United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL TUTT (Representative) Dewsbury Citizens Advice Bureau Unit 5 & 6 Empire House Wakefield Old Road Dewsbury WF12 8DJ
For the Respondent	THE RESPONDENT BEING NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK

1. This is an appeal by Mr Patchett, the Applicant before an Employment Tribunal at Leeds, consisting of the chairman, Mr A J Simpson, sitting alone, held on 24 March 2000, against the chairman's decision, promulgated with summary reasons on 31 March and subsequently with Extended Reasons on 16 May 2000, dismissing his claim for a redundancy payment against his former employer, the Respondent Greenwood Interiors Ltd, a company now in liquidation.
2. The appeal was permitted to proceed to a full hearing by a division presided over by Lindsay P sitting on 12 October 2000.

Review

3. This full appeal first came on for hearing before this division on 5 June 2001. On that occasion the Appellant did not appear and was not represented; the Respondent company was in liquidation and the Insolvency Service had indicated that the Official Receiver would not attend the hearing. In these circumstances we proceeded to consider the case on the papers and dismissed the appeal.
4. On 11 June Mr Tutt, the Appellant's representative, wrote to the Employment Appeal Tribunal pointing out that when the case was put in the warned list for June/July he notified the Employment Appeal Tribunal that he would be unavailable between 24 May and 11 June due to a pre-arranged holiday. Nevertheless the case was put in on 5 June; Mr Tutt's Personal Assistant notified the Employment Appeal Tribunal of the position, but the message was not relayed to the Court and the case proceeded to judgment. In these circumstances I directed that a review hearing should take place under Rule 33(1)(a) EAT Rules, namely that arguably the order was wrongly made as a result of an error on the part of the Tribunal or its staff.

History

5. By an Originating Application presented to the Employment Tribunal on 14 January 2000 the Appellant claimed a redundancy payment. He contended that he had been employed by the Respondent, finally as a shop floor foreman, from 1 July 1991 until 21 May 1999 when the Respondent's premises were destroyed by fire. It is said that the Respondent's insurers refused to meet the consequent claim and thus the Respondent was unable to start up again. The Appellant contended that in these circumstances he was dismissed by reason of redundancy.
6. By their Notice of Appearance the Respondent accepted that the Appellant was dismissed on 21 May 1999. Their reason for dismissal was given as 'Fire Damage Factory'. They indicated that they did not resist the claim.
7. It appears, from a letter to the Employment Appeal Tribunal from the Insolvency Service dated 30 April 2001 that the Respondent company was the subject of a Winding Up Order made on 17 July 2000.
8. Although it is not apparent from the face of the Employment Tribunal decision we infer that in these circumstances the Respondent did not appear and was not represented at the hearing held on 24 March 2000. The Appellant did appear in person on that day.

The Employment Tribunal Decision

9. On the face of the pleadings there was no dispute as between the parties but that the Appellant was entitled to a redundancy payment. However, the chairman identified the preliminary issue relating to jurisdiction by reference to Section 164 of the Employment Right Act 1996 (ERA), which provides:

"(1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date –

(a) the payment has been agreed and paid,

(b) the employee has made a claim for the payment by notice in writing given to the employer,

(c) a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal, or

(d) a complaint relating to his dismissal has been presented by the employee under section 111.

(2) An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee -

(a) makes a claim for the payment by notice in writing given to the employer,

(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or

(c ) presents a complaint relating to his dismissal under section 111,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

(3) In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an industrial tribunal shall have regard to –

(a) the reason shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1), and

(b) all the other relevant circumstances."

10. Whilst acknowledging that he had power to extend time in certain circumstances the chairman was not satisfied that those circumstances were applicable in this case.
11. He found as fact that the relevant date for the purposes of section 164(1) ERA was 21 May 1999. The Originating Application was not presented until 14 January 2000, more than 6 months later. The case did not fall within section 164(1).
12. It is clear that the chairman enquired into the reasons for the delay in presenting the Originating Application (section 164(3)(a)). We have the chairman's notes of evidence as well as his extended reasons for his decision. The chairman accepted that shortly after his dismissal the Appellant and 2 of his colleagues obtained copy forms IT1 and completed them. They were then sent off to the Employment Tribunal but not received.
13. With each form was a booklet, explaining the procedure to be followed. Under the heading "What does the Tribunal do when it receives my application?" appeared this advice:

"When the Tribunal receives your application it is given a case number. You should use that number whenever you contact the tribunal office. If you have not heard from them a week after sending your application you should contact the tribunal office to which you sent it, to find out what is happening."

14. The Appellant accepted that he had received a copy of the booklet but could not recall reading it or seeing the paragraph quoted above.
15. He took no action on the original complaint, although he received no acknowledgement from the Employment Tribunal. It was not until January 2000 that he was informed by another colleague that he had had his case determined by the Employment Tribunal that he, the Appellant, presented his second complaint, albeit outside the primary 6 month limitation period.
16. In these circumstances the chairman expressed his conclusion, at paragraph 5 of his Extended Reasons, thus:

"I have to consider whether it is just and equitable for my (sic) to extend the time limit. However, the applicant's inaction over the succeeding months is, in my view, a reason why I should not extend the time limit. Had the applicant read and acted upon the paragraph set out in the guidance booklet, he would have been able to retrieve the situation. Indeed, he could have presented a new form of complaint well within the time limit. He did not do so. By reason of the applicant's explanation for the delay, I do not consider that it would be just and equitable to extend the time limit and accordingly, I have no jurisdiction to hear the complaint regarding the redundancy payment."

Preliminary Hearing

17. From the judgment delivered by the President at the Preliminary Hearing of this case, at which the Appellant was represented by Mr Tutt, of the local Citizens Advice Bureau, who had lodged a written submission prior to the hearing, it is said by Mr Tutt that 3 points of law arise for consideration at this full appeal hearing:

(i) did the chairman apply the reasonable practicability test, appropriate to cases of unfair dismissal, instead of the just and equitable test (Judgment Paragraph 9)

(ii) did the chairman ask himself the wrong question, whether it was just and equitable to extend time (as in cases of race & sex discrimination) as opposed to the question posed by section 164, was it just and equitable that he should receive a redundancy payment (Judgment Paragraph 9)

(iii) did the chairman fail to consider all other relevant circumstances, as required by section 164(3)(b)? (Judgment paragraph 8)

New Evidence

18. Before turning to those issues it is first necessary to consider a submission made by Mr Tutt by reference to a medical report from the Appellant's General Practitioner, Dr Findlay, dated 16 May 2000. Mr Tutt submits that the Appellant is severely hampered in his literacy by inadequate education arising from a hearing disability as a child. He submits that this was a relevant factor which fell to be considered by the chairman, although not raised directly by the Appellant at the hearing, and that the chairman ought to have elicited this background by questioning the Appellant.
19. We cannot accept that submission. Just as an Employment Tribunal is not required to ensure that every allegation in an Originating Application is dealt with (see Mensah v East Hertfordshire NHS Trust [1998] IRLR 531) there is no duty on the Employment Tribunal to tease out evidence which a party has forgotten or chosen not to adduce in evidence at the hearing. The inexperience or incompetence of the party is not a relevant consideration on appeal. Kumchyk v Derby City Council [1978] ICR 1116.
20. Further, although we have considered Dr Findlay's report de bene esse, we do not believe that it should formally be adduced by way of new evidence in this appeal. Applying the well-known Ladd v Marshall test, adopted in this jurisdiction by Popplewell J in Wileman v Minilac Engineering Ltd [1988] ICR 318, it is clear that the contents of Dr Findlay's report could, with reasonable diligence, have been put in evidence before the Employment Tribunal, as could his own evidence as to his literacy problems.

The Legislative background

21. It is sometimes instructive, in deciding questions of statutory construction and application, to look at the legislative history in order the better to understand the provision under consideration. We think that holds good in the present case.
22. Originally section 164(1)(a)-(c) ERA was contained in section 21 of the Redundancy Payments Act 1965 (RPA). Thus, at the outset, the time limit was 6 months. There was no scope for an extension of time.
23. The remainder of section 164 was introduced by Paragraph 9 of Schedule 16 to the Employment Protection Act 1975 (EPA). It is, we think, significant that the Employment Protection Act, received the Royal Assent on the same day as the Sex Discrimination Act 1975 (SDA), 12 November 1975.
24. Section 76 SDA deals with time limits. The primary limitation period under that Act is 3 months (section 76(1)), subject to section 76(5) which provides:

"A … tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

Subsequently, the same provision was employed in section 68(6) Race Relations Act 1976 (RRA).

25. Section 21 RPA as amended was re-enacted as section 101 Employment Protection (Consolidation) Act 1978, in turn finally re-enacted in its current form as section 164 ERA.

The grounds of Appeal

26. It is convenient to take the 3 grounds identified above in the same order:

(i) did the chairman erroneously apply the 'reasonable practicability test'?

Whilst we recognise the distinction between the test of reasonable practicability (see, eg sections 24(3) and 111(2) ERA) and the just and equitable provision we are not persuaded that the chairman fell into that error. On the face of his reasons he was considering a just and equitable test.

(ii) Was the chairman correct to consider his task to answer the question, is it just and equitable to extend time?

In the President's judgment at the Preliminary Hearing reference is made to an observation by the learned editors of Harvey on Industrial Relation and Employment Law, volume 1 section E 2137.01, where it is stated, in relation to section164(2) and (3):

"The relevant question for the Employment Tribunal includes whether the Appellant is, in a broader sense, deserving of a redundancy payment."

No authority is cited in support of that proposition. There is reference to the case of Pfaffinger v City of Liverpool Community College [1996] IRLR 508 (EAT, Mummery J presiding), however we can see nothing in that judgment which bears on the section 164 question.

In our view that bold statement in Harvey is unhelpful and potentially misleading. It suggests or may suggest that the Employment Tribunal has an unlimited discretion to award a redundancy payment to an applicant who has not complied with section 164(1) in a deserving case.

We return to the legislative history. Although there are textual differences between section 21 RPA, as amended, and section 76(5) SDA we are satisfied that the intention of Parliament was the same in both provisions. The Employment Tribunal has a wide discretion to extend time if, in all the relevant circumstances it is just and equitable to do so. Those circumstances must relate to the late application, not the underlying merits of the claim, subject to the limited enquiry as to merits suggested by Phillips J in Hutchison v Westward TV Ltd [1977] ICR 279. On this footing we think that the editors correctly state the position at E 2138.

Accordingly we conclude that the chairman was correct in directing himself, at Paragraph 5 of his Extended Reasons, that the question for him was whether it was just and equitable for him to extend the time limit laid down by section 164(1) ERA. That leads us to the 3^rd and final point in the appeal.

(iii) did the chairman fail to consider "all the other relevant circumstances" referred to in section 164(3)(b) ERA?

It is at this point that the submissions of Mr Tutt, set out in his written argument received on 19 April 2002 for the first time and developed in oral submissions, have caused us to depart from our original decision, reached without the benefit of such argument for the reasons explained earlier leading to our review.

He submits that the Employment Tribunal's approach to the questions raised by section 164(2) and (3) mirror those raised by section 76(5) SDA and section 68(6) RRA. Having ourselves traced the legislative history we accept that submission.

27. In these circumstances Mr Tutt now invites our attention to the judgments of the Employment Appeal Tribunal in British Coal Corporation v Keeble (No 2) [1997] IRLR 336 (Janet Smith J presiding) and Liburd v Hideaway Youth Project (EAT 37/99. 23 September 1999. Judge J Hicks QC presiding. Unreported).
28. In Keeble, paragraphs 8-9, Smith J endorsed the guidance to Employment Tribunals given by a division sitting on the first appeal in that case, when exercising the just and equitable discretion under SDA, that the Employment Tribunal should adopt as a checklist the relevant mandatory factors in section 33 Limitation Act 1980, that is the prejudice to each party if the case is allowed to proceed out of time and the following:

(a) the length of and reasons for the delay

(b) the extent to which the cogency of the evidence is likely to be affected by the delay

(c) the extent to which the party sued had co-operated with any requests for information

(d) the promptness with which the plaintiff acted once he or she knew of the facts

giving rise to the cause of action

(e) the steps taken by the plaintiff to obtain appropriate professional rise once he or she knew of the possibility of taking action.

29. That approach was accepted by Counsel as applying in the case of Liburd. However, lest it may be thought that such concession was wrongly made, we observe that between Keeble v Liburd was decided another case in the Employment Appeal Tribunal, DPP v Marshall [1998] ICR 518, in which Morrison J expressly approved the approach in Keeble. See 528F
30. Turning then to Liburd, a case concerned was section 68(6) RRA, there the Employment Appeal Tribunal allowed the Applicant's appeal on the ground that although the Employment Tribunal had considered factors (a) – (e) under section 33 Limitation Act, they did not then go on to consider the question of prejudice to the parties. The balance of prejudice question.
31. Turning to the present case, it is clear to us that the chairman considered only the question raised by section 164(3)(a) ERA. That equates with section 33(3)(a) Limitation Act. He did not go on to consider, as he was required to do by section 164(3)(b) all the other relevant circumstances. By extension, we are satisfied that those circumstances include the factors listed at section 33(b) – (e) Limitation Act as well as the balance of prejudice question

Conclusion

32. In these circumstances we shall allow this appeal on what we have described as the third ground of appeal. The chairman fell into error by failing to ask himself the statutory question raised by section 164(3)(b) ERA, as explained above by reference to the learning on section 76(5) SDA and section 68(6) RRA. Accordingly we shall review our original decision and set it aside, allowing this appeal and remitting the case for re hearing before a fresh Employment Tribunal. At that hearing it will be open to the Appellant to lead evidence as to his literacy which was not placed before the chairman on the last occasion and which we could not properly admit in this appeal.

Insolvency

33. Finally, it is clear that if the Applicant, at the remitted hearing (a) overcomes the limitation hurdle and (b) is found to be entitled to a redundancy payment, then, in light of the insolvency of the Respondent company he will be looking to the Secretary of State for payment out of the NI fund. In these circumstances we direct that a copy of this judgment be forwarded to the Secretary of State by the Employment Tribunal so that consideration may be given to the Secretary of State being joined as a party under rule 19 of the Employment Tribunal Rules of Procedure 2001.