United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RITCHIE (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE ELIAS

1. We have before us what are effectively two preliminary hearings in relation to two cases that have been heard together brought by the Appellant in connection with two different determinations of the Employment Tribunal held in London.
2. In the first, the Appellant contended that the employers had broken Section 10 of the Employment Relations Act in not giving him the right to be accompanied at a disciplinary hearing by the representative of his choice; and also that they are in breach of Section 12 of the Act in that they had subjected him to a detriment short of dismissal by imposing upon him a written warning which he said was caused by the fact that he had complained of their failure to allow him to be represented.
3. The Tribunal rejected both claims on the grounds that they were out of time. In relation to the first claim they held that time began to run from the date when the Applicant was told that he would be refused the right to have the representative act for him at a particular place. I put it like that because in fact the employers never refused him the right to be represented by the representative he wished to act for him, but only said that that particular representative had been barred, for reasons not explained to the Tribunal, to attend certain premises of the Respondents. So they fixed the disciplinary procedure at a particular place so that representative could in fact attend.
4. It was suggested, and it may well be right, that the Tribunal erred in holding that the time began to run from the date when he was told that he could not have a representative at his chosen place rather than at the date when the hearing took place. But it makes no difference because as Mr Ritchie, who has ably acted for him accepts, either way the case is now out of time. The relevant decision was sent to him on 24 December and his Originating Application was not put until 25 March.
5. The Tribunal went on to consider whether it was reasonably practical in all the circumstances for him to put in his claim in time and concluded that it was. They pointed out that he had consulted lawyers and there was no reason indeed put forward at all as to why the case could not be put forward in time.
6. The Appellant had made certain submissions as to whether time should be extended but they did not address at all the question as to why he had failed to put in his claim within three months period. Rather they focussed upon what was said to be certain unscrupulous and improper conduct by the employers, but that was not the point.
7. Having rejected both applications on this ground, the Tribunal then went on to consider the question of costs. The Respondents had asked for their costs. The Tribunal reminded itself as to the principles namely that it is necessary that the party in bringing the proceedings or in conducting the proceedings has acted vexatiously, abusively, disruptively or otherwise unreasonably and they went on to award costs and they summarised their reasons as follows:

"It is clear in view of our findings that Mr Bridge knew of the three month time limit but nevertheless he persisted in bringing in this case. The Respondents further point out to us that he has been an Applicant in six other cases brought before this Tribunal and in respect of all of those which have been heard he has lost his case. Furthermore, in respect of a case which went to the Court of Appeal he has already had costs ordered against him. He therefore, they say, well knows that costs are an issue in Tribunals as well as they are in the Courts.

We think the Respondents are right. Mr Bridge is a member of the union which is well used to litigation. We note that his Originating Application came to us faxed from his union and that therefore he must have known first of all that the case itself was to say the least weak and secondly, that it had been presented out of time. The Respondents sent a letter a week before the hearing pointing out that should he lose his case costs would be applied for was yet a further warning to him and still he persisted. In those circumstances we think that this claim is misconceived and more than that that in pursuing it to this hearing he has acted unreasonably."

8. Mr Ritchie has put forward two grounds which he says are arguable. Firstly, he submits that the Tribunal arguably erred in law in concluding that it was clearly reasonably practicable for him to present his claim in time, and arguably at least they should have allowed him additional time. We reject that categorically. Plainly he could have put his claim in time here. There was no reason why not. It is true that the Tribunal did not refer to the reasons which he gave in his submissions but they were simply not to the point and did not begin to provide any form of explanation. Even less justification, for his acting as he did.
9. Secondly, Mr Ritchie submits that in any event the Tribunal ought not to have made the award of cost that it did. He says that it is not plain in all the circumstances that the Appellant must have known that a discretion would not be exercised in his favour to permit his application to be taken out of time, and furthermore that some weight seems to have been laid upon the fact that a letter was sent by the Respondents notifying him that they would apply for costs.
10. As to this latter point, it seems to us that the Tribunal is simply recognising that he was put on notice that costs would be claimed if his action were to fail. We consider the Tribunal was fully entitled to reach the conclusion it did, essentially on the basis that it did. The Tribunal found, and we agree entirely with this, that on any ground this was always an extremely weak case. The Applicant knew he was out of time but he knew he would have at best to rely upon the Tribunal's discretion to extend time and that there was no real explanation as to why the matter had not been dealt with as it ought to have been.
11. The Tribunal refers to the fact that there had been numerous other cases which have gone to the Tribunal and failed, and they were entitled to conclude that in the circumstances it was quite unreasonable for the Appellant to pursue this matter knowing that it was inevitably going to cause some cost to the Respondents and yet being willing that they should incur that notwithstanding the evident weaknesses of his case both procedurally and substantially. Accordingly we do not believe this case ought to go ahead to a full hearing.
12. As to the other case, that was an application by the Appellant before the Industrial Tribunal contending that he should have been paid for a Bank Holiday. The background very briefly was this. He was requested to work and did not do so. He submitted that nonetheless he was entitled to be paid for that particular Bank Holiday. He relied initially on an agreement that was made in 1986 between the employers and the Trade Unions which he said had entitled him not to work. But that was not produced to the Tribunal. What was produced was the 1994 Agreement that provided as follows:

"Unless absent, staff will be paid a days holiday pay for any Bank Holiday worked or rest day or annual holiday day falling on a Bank Holiday. This applies also to staff who are certified sick on a Bank Holiday covered by a Medical Certificate."

So that indicates that there will be double pay indeed for staff who are working. The Tribunal held that the phrase 'unless absent' meant that if the employee was absent without justification then he would not be entitled to be paid.

13. Mr Ritchie, for the Appellant, submits that whilst accepting that the Appellant could not rely on the 1986 Agreement and that indeed the Tribunal had noted that in any event the 1994 Agreement would have overtaken, it nonetheless the Appellant would wish to submit that there was a custom and practice which had overtaken, as it were, the 1994 Agreement. It is true that apparently since the agreement in 1994 it appears that individuals have not been compelled to work for Bank Holiday and that 2002, the year in question, was the first year when that was required. But this question of custom and practice was addressed directly by the Chairman of the Tribunal as follows, he said this:

"The Respondent did not run two person operated buses on a Bank Holiday until Easter 2002. It was for this reason that the Applicant was never previously required to work on a Bank Holiday, and neither were any other members of TPO crews. I am unable to accept Mr Neckles' submission that this practice became a term of the Applicant's contract of employment. In my view this was an operational practice only. It did not create any contractual entitlement for the Applicant. The Respondent at all times remained entitled to require him to work on a Bank Holiday and they exercised that right in relation to the Bank Holidays in issue."

14. So the question of whether or not the agreement had been overridden by custom and practice was addressed and addressed directly by the Tribunal. They clearly had evidence to reach the conclusion that the reason why the Appellant was being asked to work on this day, and not previously, was operational requirements and that there was not a contractual right to refuse to work. In the circumstances we consider that application too must fail.