United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G BOLD (The Appellant in Person)
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR RECORDER LANGSTAFF QC

1. This is an appeal from an Employment Tribunal sitting at Truro, which gave extended reasons for its decision on the 5^th July 2000. It dismissed Mr Bold's claim that he had been constructively unfairly dismissed by the Respondent. That had been the only claim clearly identified on his Originating Application, but it became apparent, from what he wrote in support of that claim, that he was arguing that money was due to him from the Respondent.
2. The money was due to him, he argued, because he had worked doing project work from time to time for the Respondent. In respect of that work, he would submit invoices monthly and was due to be paid sums in respect of those invoices. The Tribunal considered that a contract dated the 31^st October 1997 governed the relationship between Mr Bold and Business Location Services Limited, the Respondent. That contract contains unusual terms, which are the subject of this appeal.
3. It provides, and I shall set it out in full, as follows,

"1) You are to undertake assignments in accordance with directives issued by BLS Limited

2) The fee rate applying will be advised to you for each assignment

You will invoice BLS Limited on a monthly basis

4) BLS Limited will pay quarterly a sum equivalent to 40% of your invoices, less the

administration charge

5) Payment of the 60% balance of your invoices will be made:

5.1) In the calendar year, following the end of the financial year from 1^st September to 31^st

August, in which the invoices were dated and

5.2) From an allocation of not more than 50% of any surplus shown in the accounts for the

financial year, after making provision for repayment of any investment made by BLS

Limited and paying the accounts of all other creditors.

An administration fee will be charged to a maximum of 10% of any claim you make

(paragraph 12 general conditions of contract) on an ongoing basis

7) The duration of this contract is until 31^st October 1998"

4. There was provision in the letter for Mr Bold to sign to indicate his acceptance of those terms and conditions. This he did. He claims that he did work in August 1998 or in July 1998, in respect of which he raised invoices actually in August 1998. He maintains that within the meaning of the contract, clause 5.1, those invoices were dated no earlier than the 1^st September 1998. It follows that if so dated, they would fall within the financial year, running 1^st September 1998 to the 31^st August 1999. They would be due for payment so far as the 60% balance was concerned in the calendar year following 31^st August 1999, that is in the year stretching from 1^st January 2000 (at the earliest) to 31^st December 2000 (at the latest). If so, his Originating Application would have been within time.
5. He accepts however, that if the critical date, that is the date of the invoices, fell before the 1^st September 1998, it would be a year earlier that the payment was due and his Originating Application would be out of time. The Tribunal determined that whatever dates that they could consider in respect of the money he claims, they were all outside the three month time limit. They say that it was a strict time limit and could only be extended if they found that it was not reasonably practicable for the Appellant to bring the case in time. They found that it was reasonably practicable. There is no complaint about the way in which they approached that issue.
6. The only question before us, therefore, is the question whether or not the contract should be construed so as to provide, when applied to the facts found by the Employment Tribunal or admitted and accepted by the Appellant, that the invoice was dated 1^st September 1998 or later. We have concentrated upon the last of the invoices to which his claim related because if that were to result in a claim within time, we should have thought that the non payment would represent a deduction as one of a series of deductions rendering the whole of his claim within the jurisdiction of the Employment

Tribunal. We have come to the conclusion, sadly for Mr Bold, with whose predicament we have some sympathy, that we cannot construe the contract as he would wish.

7. It is common ground that the latest invoices were in fact submitted during August 1998. It is equally common ground that he did not perform any work or services for the Respondent during the latter part of August 1998, if indeed he performed any in August at all. He claimed to have been constructively dismissed and told us that the date of that constructive dismissal effected by his resignation was within August 1998. The meaning, which we would attribute to the expression "in which the invoices were dated", in the context of this contract, would be the date which the invoice showed on its face.
8. Mr Bold accepted in argument, when the matter was put to him, that if an invoice was typed up on say the 12^th of the month, then even though it might relate to work done earlier or for that matter later, the date of the invoice would be the 12^th of the relevant month. We agree that that is the plain meaning of the expression. In the absence of any alternative the plain meaning of an expression is that which is to be given to it. However, we are told that the invoice produced before the Employment Tribunal bore no date the face of it.
9. Mr Bold has explained that he was invited by the Respondent to submit undated invoices in August 1998 and invited to submit them before the 14^th August 1998. The question then is what force the expression "the invoices were dated" is to have, where the invoice on its face bears no date of its creation or for that matter of its submission to the paymaster to whom it is addressed. We think that the natural application of date in that sense would be the date upon in which it was in fact submitted. This is the nearest that one can come to any replication of the date that the invoice would otherwise have born upon the face of it. It is inconceivable that an invoice would be submitted on the 12^th of the month, yet could be taken to have the date of the 29^th of the month, unless either that was the date upon which payment was due and that was the meaning of the expression, or unless that was the date to which the latest of the work related and date was being used in that sense. Neither are as natural a reading as "the date upon which the invoice is submitted."
10. We should add that the date of submission of the invoice appears to fit within the contract, which we have to construe. It gives a date from which the periods within which the payment of 60% is to be made can be calculated. However, we should deal with the other possible interpretations of the expression. The date of the invoice might be the date when the payment was due under it. Secondly, the date might be the date of the work to which the invoice relates. It is argued by Mr Bold that there is a third possibility (which he argues is the interpretation we should give to the contract) and that is the date when the invoice was presented for payment. He means, by that, presented for payment, not to Business Location Service Limited to whom it was addressed but to the ultimate paymaster, a European body, who were to fund Business Location Services so that Business Location Services could in turn discharge their obligations unto the contract to Mr Bold.
11. We shall deal with each in turn.
12. As to the "date of the invoice" being the date when payments were due to be received under it, this cannot be the interpretation to be provided to this phrase in this contract. That is because payment is expressly said to be due in a period of a year, following a period of three months after the financial year in which the invoices were dated. It follows that the due date is a date which is different from the date of the invoice within this contract.
13. Next we consider whether or not the "date of the invoice" might be the date upon which the work was performed, to which the claim relates. In this case, the latest date would be a date in August. It would follow that the date of the invoice, for the purposes of calculation of the question whether or not the claim was out of time, would fall before and not on or after the 1^st September 1998. This is so even if invoices were to be provided on a monthly basis and therefore the invoice might be taken to relate to all the work done in a particular month. The last month in which work was done was the month of August 1998. If by "date of the invoice" was meant, the date of the work to which it relates, the date of this invoice, would be August 1998, it would not be September 1998 or later, and again this approach would give Mr Bold no comfort.
14. Mr Bold nonetheless contended for the final possible interpretation. This is to argue that, on the face of the contract, the "date of the invoice" is to be taken not as the date on its face nor as the date due, nor as the date when the work was done, but the date upon which the invoice was submitted, not to Business Location Services by him but by them to another. If this is the proper interpretation, it would of course mean that that was the interpretation to be applied whatever invoice was rendered under this agreement. It would mean that even if an invoice had, on the face of it, a date say the 12^th of the month nonetheless the date within this contract, which had to be taken as the date of the invoice, would be the date upon which it was submitted by BLS to another which might be the 29^th of the month, or the 2^nd of the next month or whatever. That cannot be the proper interpretation for three reasons. First it would give no certainty from which the calculation of the other periods within the contract would run and thus, it would not appear to be the intention of those who drew up and accepted the agreement. Secondly, it cannot be the interpretation in a contract which makes no reference to the fact that the invoice was to be submitted in reality not to Business Location Services but through their agency to an outside fund holder. The obligation that arises is not for the outside fund holder to pay Mr Bold, for there was no contract between him and them; it is for Business Location Services to pay him and no one else. Thirdly, we think that for that to be the interpretation would require some indication as to the time or period within which Business Location Services would submit the invoice to a fund holder and there is no such reference within the contract. It follows that although we understand his argument that the reality which underlay this contract was one in which he anticipated that Business Location Services would receive invoices from him after the end of the month to which the invoice related and would then submit those invoices for payment to an outside fund holder and hence, in Mr Bold's mind, the relevant time was the time at which the outside fund holder was asked for the payment without which Business Location Services would not have the wherewithal to pay him we must reject it. That is not what the contract says. The expression that we have to construe is a contractual expression. We have to look at it as a matter of contract.
15. We have to ask whether in the light of our analysis of the meaning of the contract, the Employment Tribunal erred in law. In our view, the conclusion to which they came in respect of whether the applications were out of time was correct. It was a matter for them, whether they wished to extend time. They did not do so. There is no error in their approach to that issue. It follows that this appeal must be dismissed. We should however just say this, that Mr Bold, we hope, will understand that our decision in no way precludes him from exercising whatever other rights he may have, under this same contract or otherwise in respect of the non-payment of fees which he alleges.