United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MISS HELEN MOUNTFIELD (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR JUSTICE LINDSAY (PRESIDENT): This is an appeal of Mr H R James in the matter James v The Meteorological Office. It is, as far as we know, the first case involving consideration of the Reserved Forces (Safeguard of Employment) Act 1985 ('the 1985 Act'). Before us today Mr James is in person but we have received a written argument provided on Mr James' behalf by Mr Tim Nesbitt, under a pro bono basis, and we are very grateful for the help that he has given both to us and to Mr James. The Meteorological Office appears by Miss Mountfield.

1. On 16th October 2000 the reinstatement committee, which is a body constituted under section 8 of the 1985 Act, dismissed Mr James' application but gave leave to appeal to the Umpire. I sit here today as the Umpire appointed under the 1985 Act, sitting with two assessors, also appointed under 1985 Act.
2. Unlike the role when we sit at the Employment Appeal Tribunal, where we are restricted to questions of law, we are, not expressly at any rate, restricted to questions of law when we sit as Umpire and assessors.
3. But before we descend to the detail of Mr James' case, we must say something of the legislative background.
4. At a time when the Crown was, no doubt, anxious to put no impediment at all in the way of men and women serving in the defence of the realm and associated requirements related to national defence and at a time when many men and women so serving would, no doubt, have been anxious about going back to their former employment, there was passed the Reinstatement in Civil Employment Act 1944 and under that Act there were made the Reinstatement in Civil Employment Procedure Regulations 1944, which prescribed forms as to applications and also prescribed some time limits.
5. The Regulations prescribed machinery under which those who felt they had a right to reinstatement which was not honoured could have their cases ruled upon by the Reinstatement Committee with appeal to an Umpire sitting with assessors. The very fact that even in 1944 an Act of Parliament was needed to confer these rights shows that there were no corresponding rights available under the common law at the time.
6. In 1985 there was passed the Reserved Forces (Safeguard of Employment) Act 1985. We will need to make extensive reference to the Act and to the Regulations concerning the Act. We will not read the original section 1(1)(a) because it was amended. The current section 1 of the 1985 Act reads as follows:

"This section applies to any person who is in permanent service under-

(a) Part IV (special agreements for call out) or Part V (special members) of the Reserve Forces Act 1996;

(b) a call-out order under Part VI of that Act (orders authorising general call out of members of reserve forces); or

(c) a recall order under section 68 (recall of officers and former servicemen) of that Act."

Subsection (1A):

"In this Act "whole-time service" means permanent service to which this section applies."

Subsection (2) says this:

"Where such a person applies to his former employer to be taken into employment, the former employer shall, so long as the application remains in force, be obliged to take the applicant into his employment-

(a) in the occupation in which the applicant was last employed by the former employer before beginning his whole-time service and on terms and conditions not less favourable to him than those which would have been applicable to him in that occupation had he not entered on such service …"

We do not read the rest of subsection (2) or, indeed, any other part of that section 1. Section 2 defines "Former employer" as follows:

"(1) In relation to a person who has entered on a period of whole-time service, in this Act "former employer" means the employer by whom he was last employed within the period of four weeks immediately preceding the beginning of his whole-time service.

…"

Then the Act turns to how one is to invoke the protection or rights which the Act confers. Section 3 is headed "Application for reinstatement":

"(1) An application under section 1-

(a) is of no effect unless it is made in writing;

(b) may be made by the applicant or by some person acting with his authority.

(2) Such application is of no effect unless it is made during the period-

(a) beginning with the end of the applicant's whole-time service, and

(b) ending with the third Monday after the end of the applicant's whole-time service,

subject to subsection (3).

(3) Such an application made after the end of that period is not invalid because of subsection (2) if-

(a) the applicant was prevented from making it within that period by his sickness or other reasonable cause [we will have to come back to that expression]; and

(b) the application was made as soon as reasonably may be after the expiry of that period.

(4) [This is a provision of some materiality] Such an application ceases to have effect on the expiry of thirteen weeks from the date of its making, except that-

(a) while the application is still in force it may from time to time be renewed in writing by the applicant or by some person acting with his authority, and, if it is so renewed, does not cease to have effect by virtue of this subsection until thirteen weeks from the date of the renewal, and

(b) if, at the time when the application would otherwise cease to have effect, proceedings for the determination of any question affecting the application are pending under this Act, the application does not cease to have effect by virtue of this subsection until fourteen days after those proceedings have ceased to be pending,

and for the purposes of paragraph (b) proceedings shall not be treated as having ceased to be pending until the time for appealing has expired or, where an appeal is brought, until the appeal is decided or withdrawn.

(5) An application under section 1 or any renewal of such an application may be made either-

(a) directly to the former employer, or

(b) in the prescribed manner at any such local office as may be appointed by the Secretary of State, or, in Northern Ireland, by the Department of Economic Development,

and where any application or renewal is so made or given at such a local office it is the duty of the Secretary of State, or, in Northern Ireland, of the Department of Economic Development, to take such steps as may be practicable to forward it to the former employer."

Section 8 of the 1985 Act then prescribes what is to be done if the application to the employer, or made by way of the local office indirectly to the employer, has failed to yield the reinstatement of the person claiming the right. Section 8 is headed "Applications to Reinstatement Committee":

"(1) A person-

(a) who has, or claims to have, entered upon a period of whole-time service, and

(b) who claims that he has rights under section 1, 3, 4, 5 and 7 (the "relevant sections") which are being or have been denied him,

may, within the prescribed time, apply to a Reinstatement Committee for the determination of any question relating to his rights, if any, under the relevant sections, and the Reinstatement Committee shall determine that question.

(2) Where the Reinstatement Committee are satisfied that default has been made by the application's former employer in the discharge of his obligations under the relevant sections, the Reinstatement Committee may make either or both of the following orders as is in their opinion appropriate, having regard to all the circumstances of the case and the nature and extent of the default-

(a) an order requiring employment to be made available to the applicant by his former employer on such date, in such occupation, on such terms and conditions and at such place as may be specified in the order, being employment which, in the Reinstatement Committee's opinion is such as is required by the relevant sections to be made available to the applicant;

(b) [provides provision for compensation].

(3) Schedule 2 has effect as to Reinstatement Committees and the umpire and deputy umpires, and Schedule 3 as to the orders of Reinstatement Committees."

There is a provision for appeals under section 9:

"(1) An appeal may, within the prescribed time, be brought from any determination or order of a Reinstatement Committee under section 8, as from the refusal of a Reinstatement Committee to make an order, to the umpire or a deputy umpire at the instance-

…

(c) either of the employer concerned or the applicant-

(i) without leave in any case …

(ii) with the leave of the Reinstatement Committee …"

…

(3) In considering how to exercise his powers under subsection (2), the umpire or deputy umpire shall, where there has been any change in the relevant facts since the date of the hearing before the Reinstatement Committee, have regard to the facts existing on the date of the hearing before him.

(4) When considering an appeal under this section the umpire or deputy umpire shall sit with two assessors appointed by the Secretary of State. [Then there is provision if one or both of the assessors is not present.]"

There is a power under the 1985 Act to make Regulations. Section 19 says:

"(1) The Secretary of State may make regulations-

(a) regulating the procedure to be followed in connection with applications to Reinstatement Committees and appeals to the umpire or a deputy umpire, fixing the quorum of such committees, and regulating the circumstances and the manner …"

The footnote to section 19, in the edition of Halsbury's Statutes from which I am reading, says:

"Regulations under this section. Up to 1 June 1985 no regulations had been made specifically under this section for the purposes outlined in sub-s (1)(a), (b) above, but see, by virtue of s 21(1) post, the Reinstatement in Civil Employment (Procedure) Regulations 1944 … which were made under the Reinstatement in Civil Employment Act 1944, s 16 (repealed)."

There is a definition section in the 1985 Act. "Permanent service" is defined to include "actual service, and calling out on permanent service includes calling into actual service". "Reserve or auxiliary force" is defined as meaning "the whole or any part of the Royal Naval Reserve (including the Royal Fleet Reserve), the Royal Marines, the Territorial Army, the Army Reserve, the Air Force Reserve, the Royal Airforce Volunteer Reserve or Royal Auxiliary Air Force". There is a provision there for "whole-time service" but that definition has been changed. The applicable definition for "whole-time service" is the one we read earlier meaning "permanent service to which this section applies". Amongst the provisions of the interpretation section, section 20, is subsection (4):

"For the purposes of this Act, a person who-

(a) attends for the purpose of entering upon a period of whole-time service, but

(b) has been notified that he will not be immediately required to take up duty,

shall not be treated as having entered upon a period of whole-time service until he reports for duty; and any period before he is required for duty during which he is required to attend for purposes connected with his entry upon a period of whole-time service shall be disregarded."

Section 21 of the 1985 Act says, at subsection (1):

"Regulations made under the Reinstatement in Civil Employment Act 1944 for the purposes of that Act continue to have effect for the purposes of the provisions of this Act as if those regulations had been made under section 19 of this Act."

Which is why the 1944 Regulations are still material. Schedule 2 to the 1985 Act prescribed the membership of the Reinstatement Committee and made provisions in relation to appeals therefrom. I do not think we need those; there has been no dispute about the constitution either of the Reinstatement Committee to which Mr James applied or, indeed, to us as the body to whom appeals should be directed.

7. Mr James was in a reserve force, as we shall see, and so we need to look briefly at the Reserved Forces Act 1996, so far as it is material for our present purposes. Section 50 of the 1996 Act prescribed the liability of members of reserve forces to be "called out". That section provides:

"(1) Members of a reserve force are liable to be called out under this Part for permanent service when any call-out order authorising the calling out of those members is in force.

(2) A call-out order authorises, subject to subsection (3), the calling out under this Part-

(a) of any members of a reserved force; or

(b) if the order is so limited, of any members of a reserve force of description specified in the order;

…

(4) A person who is in service under a call-out order shall serve until released from that service under section 60."

Release is provided for in section 60; we have it mind but we do not need to read it out.

8. Applications made to a Reinstatement Committee are prescribed under the 1944 Regulations. The side note reads "Applications to Reinstatement Committees" and rule 3 reads:

"An application by any person to a Reinstatement Committee under Section nine of the Act shall be in writing in the form set out in Part IV of the Schedule hereto and shall be sent to or delivered at a local office-

(a) in the case of an applicant who has been reinstated …

(b) in the case of an applicant who has not been reinstated, within a period of thirteen weeks from the date on which the applicant made an application for reinstatement or within thirteen weeks from the date of any renewal of any such application;

or within such further period as the Chairman of the Reinstatement Committee may in any particular case for good cause allow, and shall be decided by such Reinstatement Committee as the Minister may determine."

9. That is as much as we need of the legislative background. Summing it up for immediately relevant purposes, assuming a person is in the reserved forces and is called out but then wishes, on the expiry of his or her service, to revert to his previous employment and finds that he has to assert his statutory right in order to procure that he is taken back, what is it that is required of him? First of all, he must apply in writing. Secondly, the application must either be to the former employer or to the appointed local office. Leaving aside cases where there is sickness or reasonable cause for delay, thirdly, that application must be made at or after the end of his whole-time service. An application before the end of his whole-time service does not comply with the Act. Fourthly, the application must be made not later than the third Monday after the end of his whole-time service. Fifthly, an application will cease to have effect at the expiry of thirteen weeks from the date of its making, except for the purposes of its renewal within the thirteen weeks and except for special provisions where there are current pending proceedings.
10. With that background as to the legislation in the area, we turn to the facts of Mr James' case. On 14th October 1998 he was offered a casual appointment at the Meteorological Office from 20th October 1998. The Meteorological Office is a trading fund agency of the Ministry of Defence. His offer was expressed as "currently expected to end on 17 September 1999". On 20th October 1998 he was commissioned in the Operations Support Flight Operations branch of the RAF Reserve in the rank of Flight Lieutenant. On 31st October 1998 he was called out to serve in Scotland and was thereafter continuously called out, save for short intervals (which were presumably for leave); for example, on 31st March or 1st April 1999 he was called out to serve at Ali al Salem. The call-outs were under the Reserved Forces Act 1996 and were made as against him as part of the call-out of the Reserved Air Force.
11. It is plain that Mr James hoped and wished that his employment at the Meteorological Office would continue beyond its apparent prescribed termination of 17th September 1999 and he attended one or more interviews for Meteorological Office appointments whilst still called out and serving. Unfortunately, he failed the interviews and was first told that his employment would cease earlier than the original prescribed date of 17th September, namely, on 5th July 1999. Not surprisingly, he appealed against that and he was allowed to stay in employment. He was restored to the employment that had originally been offered him, namely down to 17th September 1999, but he was told that he would not be offered employment beyond that date. All this time be was still called out, serving finally, in Pristina, down to 10th September 1999, presumably leaving the last period, until 17th September, as a short period of leave. On 17th September 1999 he left service with the Meteorological Office and his service in the Royal Air Force Reserve ended on the same day.
12. Mr James felt and feels that he has been poorly treated by the Meteorological Office. It is no part of our reasoning that he has not been poorly treated. He applied to the Employment Tribunal claiming unfair dismissal on 7th December 1999. His claim included a claim to reinstatement. But he had not served a year. Unfair dismissal would therefore have appeared to be barred to him from the outset. But the Seymour-Smith case was then pending and his claim was at first stayed pending the outcome of Seymour-Smith.
13. On 30th May 2000 his claim for unfair dismissal was struck out as having no reasonable prospect of success and we are not told of any appeal against that striking out.
14. On 6th June 2000 he applied under section 8 of the 1985 Act to the Employment Tribunal at Reading. There has been no dispute but that that is the prescribed local office. He gave as his employer (or the employer concerned) the Meteorological Office of Bracknell in Berkshire.
15. On 19th June 2000 the Ministry of Defence, as employer, put in a Notice of Appearance. There are several grounds of resistance raised by the Ministry of Defence. Firstly, it asserted that it was open to the respondent (the Ministry of Defence or the Meteorological Office) to argue that the legislation conferred rights only on those who sought to be restored to civil employment and not a restoration to the kind of employment Mr James wished to be restored to. Secondly, it is arguable, says the Ministry of Defence, that the Act did not in any event bind the Crown as employer. We have not had either of those grounds explored before us and we say nothing as to either of them and must not be thought to be deciding one way or another in respect of them. There are other arguments that have been touched on, though not necessarily as fully deployed as they might be; for example, Miss Mountfield points out that restoring Mr James to terms of employment no less favourable than would have existed had he not been called out would be completely fruitless as he was on a temporary contract which had expired and to restore him to that would not assist him at all. There is also an argument that, in any event, the Meteorological Office is not the former employer within the legislation that we have read out.
16. We do not need to go into to these points because there is a simple approach which we do need to examine. It was argued by the Ministry of Defence, both below and here, that Mr James had not complied with the procedural requirements that are necessary if the rights under the 1985 Act are to come into existence and are to be capable of being invoked.
17. On 16th October 2000 the hearing took place at the Reinstatement Committee and their unanimous decision (that is to say the decision of the Chairman, Mr J G Hollow and two members, Mr G T Cadbury and Mr G King) was that the application failed and was dismissed. The decision continued "The applicant is granted leave to appeal to the Umpire pursuant to Reg. 5 of The Reinstatement In Civil Employment (Procedure) Regulations 1944."
18. On 24th October 2000 Mr James' Notice of Appeal was received at the EAT. He says:

"My case was dismissed on a legal technicality. I still have a genuine grievance on the circumstances of the termination of my employment with the Mobile Meteorological Unit, which the Meteorological Office has yet to answer. …"

19. On 14th November 2000 there was a Respondent's Answer on behalf of the respondent by the Treasury Solicitor.
20. We need to remember that an application to the former employer or to the local office under section 1 of the 1985 Act ceases to have effect under section 3(4) thirteen weeks after its making, except in the prescribed circumstances which do not seem to apply.
21. With that in mind, we turn to Mr James' letter of 21st September 1999. This is after the end of his whole-time service and before the expiry of any relevant period of limitation. It says, amongst other things:

"To ease your manpower shortage and my lack of any immediate employment, may I suggest that in short to medium term I work for the MMU on a freelance self-employed basis. This is standard practice with the commercial met. organisations whenever they have manpower problems."

Despite it not being in any way in prescribed form, and despite the position that Mr James had not previously been on a freelance self-employed basis (so that, strictly speaking, the letter was not asking for reinstatement to former employment, but for something quite different) let us make substantial assumptions in Mr James' favour and assume that to be an application made within section 1(2) and assume also that it was made to the former employer. Even so, it would cease to have any effect on 21st December 1999. No proceedings under the 1985 Act were issued until 9th June 2000, nor had there, of course, been a restoration of his job in the meantime. That is the only document which is canvassed as being a possible application under the Act, because the only rival that it has was made, if at all, on 3rd September 1999, namely before the expiry of service and therefore was not a correspondence that would have complied with the Act.

22. There is no provision for extension of the particular thirteen weeks here relevant. As for any other application for reinstatement made "after the third Monday after service", namely after 4th October 1999, there is an ability to extend time under section 3(3)(a). But as to that, the Committee below said this:

"9. Furthermore, if the applicant had made a written application to a former employer it is clear that his application to the Reinstatement Committee must fall will outside the 13 week time frame laid down by Reg 3. His application was presented to the Committee on 6 June 2000.If the last date on which the applicant might have made an application to a former employer was 4 October, the 13 week period thereafter must have expired by 4 January 2000 at the latest. There has been nothing in the applicant's evidence which would persuade the Chairman of the Committee that there is any good cause for allowing the application to proceed having been presented outside the 13 week period. The applicant's explanation was that he was not aware of the legal position. That would not be a sufficient reason for the Chairman to allow the matter to proceed having been presented out of time."

23. We have to go back to first principles. There is no common law right here being invoked by Mr James. The right to reinstatement under the 1985 Act arises only under the 1985 Act and therefore the machinery of the Act has to be complied with. The 1985 Act carefully prescribes how the right is to be invoked – section 3(1)(a) and section 3(2). If the Act is not complied with the rights it would have conferred do not come into existence.
24. Whilst we have sympathy for Mr James we fear that we cannot help him. He did not comply with the requirements of the Act. He feels, and there is some justice in the feeling, that he has lost his case on a technicality. But if the technicality is well founded and is such that it cannot be overcome, well then, we are powerless to help him. It may seem a little harsh to say that ignorance of legislation as little known as the 1985 Act and its Regulations and its procedures does not excuse the delay on his part. But it is commonplace that ignorance of legislative procedural time bars is very seldom allowed to be a good excuse for delay. An example is to be found in an area with which the Employment Appeal Tribunal is particularly familiar, that is to say extensions of time for late appeals – see United Arab Emirates v Abdelghafar [1995] ICR 65 at D-F. Indeed, if one reflects upon ignorance being an excuse or an adequate explanation, one can see that it would lead to enormous difficulties. Almost any applicant could assert ignorance with some prospect of credibility. One would then be left with the opponent having to prove the applicant's knowledge of the legislation. One would, in effect, have almost repealed the time bar which the legislature, here Parliament, had thought fit to prescribe, because proof of knowledge of the law on a person's part would be quite exceptionally difficult, often impossible, to prove.
25. There are, as we have touched on, other arguments possible against Mr James' case but we see no error of law in the Committee's conclusion. Mr Nesbitt's written argument touches on the Human Rights Act 1998 to assist Mr James but Miss Mountfield has referred us to Stubbings v United Kingdom 23 EHRR 213 and in particular to the summary in the headnote that says of a court that:

"It must be satisfied that the limitations do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired."

Assuming that human rights here come into play at all, we could not take the view that the restrictions here are so strict as to lead to a situation in which one could say "that the very essence of the right was impaired".

26. Mr Nesbitt's written argument also takes the point that, after all, Mr James applied to the Employment Tribunal within the prescribed period. But it does not seems to us that one can excuse or explain delay in making the right application by proving that in punctual fashion one had made the wrong one.
27. Mr James will undoubtedly continue to feel aggrieved but he has to remember that we are sitting here under the 1985 Act. Our jurisdiction goes no further than that Act prescribes. He feels that the root of the problem that he has, the root of his grievance, has still not been explored. We have not yet embarked on the real argument, he says. But we have to concern ourselves with what is strictly before us, which is consideration of the issues raised under the 1985 Act. In looking at the 1985 Act we have been able to detect no error of law in the conclusion to which the Reinstatement Committee came. The facts before it were not in issue. Accordingly, although we recognise this will necessarily disappoint Mr James, we have no option but to dismiss the appeal.