United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J GALBRAITH-MARTEN (of Counsel) Instructed By: Messrs Linklaters & Alliance Solicitors One Silk Street London EC2Y 8HQ


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of an appeal by Onwa Electronics (UK) Limited, a company in Administrative Receivership, against the decision of the Employment Tribunal sitting at Newcastle on Tyne, chaired by Mr Garside and sent to the parties on 20 August last year. By that decision, the Tribunal, and we put this in neutral and not specifically in statutory words, made an award of a payment, by way of protective award under Part IV Chapter 2 of the Trade Union and Labour Relations Act 1992, in respect of a large group of Applicant ex-employees.
2. There were 100 or so Applicants before the Tribunal, which heard all of their claims together informally in a group; we say "informally" because, of course, the forum being the Employment Tribunal, there was nothing in the nature of a group litigation order. Of these employees, the employers conceded the claim made by about half and disputed the claims made by about another half. All of the employees had been employed in the employers' factory at South Shields. In all or most cases, the employment came to an end, again to put it neutrally, in the context of the failure of the employers and the consequent appointment of Administrative Receivers late in 1999. The overwhelming majority of the employees appear to have been dismissed on 12 November of that year.
3. In September 2000, 5 of the employees who were dismissed on or with effect from 12 November 1999, complained under section 189 of the 1992 Act that the employers had failed to comply with the requirements of section 188 and section 188 A of that Act, which sections require various steps to be taken by way of collective consultation and by way of the appointment, in the absence of the recognised trade unions, of employees' representatives for the purposes of such consultation. The statutory consultation period required by section 188 was not satisfied. There had been no meaningful consultation before the dismissals; and no employee representatives had been elected.
4. At the hearing of the claims by the 5 employees, the employers or the receivers conceded that those provisions had not been observed and that the Tribunal should make, as it did, a protective award under section 189 of the Act. That decision was promulgated on 24 October 2000. The employees who are or were concerned in the hearing which has led to this Appeal presented their claims thereafter, having learnt of the awards in the cases of the 5 original employees.
5. The award was made in these terms in that original Tribunal hearing:-

"The Employment Tribunal makes a protective award for the protected period in respect of the employees of the Respondent who were dismissed as redundant with effect from 12 November 1999."

The award was made in that form because section 189 (and it is unnecessary for present purposes to go into detail) describes a protective award as an award in respect of descriptions of employees. It is not an award that is made only in respect of those employees who happen to be Applicants before the Tribunal on the occasion of the making of the award. Section 189 sub section (3) says:-

"A protective award is an award in respect of one or more descriptions of employees-

a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period."

6. Mr Galbraith-Marten, on behalf of the employers, submits that the claims which were made by the 100-odd employees whose claims came before the Tribunal in June of last year and were the subject of the decision now challenged were not complaints for a protective award under section 189 but were complaints under section 192 of the Act, pursuant to which an employee may present a complaint on the ground that he falls within the description of persons to whom a protective award relates but has not received the payment he should have received, having fallen within that description. We have to say that it is not crystal clear whether these employees were indeed making a section 192 application as opposed to another section 189 application; but it is probable that they were section 192 applications; and it is at least plainly arguable that they were.
7. There were three issues before the Tribunal in respect of the 50 or so employees (and we call them employees even though by this time they had long ceased to be employees) in whose cases there had been no concession. The issues were (i) were the employees dismissed at all, (ii) if they were dismissed, were they dismissed on a date other than 12 November 1999 and (iii) were their claims presented in time. These issues did not all apply to all of the employees; at least one applied to every one of those whose claims were in dispute, as we understand it.
8. The Tribunal found in favour of all the employees and awarded all of them sums of money in respect of the protected period of broadly between £2000 and £3000, although the figures vary and some are outside those limits. The employers, by their receivers, now seek to appeal. Originally they did so by Notice of Appeal presented within time, in September of last year. By that Notice of Appeal they appealed only in the cases of four of the employees, those four being identified in the Notice of Appeal in a lengthy schedule which sets out, with clarity, who were the subject of the appeal and who were not, the four employees who were parties to the Appeal being listed in part 1 and the remainder, who were not, being listed in part 2. Those four employees were Mr Jenkyns, Mr Jowsey, Miss Murray and Miss Ogden.
9. On 20 December 2001, an amended Notice of Appeal was sent to the Tribunal in which the grounds of appeal were amended and the employers sought to add to their appeal a number of further employees whose claims had not been the subject of the original Notice of Appeal. Today Mr Galbraith-Marten has substituted for that amended Notice of Appeal a further document, setting out amended grounds of appeal, which refines but does not dramatically change the content of the original amended Notice of Appeal. Of course it is necessary, if the Appellants are to be able to appeal against any of the employees who were not named as parties to the original Notice of Appeal or to pursue any grounds that were not set out in the original grounds of appeal, for the Appellants to persuade us that we should allow the amendments sought.
10. There are three points now taken. Firstly, in the case of some employees, it is submitted that the Tribunal erred in failing to deal with the employers' case that those employees had not been dismissed at all but had resigned and that, if they had not been dismissed at all, they could not fall within section 189(3) of the Act and could not have succeeded in their claims before the Tribunal. Originally that ground of appeal was intended to affect Miss Murray and Mr Ogden. It is now sought to add to the employees affected by that ground a further employee, Miss Irving.
11. The second ground is put this way; only those who fell within the class of persons defined by the order made by the first Tribunal could make a claim, which might be described as a derivative claim, under section 192 on the basis that they fell within the class of persons named by the first Tribunal in its order but had not received payment; and, it was submitted, there is an arguable case in respect of all of the four original Respondents to the Notice of Appeal, Miss Murray, Miss Ogden, Mr Jenkyns and Mr Jowsey that they had not been dismissed on 12 November 1999 and therefore should not have been included within the award made by the second Tribunal. The employees seek to add to that list of four Respondents a further four new Respondents, Miss Defty, Miss Irving, (if she does not fall within the class in ground one), Mr Simpson and Mr Storey.
12. Thirdly the employers now submit that the Tribunal erred in extending time to a batch of employees in circumstances which we will describe, their applications having been presented outside the prima facia time limit to which we will come in a moment. It is submitted that ground 3 in the original Notice of Appeal covers this submission, although it has to be said that, if it does so, it does it in the most imprecise form and in a form which does not mention time or extension of time or any analogous words at all. It is submitted that the third ground applies not only to the four original Respondent employees but to the whole batch of about 30 employees, including (we think) those names we have mentioned under grounds 1 & 2, who did not attend the hearing and did not give evidence before the Tribunal. Under ground 3, in order to encompass all the employees in that batch the employers to seek to add 20 plus new Respondents to this appeal out of time.
13. We are going to deal with the time point first. We are aware, of course, that this is a preliminary hearing and that we are examining the case to see whether the grounds of appeal put before us, in relation to time or otherwise, are arguable. The point as to time was obviously taken by the employers at the hearing and was addressed by the Tribunal. It arises in this way: - if these were applications under section 192, as they probably were, (and it is not necessary to consider the time limits which arise under section 189 for present purposes) then the time limits were those set out in section 192 sub section (2). That sub-section provides:-

"An Employment Tribunal shall not entertain a complaint under this section unless it is presented to the Tribunal-

a) before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of a failure to pay remuneration or

b) where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within a period of three months, within such further period as it may consider reasonable."

14. There is an authority in the Employment Appeal Tribunal, Howlett Marine Services v. Bowlam [2001] IRLR 201, in which it was decided that the prima facie three month time limit runs from the last day of the protected period in respect of which the protective award has been made. That would be, in this case, 9 February 2000; so the prima facie period expired on 8 May 2000. Whether Howlett is right or wrong, we do not begin to say; we have not heard argument about it; but clearly it is arguable that it is right; and that is the correct approach to adopt for present purposes.
15. Howlett also says, however, that in terms of reasonable practicability the Tribunal should only consider that issue starting from the point at which the employees who make the section 192 claim have come to know of the protective award on the back of which they are now seeking an award for themselves. The original award was not made until promulgated on 24 October 2000; and thus time, in terms of reasonable practicability, did not begin to run until that date.
16. The Originating Applications of the group of employees who were the Applicants in the hearing with which we are concerned, according to the finding of the Tribunal, had all been presented by 21 March 2001. Thus the issue was whether it was not reasonably practicable for those complaints to be presented earlier, having regard to the chronology we have set out. The Tribunal addressed this issue at paragraphs 22 and 23 of its reasons. They found that all the applications had been made within a reasonable time from the time when it became practicable to make an application, i.e. 24 October 2000 and from the time at which the Applicants had acquired knowledge of those Applications thereafter. We put forward 24 October as the date on which knowledge was or could have been acquired; but that, of course, would have been the first possible date. Knowledge would actually have been gained on or subsequent to that date.
17. There is no suggestion that, in so deciding, the Tribunal applied the wrong test. The attack that Mr Galbraith-Marten, on behalf of the employers, makes today is this. He says that in about 30 cases the employees did not in fact attend the hearing and, because they did not attend the hearing, there was no evidence from them as to when they, as individuals, first learnt of the decision or as to why and in what circumstances they were not able to present their applications earlier. Thus, he says, the Tribunal erred in law in concluding in favour of those non-attenders on this issue.
18. However, the remaining Claiments did give evidence; and they obviously gave evidence which was persuasive to the Tribunal. They gave a cohesive and no doubt consistent account to the Tribunal as to when and where the employees were acquiring knowledge of the award that had been made. The Tribunal were alive to the point about the absence of evidence from the non-attenders; they addressed the point specifically in paragraph 23 of their reasons. They said that all the evidence from all of the Applicants who did attend, and there were many of them, was similar. They applied, the Tribunal found as fact, as soon as they learnt that the protective award had been made. They were satisfied, said the Tribunal, that once each Applicant received information to the effect that he could or could not apply, then application was made. They therefore found that all of the applications were made within a reasonable time and extended time "so that all originating applications are presented in time."
19. It is, in our view, not arguable that the Tribunal erred in law in adopting the approach which appears clearly from paragraph 23. A very substantial number of the employees had given evidence. The Tribunal were entitled to draw an inference from what that body of employees said in evidence as to what the experience was of those employees who had not attended. It is wholly familiar in group type litigation for some employees to give an account which may or may not be accepted as the same account or a similar account to that which would have been given by others if they had given evidence. It would have been enormously lengthy for everybody to parade through the witness box or, in this case, to the witness table; and it is, in our judgment, not a mistake of law at all or arguably so for the Tribunal to treat what they had heard as sufficient to enable them to make a judgment in respect of all of the applicants, whether attending or not.
20. In fairness, we need to go on to say that, even if we had taken a different view on this issue, we would not in the exercise of our discretion have allowed the employers to amend their Notice of Appeal substantially out of time in order to add a very substantial further batch of employees as Respondents to the appeal. We would take the view that it would be substantially prejudicial to those employees, in circumstances in which most of their colleagues have received or should receive a payment, for them for the first time now to learn that the payment which they thought had been awarded in the summer of last year might now be taken away by reason of their being served with appeal papers in February or March of this year.
21. Of course it is necessary to weigh that prejudice against the prejudice to the employers. It is necessary to weigh it as well against any explanation that is given by the employers. We are entitled to regard the presence or absence of an explanation in circumstances such as these as the most important or certainly as an important factor. We have heard no satisfactory explanation as to why these employees are sought to be joined in so late. We understand that, before the hearing in June, it must have been extremely difficult to keep an accurate picture of all 100 or so IT1's that were coming in to the employers; but records must have been available as to who was dismissed and when; and there has never been any doubt as to who the non-attenders were because there is a list of non-attenders set out in the Tribunal's decision. Thus there was never any difficulty for the employers in identifying precisely who were or could have been the targets of ground 3 of the Notice of Appeal.
22. However, what we say about that may be of less importance having regard to the view we have taken that there is not an arguable case under ground 3 in any event.
23. We turn, therefore, to grounds 1 and 2 where we take an entirely different view about the merits. Because we feel, at least in the cases of those employees who were named in the original Notice of Appeal, that there is an arguable case in relation to ground 1 and ground 2, we need not spend very much time on the detail. We have already set out that the first ground is that, in the case of two of the original employee Respondents, those employees were not dismissed at all and thus they should not have fallen within the class of persons in respect of whom a section 192 application could be made. The point was taken before the Tribunal; the Tribunal appeared to have missed it, so far as one can tell from their decision. Plainly it is arguable in the case of those two employees that the Tribunal erred and thus that ground of appeal should go forward for an appeal inter-partes at a full hearing.
24. However, we do not see any reason why the employers should have leave or permission to amend the Notice of Appeal so as to join in a third employee, Miss Irving, to ground 1, she not having been included originally in the Notice of Appeal. While we cannot say that the argument that the non-attenders were identified applies in this case, nonetheless balancing prejudice in the one direction and the other and having regard particularly to what we see as a lack of satisfactory explanation for what has happened, we do not think that leave to appeal so as to allow a further Respondent to be joined to this ground should be granted. Thus the appeal will proceed only in relation to the two original employees who fall within it.
25. So far as the second ground is concerned, it is submitted that all four of the original employee Respondents were not dismissed on 12 November 1999 and thus do not fall within the class identified in the first Tribunal's order. It may be pure chance that that order identifies a class by way of a definition which includes the date of dismissal; but it does; and we think that here too there is an arguable point of law. The employers seek to add four more employees as Respondents for the purposes of this ground of appeal, one of them being Miss Irving who was sought to be added in relation to the first ground of appeal. For the reasons we have already given we do not grant leave to amend in that respect either.
26. We apologise for the length that this hearing has taken and the length of this judgment; we have come to this conclusion overall - ground 1 and ground 2 can go forward for a full appeal in relation to the original employee Respondents, otherwise the appeal is dismissed.