United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J N GALBRAITH-MARTEN (OF COUNSEL) INSTRUCTED BY: MESSRS K ZAMAN ALI & CO SOLICITORS 409 - 411 BRIXTON ROAD LONDON SW9 7DE
For the 1ST Respondents For the 2nd Respondents	MR J SWIFT (OF COUNSEL) INSTRUCTED BY: MR S MORGAN SOLICITOR LONDON REGIONAL TRANSPORT 55 BROADWAY LONDON SW1H 0DB MR D WAGSTAFF SOLICITOR DAVID WAGSTAFF & CO 19 THE AVENUE MARCH CAMBRIDGESHIRE PE15 9PS


 


JUDGE SMITH:-

1. This is an appeal against the decision of the Tribunal, at that time an Industrial Tribunal, sitting at London South on 5^th May 1998, by way of an appeal by Mr Boamah and many other applicants whereby the Tribunal held, unanimously, on one of the two preliminary issues that it addressed, in addition to an issue on costs, that the complaints made to the Tribunal by the Applicants of a failure by the Respondents to notify and consult in relation to a scheme in December 1993, which complaints were made under Regulation 11 of the TUPE Regulations 1981, were out of time and accordingly stood to be dismissed for that reason. The Tribunal expressed themselves in this way namely that the unanimous decision of the Tribunal was that in any event the complaint was out of time and the Tribunal was not of the opinion that the complaint was brought within a reasonable further period of time.
2. We have had the benefit of very skilled argument by counsel on both sides (supported of course by Mr Wagstaff in the case of Mr Swift) from Mr Galbraith-Marten on behalf of the Appellants and from Mr Swift on behalf of the first Respondents and we have been greatly assisted by those submissions. There are two grounds of appeal, one relates to a European point, as we can call it, shortly, which we do not give any decision in relation to because we have not heard full argument on that point. With regard to the appeal on the time point, we concluded, in agreement with counsel earlier in the day, that it was sensible for us to hear full argument on that ground because it is necessary for the Appellants to succeed on both grounds in order to succeed on the appeal and, accordingly, it seemed appropriate and in the interests of justice that we should hear full argument on the time point, and that it how we have proceeded, and we have reached unanimous conclusions in relation to the time point issue and ground of appeal.
3. To put the matter into context, it is common ground and it is the law that to be within time under Regulation 11(8) of TUPE, the complaint has to be made before the expiry of three months after the date on which the relevant transfer is completed or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to present a complaint within three months. Here, the complaints made by the Appellants of non notification and non consultation were based on an alleged transfer, that is what was assumed to be a transfer for the purpose of the hearing before the Tribunal, which took place on or about 3^rd December 1993, or thereabouts. Accordingly, the complaints had to be made by somewhere around March or April 1994 to be within time, but the fact of the matter is, on the findings of the Tribunal and it is not in issue, that the complaints were not made until the 21^st January 1998.
4. On the face of it they were thus very well out of time. The Tribunal held that it was not reasonably practicable for the Appellants or their advisers to present complaints until April 1997 for the very good reason that that was the first time that either the Appellants or their advisers became aware of the existence of the 1993 scheme at all. However, the Tribunal then found as a fact, and in our judgment it is ultimately a question of fact, that it was not reasonable for the Appellants to have delayed after April 1997 for the period of about 9 months or so up until the 21^st January 1998 before presenting their complaints. Looking at the decision before we turn to the points raised on appeal, which we will come to shortly, it is clear that the Tribunal made important findings of fact at paragraph 15 of the decision, including relevantly a finding at paragraph 15(g) that:-

"The Applicants' Union became aware of the 1993 Scheme in April 1997 while pursuing the other IT cases and, had sought leave, to amend those proceedings accordingly".

And also a finding at paragraph 15(j):-

"Mr Ibekwe knew that a complaint had to be made to the Tribunal within three months of the relevant transfer. The Applicant was also aware in April 1997 his right to make a complaint to the Industrial Tribunal. The principal reasons for the delay in presenting the applications was to establish whether or not the TGWU was or was not consulted at or about the time of the 1993 Scheme and to await the outcome of the existing IT proceedings, in which it was argued that the 1994 privatisation constituted a relevant transfer. "

5. It was also apparent that a further excuse was put forward that there was a need to obtain legal advice in relation to the matter. The Tribunal went on to state its conclusions in relation to the time issue at paragraph 19(i) to (vi) of the Decision and in particular it found, at sub-paragraph (ii), that the fact that the time limit had long passed is a reason for immediate action not for a further delay, and at sub-paragraph (v):-

"The fact that the existence of the 1993 Scheme only became known in April 1997 is strong evidence of a lack of notification in 1993 by the first Respondent. From the moment the scheme became known, the complaints should have been presented."

6. It is then to be noted that, when dealing with the separate matter of costs, the Tribunal found, in dealing with a question of reasonableness of the conduct of the litigation with regard to costs, at paragraph 20, sub-paragraph (ii) as follows:-

"In April 1997, applications were made to amend the Originating Applications in those proceedings so that reference be made to the 1993 Scheme. The Application for Leave was granted on 3^rd June 1997."

and, at sub-paragraph (iii):-

"(iii) No application was made then or at the hearing that followed to add the claims made in these proceedings."

7. It is particularly with regard to that last recorded fact by the Tribunal in paragraph 20(iii) that the argument on this appeal is based with regard to the time limit, in that the submission is made that that finding of fact that is a misunderstanding of the factual evidence that the Tribunal had in front of them and amounts to either a misunderstanding of the evidence or a misstatement of the effect of the evidence by the Tribunal so as to amount to an error of law. That is the nature of the submission that is made and it is argued from that, that such error has the effect of vitiating the entire decision.
8. The first matter we have to consider in regard to that submission is what the appropriate principles are with regard to considering whether a decision is a perverse decision so as to give rise to an error of law, and we have listened carefully to a submission made to us by Mr Galbraith-Marten that a proper interpretation of the Court of Appeal decision in BT v Sheridan 1990 IRLR 27 leads to a conclusion, summarising the submission, that any misunderstanding of a primary fact by an Employment Tribunal can constitute an error of law at least if it plays a part in the Tribunal's eventual conclusions of fact. The submission was made that that is the correct interpretation of the Court of Appeal decision in BT v Sheridan. In our judgment, however, that is not the correct interpretation of the case of Sheridan. Lord Justice McCowan clearly rejected such an approach and we accept the submission made to us by Mr Swift on this particular point that the correct approach is to be found in the cases to which he referred us, namely Piggott Bros v Jackson 1992 ICR 85, particularly per Lord Donaldson at page 92 of the judgment between d-f, and in addition we received assistance from the approach of the Employment Appeal Tribunal in the case of Stewart v Cleveland Guess Ltd 1996 ICR 535 particularly with regard to the judgment given by the President in that case at pages 542 & 543 culminating in the following passage from the learned judge's judgment:-

"What matters is the substance of the Tribunal's decision looked at "broadly and fairly" to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they have won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse."

9. We consider that this authority supports the submission by Mr Swift that the correct approach is to look at the overall decision of the Tribunal and to see upon what factual matrix it is based, and then to look to see if there is material upon which the conclusions can be properly based. If so, there is no error of law, even if some subsidiary fact has been misstated or misunderstood. That test, of course, involves a question of degree and common-sense giving respect to the decision of an industrial jury on fact. That is the correct approach in our judgment and on that point we prefer the approach of Counsel for the Respondents.
10. Having said that we have nevertheless looked with care to see whether there is, in fact, any real ground for concluding, as Mr Galbraith-Marten sought to persuade us, that the Tribunal had misstated the facts relating to what had taken place with regard to the amendment of the earlier proceedings. There can be no criticism levelled at the finding in that regard at paragraph 15(g), nor can there be any criticism of the finding of fact made under paragraph 20(ii). As we said earlier, the target of criticism, and the sole target of criticism is in relation to the facts set out at sub-paragraph (iii) of paragraph 20 namely:-

"No application was made then or at the hearing that followed to add the claims made in these proceedings."

11. We have looked carefully at that finding in the light of the original documentation and we have concluded that on a proper consideration of the original documentation, relating to the way in which the matter proceeded, that although, as is recorded at pages 246-247 of the main bundle, it is clear that in the course of an argument put forward in support of the application for leave to amend which was obtained in early June 1997, it was forecast that there would be an application by way of amendment to rely upon the failure to consult under regulation 11 in relation to the 1993 scheme, as appears indeed from paragraph 1 (c) of that argument at page 247, the fact is, in our judgment, that when one comes to look at the amendment itself that was put forward, once leave had been obtained, which is to be found at pages 84-88 of the main core bundle, looking at that amendment and construing it fairly and not unduly strictly, there was no such plea made in that document. There is no clear reference to a claim being there made under Regulation 11 of TUPE.
12. Although the amendment is pleaded in a detailed and seemingly professional manner, the nearest approach to any reference to such a claim is perhaps to be found in the "Addition" at page 88, but in our judgment that paragraph does not amount to the pleading of a claim under Regulation 11 in relation to any failure of notification or consultation with regard to the 1993 scheme. Thus, we conclude that Mr Swift is correct in submitting to us that the reality is that the finding made by the Tribunal at paragraph 20(ii) is a justifiable and reasonable finding and does not show any error of primary fact at all so that we conclude that the argument for the Appellants falls away on that basis.
13. Even if that approach be wrong and the correct inference is that the Tribunal should have found as a fact, contrary to the documents as we interpret them, that an application was made to add the claims made in the earlier proceedings for breach of Regulation 11, and a proper amendment was put forward in that regard, we do not consider that on a proper application of the principles relating to perversity which we have attempted to deal with earlier in this judgment, the Tribunal's decision can properly be impugned. In our judgment, here again, Mr Swift is correct in his submission to us that when the decision is looked at in accordance with the guidance given by Mr Justice Mummery (as he then was) in the case of Stewart, there is much other material, apart from the disputed question of primary fact, upon which the decision to conclude that the applicants had acted unreasonably in not presenting their complaints before January 1998 was properly based. Thus there are strong findings made, particularly in paragraph 19 sub-paragraph (ii) and paragraph 19, sub-paragraph (iv) and in our judgment it is quite clear that decision that the delay was unreasonable between April 1997 and January 1998 was founded on material which was sufficient to justify that conclusion of fact.
14. There were a number of reasons put forward for the delay. First of all along the lines that the Appellants or their advisers did not wish to issue proceedings until they were certain that the TGWU had not been consulted. Secondly, that they needed to take legal advice, and, thirdly, admittedly, that they were awaiting the outcome of the existing Industrial Tribunal proceedings in which it was being argued that the 1994 privatisation constituted a relevant transfer. It was only, in our judgment, in relation to the third strand of the various excuses that were being put forward for the delay, that the disputed question of whether those proceedings had been amended, to add the present claims assumed any significance, so that it was only one out of three separate matters which the Tribunal had to consider.
15. The findings in relation to the first two strands, and the Tribunal's rejection of the excuses put forward in relation to those matters, strongly supported the Tribunal's overall conclusion and, in our judgment, applying an overall common-sense approach to the decision made by the Tribunal here, it is not justifiable to seek to pluck out an alleged misunderstanding relating to a third strand of argument as undermining the fabric of the whole of the decision on the basis of such a slender thread. For those reasons, we have concluded that this appeal fails and falls to be dismissed on the time point.