United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T PULLEN (of Counsel) Messrs Levenes & Co Solicitors 235-239 High Road Wood Green London N22 8HF


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of the appeal of the employee, Mr Goodchild, against the dismissal of his complaints or claims as set out in his originating application by the Employment Tribunal sitting at London South and chaired by Mr Lamb in a decision sent to the parties with extended reasons on 22 August 2000. In that originating application there were four claims, expressed as follows:

"Notice pay, redundancy pay, breach of contract, unfair dismissal."

The employers took the point that Mr Goodchild's claims were out of time.

2. The Tribunal's decision records that Counsel representing Mr Goodchild had accepted that the three month prima facie time limit on which the employers relied applied to the complaints of unfair dismissal, breach of contract and unlawful deduction of wages. It is clear that in giving its reasons the Tribunal believed that it was, in thus describing the complaints, embracing all of the complaints which the employee made.
3. The Tribunal thus had to turn to whether it was satisfied that it was not reasonably practicable for Mr Goodchild to present those complaints within the three month time limit. The Tribunal recited the evidence in some detail. Because of the form of the submissions which have been made to us on behalf of Mr Goodchild this morning by Mr Pullen, it is not necessary for us to go into any detail today. The chronology can be seen in paragraphs 4–19 of the Tribunal's decision. The Tribunal concluded that it was reasonably practicable for the originating application to have been presented within the three month limit. In so doing, it drew attention to the fact that the solicitors acting for Mr Goodchild had initially been instructed on 30 March, almost exactly a month before the three month time limit expired, had had their client care letter, signed by Mr Goodchild, in their hands on 12 April and had therefore, to summarise the views expressed by the Tribunal, sufficient time in which to present the originating application within the three month period.
4. The Tribunal went on to direct itself as to the principles to be applied by reference to three cases decided in the Court of Appeal including Palmer v Southend Council (1984) ICR 372 and in the light of those cases to consider whether it was reasonably practicable for the originating application to be presented within the three month time limit taking into account, and we quote from paragraph 24 of their decision:

"All the surrounding circumstances."

It may be of some importance that the Tribunal did not simply say that, because the solicitors had time to put in the originating application but failed to do so, it necessarily followed that Mr Goodchild was saddled with that failure but instead, consistently, with the authorities, treated that as a relevant factor in the factors which they had to consider (albeit, as is plain from the decision, they regarded it as an important factor).

5. The Tribunal's decision makes no reference at all to any issue relating to statutory redundancy payment; and since by its decision it dismissed all the complaints set out in the originating application, it dismissed any claim for a statutory redundancy payment, if there was one, without giving any reasons for so doing other than those reasons which it gives in relation to the complaints of unfair dismissal, breach of contract and unlawful deduction of wages.
6. On behalf of Mr Goodchild, two general areas of attack upon the Tribunal's decision have been developed. The first relates to the dismissal of Mr Goodchild's claim for a statutory redundancy payment on the basis that the originating application was not presented within the three months time limit or the time limit as extended. Secondly, the decision that it was reasonably practicable to have presented the originating application within three months is attacked on the basis that the principles upon which a Tribunal, according to the decisions of the Court of Appeal, must approach a decision on reasonable practicability conflict with Article 6 of European Convention on Human Rights, as adopted into English law by the Human Rights Act 1998 with effect from October of last year.
7. We will deal first with the statutory redundancy payments claim. The first page of the IT1, in which the words, "redundancy pay" plainly appear, do not define the nature of the claim in respect of redundancy pay which was being put forward. The words are capable of including both a claim for statutory redundancy pay and a claim for contractual redundancy pay, although it has to be said that it seems to us that, in the absence of any specific claim for contractual redundancy pay as opposed to statutory redundancy pay, there is unlikely to be any procedural ambiguity. In this case, the particulars of the originating application set out in the document annexed to the IT1 refer only to a claim in respect of a contractual redundancy payment; of one months salary for each years service, that contractual payment as claimed being of course greatly enhanced over what would be the more familiar statutory payment.
8. The employers denied dismissal and denied redundancy. It appears, so we are told by Mr Pullen, that at the hearing everybody focused on the three month time limit which was applicable to the unfair dismissal claim, to the claim for breach of contract and the claim for unlawful deduction of wages and that nobody, including the advocate appearing for Mr Goodchild, referred at all to statutory redundancy pay. The time limit for a claim for statutory redundancy pay is of course, one of six months; and if the originating application was a claim for statutory redundancy pay, it was in time.
9. After the decision the solicitors acting for Mr Goodchild asked for a review on the basis that a mistake had been made in relation to the time limit so far as statutory redundancy pay was concerned. The application for review was refused by the Chairman alone on the basis that it had no reasonable prospect of success. He said that there was no pleaded complaint of failure to pay a statutory redundancy payment and that the three months time limit applied by concession on the part of the Applicant's Counsel.
10. In this Appeal Tribunal it is not open to a party who did not take a point below to take it here, save in exceptional circumstances. Mr Pullen submits that that principle should not apply where the point is not one of argument but one which goes in effect to jurisdiction and that, having regard to the words of the IT1 and to the words of Section 164 of the Employment Rights Act 1996, the Tribunal was bound to consider, even though the claim for contractual redundancy pay failed because it was made too late, whether instead of contractual redundancy pay there might be a right to statutory redundancy pay. The Tribunal could not have assumed that statutory redundancy pay had been paid and that what Mr Goodchild was looking for was redundancy pay over and above the statutory redundancy pay because, of course, the employers were denying a redundancy at all.
11. While not in any way seeking to forecast what the ultimate result of this argument would be, we take the view that the point is at least arguable and should be developed at a full hearing. However, we would suggest to those representing Mr Goodchild and, when they see this judgment, to those representing the Respondents too, that they should consider carefully whether it is necessary actually to trouble this court with a substantive hearing of the appeal and whether the issue, limited as we have described it, is not one which could in some way be disposed of by a more consensual route.
12. We turn to the second area of the appeal namely, the effect of the Human Rights Act 1998 and Article 6(1) of the European Convention on Human Rights upon the Tribunal's decision to dismiss the claims, other than the statutory redundancy payment claim, because the claims were too late. The way in which Mr Pullen has put the point to us is as follows; firstly he submits that the Employment Appeal Tribunal seized with this case should take into account the effect of the Human Rights Act 1998 although: (a) the relevant events and (b) the decision of the Tribunal occurred before the 1998 Act came into force. He further submits that, because the Act has come into force since then, he is not to be defeated by the argument that no point on the Human Rights Act or on the Convention was taken before the Tribunal. He submits that it is the duty of the Appeal Tribunal to take cognisance of and apply the law as it now is. We are going to assume that that is right, or at least arguable for present purposes.
13. What then of the substantive effect of Article 6 of the 1998 Act? Mr Pullen does not submit that the requirements of a fair trial, as enshrined in Article 6, in effect mean that all the learning as to reasonable practicability and the principles established by the Court of Appeal over the years should be discarded. What he submits is this, that in this case, while the general tests established by the Court of Appeal survive Article 6 and the time limit itself does not conflict with Article 6, when one comes to compare the rule established for example, in the European Court of Human Rights decision in Stubbings v United Kingdom (1996) 23 EHRR 213 that a limitation provision should not be interpreted as restricting or reducing an individuals access to a fair trial as long as it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and aims sought to be achieved with the principle, central to the Tribunal's decision in this case, that a litigant is responsible for the failure of his solicitors or representatives to make the originating applicant within the necessary time limit. It is at the very least arguable that that principle established in domestic law is in conflict with Article 6.
14. In our judgement that is not arguable. We do not see it as being arguable in the least that that principle leads to a possible conclusion that the limitation provisions, applied as they are domestically according to the principles established by the Court of Appeal do not pursue a legitimate aim, or that there is not a reasonable relationship of proportionality between the means employed and the aims sought to be achieved. We know of no principle and none has been suggested to us that the common approach, at least in English law (we cannot speak for other jurisdictions but we would be surprised if there was a great difference), when looking at procedural matters and time limits to regard failure on the part of representatives as, unhappily, failure on the part of the litigant can be regarded as being in conflict with Article 6 and therefore we conclude that on this issue there is no arguable ground for appeal.
15. Accordingly, the appeal will go forward to a full hearing upon only the first ground to which we have referred, namely the claim of Mr Goodchild that the Tribunal erred in dismissing his claim for a statutory redundancy payment.