do not know precisely what she said. It is true that we do not know precisely what she said; but it is equally true that we do not know precisely what questions she was asked; and it is extremely unlikely that the notes will tell us what questions she was asked. The answer cannot, in our judgment, be taken to exclude the argument which Mr Korn wishes to put forward, especially when the question that she was asked, at least from the decision, and almost certainly from the notes, will not be discernible. In our view there is no proper justification for ordering the provision of the Chairman's Notes in this case.
16. Finally, Mr Korn wishes to amend the Notice of Appeal and has presented us with an amended Notice, which in one respect he wishes to change further. We allow him to amend the Notice of Appeal as he seeks subject to the following comments.
17. The further amendment that he wishes to make will indeed have to be made, because it relates to a ground which we have said is arguable. It may be thought best to tidy the Notice of Appeal up by excluding those grounds which we have said are not arguable; limiting it to the grounds which we have said are arguable and thus making the position clear before whichever division of this Tribunal hears the ultimate appeal. We think that it would also be better if paragraph 6(a) of the proposed amended Notice of Appeal were divided up into two sections so that the ground is put forward separately in relation to the unfair dismissal jurisdiction on the one hand, and the race discrimination jurisdiction, on the other. We give leave for the Notice of Appeal to be amended as we have indicated, and we would ask that that amended Notice of Appeal be put before the Tribunal in 14 days.