United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PHILIP DELAFIELD (of Counsel) Instructed By: Ms J F Dyson PPC Consultants Ltd Enterprise House Great North Road Little Paxton Cambs PE19 4BQ
For the Respondent	MR CHARLES CROW (of Counsel)


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us the appeals of CEX Games Ltd. It is an unusual pair of appeals, interlocutory as to part and in part a preliminary appeal on a more substantive decision. Mr Delafield has appeared for the Appellant, CEX Games Ltd, and Mr Crow for the Respondent former employee, Mr D.M.J. Moore.
2. The position is that on 3 December 1999 Mr Moore lodged an IT1 claiming unfair dismissal and claiming that his period of employment was from May 1997 to September 1999. On the face of things the IT1 could have been either in or out of time depending on whether the effective date of termination was before or after 3 September 1999 because claims of this character have only three months in which to be lodged.
3. On 24 December CEX's IT3 asserted that the claim was out of time, saying that Mr Moore's last day worked was 29 July 1999 and saying that he had been given four weeks' paid notice on 22 August 1999. They requested a preliminary hearing.
4. On 2 May the Company addressed a written argument to the Employment Tribunal on the point and they said:

"We submit that the Applicant's effective date of termination was 29 July 1999, this being the last day on which he worked for the Respondent. He was told that he would not be required to work the four weeks between 29 July and 22 August 1999 but that he would be paid for this period. He was issued with a P45. The P11D and P45 erroneously give a later termination date of 22 August 1999."

5. On 3 May there was hearing at the Employment Tribunal. The Company did not attend, nor was it represented; it simply relied upon that written argument. Mr Moore did attend and, I think, was represented and gave oral evidence on whatever subjects the Tribunal thought appropriate. On 24 May Summary Reasons were sent to the parties.
6. On 30 May the Company asked for Extended Reasons and also asked that the merits hearing that had been fixed for 5 July should be adjourned. Mr Delafield says today that there is a conflict between the Summary Reasons and the Extended Reasons which we will come on to, but, if there is, which we are not certain about, it is in any event the Extended Reasons to which the Employment Tribunal looks. They are what triggers the ability to appeal.
7. On 1 June the Tribunal refused to adjourn the merits hearing and on 12 June the Company put in a Notice of Appeal against the refusal to adjourn the merits hearing. On 14 June the Extended Reasons were given to the parties. The Tribunal had sat under the chairmanship of Mr I.H. Edwards at Birmingham and the unanimous decision of the Tribunal was "that the Originating Application was presented in time, and accordingly, the case will proceed to a full hearing on 5 July 2000". That was followed on 16 June by a Notice of Appeal by CEX as to that decision, asserting that Mr Moore's claim was out-of-time.
8. So it is in that way that we have before us an interlocutory appeal as to the failure to adjourn the merits hearing fixed for 5 July and we also have a preliminary hearing in the ordinary way as to the decision that Mr Moore was in time.
9. To take, first of all, the point about whether or not Mr Moore's claim was in or out of time (and remembering, as we must always remember, that the Employment Appeal Tribunal deals only with points of law) we note, of course, that the Tribunal heard evidence and, having heard that evidence - and it was, of course, unopposed because no one turned up to oppose it - the Tribunal held that on 9 August Mr Moore was told that he would get one month's notice and that later further dates were mentioned. The Tribunal held that in relation to a conversation on 9 August Mr Lewis, who is on the employer's side, did not seem interested and indicated after some further discussions that the Applicant would "get one month's notice".
10. Continuing with the findings of the Tribunal, the Applicant asked for a letter of confirmation, together with his P45. After several attempts the P45 materialised on 23 September 1999 and such P45 stated the Applicant's "Leaving date" was 20 September 1999. Further, by letter dated 2 May 2000, the Respondent's representatives produced what purported to be a copy of a P45 stating that the Applicant's leaving date was, in fact, 22 August 1999. In the premises the Tribunal could not accept that either date was correct, given the terms of the conversations between the Applicant and Mark Lewis on or about 9 August 1999. Because of such conversation, as aforesaid, the Tribunal concluded the Applicant was given a month's notice terminating on or about 5 September 1999.
11. The three months during which a claim must prima facie be lodged, if it is to be within time, runs from the so-called "effective date of termination". That is provided by section 111 (2) (a) of the Employment Rights Act 1996 and that is a defined date: see section 97 of the Act which provides the meaning of the expression for the whole of part 10 of the Act which includes section 111. The effective date of termination is defined by section 97 (1) as follows:

"(1) Subject to the following provisions of this section, in this Part 'the effective date of termination' -

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires."

12. The effective date of termination was therefore, on the Employment Tribunal's findings of fact, 5 September 1999 and accordingly the Tribunal went on in their paragraphs 3 and 4 as follows:

"3 By section 111(2) of the Employment Rights Act 1996 a complaint of unfair dismissal must be presented to a tribunal before the end of the period of 3 months, beginning with the effective date of termination which the tribunal has found as a fact was the 5 September 1999. Accordingly, the originating application, having been presented on the 2 December 1999, was presented within the 3 months prescribed by section 111(2) of the Employment Rights Act 1996.

4 Accordingly the tribunal does have jurisdiction to hear the applicant's complaint which is fixed for hearing on 5 July 2000."

13. Unfortunately, the Appellant has failed to grasp that time in a notice case runs not from the last day worked, which was asserted in their written argument, but from the expiry of the notice as section 97 provides and that date was found, as a fact, from unopposed evidence given at a hearing at which the Company neglected to attend. We see no arguable error of law in the Tribunal's decision on this part of the case and we dismiss the appeal even at this preliminary stage on that part of the case.
14. We now turn to the interlocutory appeal. Did the Tribunal err in law in refusing to adjourn the merits hearing which has been fixed for 5 July? The only reason, as we can understand it, why there should be an adjournment was in order that the case could be taken, the case we have just dealt with, to the Employment Appeals Tribunal and we have now dealt with that and, of course, CEX has lost that part of the case. There seems now no reason to delay the merits hearing and we have not understood Mr Delafield to advance any independent argument, independent of the decision in the out-of-time aspect of the case. Accordingly, we dismiss the interlocutory appeal also and the parties should now therefore prepare for the merits hearing on 5 July 2000.
15. I should say that at a late stage we have been handed, in the course of Mr Delafield's reply, the photocopy of the authority R.J. Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379. We have not called upon Mr Crow to deal with it because two things appear. First of all, of course, the case is an old one, 1973, and the legislation may have changed since then and we have not been able to find, in the short time afforded to us, what the position was in the statute as it applied in 1972, which was the actual date of the facts in that case. But we have not needed to see those because, in any event, in our case there was a finding of notice having been given and in the light of the current provisions of section 97, as we have cited them, that seems conclusive given the finding of fact and so we have not needed to enquire further into R.J. Dedman as an effective current authority.
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COSTS APPLICATION

16. So far as costs are concerned, we feel that the estimate that has been put in, which, of course, covers both aspects of the case, is in a sense inappropriate in that it is only the interlocutory appeal as to the adjournment that truly justified attendance on the Respondent's part.
17. In the ordinary way the other aspect, the out-of-time aspect, being a preliminary hearing, would not have excited the presence of a Respondent in any case and I think we have to bear that in mind when we turn our minds to costs. But, turning our minds to costs with that in view, we think the appropriate order would be that CEX Games pay Mr Moore £300.
18. We recognise that that is considerably less than the £1,524 odd which are sought but we think it is an appropriate award, looking to the interlocutory hearing as being the principal hearing as to which the Respondent was entitled to attend.