At the Tribunal | |
Before
MR RECORDER UNDERHILL QC
MR K EDMONDSON JP
MISS A MACKIE OBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
MR RECORDER UNDERHILL QC
(1) While it is common ground that the application for unfair dismissal was prima facie out of time, the same does not apply to the claim for unlawful deductions. It appears that time in respect of such a claim runs from the last date on which the employer could lawfully have made the payments in question: see Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398. There was no separate consideration by the Tribunal of what that date was on the facts of the Appellant's case. Mr Williams from the Plymouth TUC Unemployed Workers Centre, who has represented the Appellant today and who was present for part of the hearing before the Tribunal, tells us that the Chairman made it clear at the hearing that he regarded the only issue before the Tribunal as being the issue of the effective date of termination, which is the relevant date for the unfair dismissal claim. That allegation will of course have to be put to the Chairman and the parties will need to see the Chairman's Notes, but there is at least some support for it in the way in which the Reasons are expressed.
We were concerned that even if the questions were posed in terms of the last lawful payment date, the answer would not assist the Appellant, because we note that in a letter of 5 January 2001 from Mr Carpanini of the Unemployed Workers Centre to the Employment Tribunal seeking a review he states that the contractual date of payment would have been 12 June - in which case the claim would still be out of time. However Mr Williams tells us that that statement is not necessarily correct and we do not feel in a position to make any definitive ruling on it. It would certainly be wrong to dismiss it on a summary basis.
(2) In respect of both claims it was, in principle, open to the Appellant to argue that it was not reasonably practicable for the complaint to be presented within the primary period. It is not entirely clear to us, and Mr Williams was not able to assist, to what extent a case on reasonable practicability was advanced before the Tribunal, or indeed whether such a claim might have been advanced, but was precluded by the Chairman's alleged insistence that the only issue was that of effective date of termination. But if such a claim was advanced, or was sought to be advanced, it is at least arguable that the Tribunal's dismissal of it in a single sentence:
"further the Applicant has not shown that it was not reasonably practicable for the application to be presented within the time allowed"
does not constitute an adequately reasoned decision on an important point. Again, it will be necessary to have the Chairman's comments and copies of the notes, but we are not prepared to exclude an appeal on the ground of reasonable practicability at this stage. If the reasonable practicability point is indeed open to the Appellant, which will have to be determined (if disputed) at the full hearing of this appeal, we are certainly not prepared to say on what we know at present that the point would have been unarguable. Situations like the present where the applicant has received, with respect to Mr Williams and his organisation, what appears to be plainly wrong advice from a lay adviser, have been a fertile source of discussion in the case law for the last thirty years.
(3) We believe that it is arguable, to put it no higher, that this is a case where the Appellant, having himself, through his advisers, sought a preliminary hearing to determine a bona fide point as to jurisdiction, should not have been made liable for costs as a result of having lost on that hearing; and the Tribunal's reasoning for an Order of this kind in any event may be argued to be inadequate.
Ground B clearly raises an arguable issue.
Ground C does not seem to us to go to the heart of the point of reasonable practicability, though it may well be an issue that arises if the merits of that point have to be determined.
Ground D, we accept, raises an arguable point.
It may be that, in the light of the observations we have made, the Appellant would wish to revise the grounds of appeal. We give leave to amend them within twenty one days after the expiry of the timetable which we have given in regard to Chairman's Notes and comments thereon; it seems sensible that if the grounds of appeal are to be amended that should be done with knowledge of the full material that will be before the Employment Tribunal. We would recommend that, ably as Mr Williams has acquitted himself, he seek qualified legal representation at the hearing for the Appellant.
Category C, time estimate three hours.
Now Mr Williams, one or two points were raised there which we did not give you the opportunity to comment on, but I hope they are straightforward and in no way adverse to your client and hope there is nothing you need to add, but you have the chance if you do.
No, there is nothing I need to add, and I am grateful for the advice on the grounds of appeal, grateful regarding the issuing of the Chairman's Notes and very grateful for the way the Tribunal has been conducted and the help that has been given to myself.
Well, it does not mean we are going to win at the end of the day, but it means you will get a proper hearing.