United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARC JONES (Solicitor) Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF
For the Respondent	MR JEFFREY JUPP (Of Counsel) Instructed by: Messrs Thimbleby Fisher Solicitors 45 Silver Street Conningsby Lincoln LN4 4SG


 


JUDGE J ALTMAN

1. This is an appeal from the Employment Tribunal sitting at Boston on 13 October 2000. The appeal came before the Employment Appeal Tribunal on 18 June 2001 when the Tribunal presided over by Mr Commissioner Howell QC on a preliminary hearing, adjourned all the original grounds of appeal. However, at that time it appears the Appellant who was the Respondent through his representative identified another ground namely that the claims, on the face of it, for pay in lieu of notice and holiday pay, were out of time.
2. The Tribunal had not considered whether that was correct and if so whether it was reasonably practicable for the claim to have been made in time and if not what the reasonable period of time should be. The matter has never been argued before the Employment Tribunal where the Chairman sat alone and was first identified effectively at this Employment Appeal Tribunal. The matter now comes before us on that ground. Effectively the parties, once that matter had been raised, agreed that it should properly be referred back to the Employment Tribunal. However when the matter was listed before the Employment Appeal Tribunal again on 9 October 2002, the proceedings did not fully reflect the issues to be determined and the Employment Appeal Tribunal did not have the full argument addressed to it as to whether or not there should be a remission.
3. There is a very well established body of judicial authority that the Employment Appeal Tribunal should not entertain a point of law for the first time not taken before the Employment Tribunal. This case however, concerns the exception to that principle. What is here being dealt with is an issue as to jurisdiction and it has been pointed out that that is specifically addressed in the case of Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 where in paragraph 12 reference is made to the case of House v Emerson Electric Industrial Controls [1980] ICR 795 and the Court of Appeal in the Glennie case cited with approval the judgment of Talbot J who having set out the general principle to which I have already referred said:

"- except, in our view, that where the matter raises the question of jurisdiction, (that is to say, whether the industrial tribunal claimed jurisdiction, or refused to accept jurisdiction) it is open, even if that matter was not raised before the industrial tribunal, to argue it before the appeal tribunal. It would seem to us quite contrary to any principles of justice not so to hold."

4. That passage is not on the face of it altogether clear in the sense that it seems to anticipate that the industrial tribunal has done some overt act in claiming jurisdiction or in refusing to accept jurisdiction. But it is quite clear from the very nature of the issue of not being taken before a tribunal that the use of the words 'claim jurisdiction' is simply another way of saying that the case proceeded to a hearing before the Tribunal.
5. The case before us is just one such case. The statute makes clear that the Tribunal does not have jurisdiction to entertain a claim unless it is brought within a specified time or is not reasonably practicable within such other time as may be considered appropriate.
6. Accordingly, we are driven to conclude that this appeal raises an issue of jurisdiction. It was not taken in the Tribunal below but nonetheless it is right that it should be taken at this level. We find that the Tribunal erred in law. There can, of course, be no criticism of the Tribunal for failing to deal with the matter not raised before them. The order is that this case in relation to the claims for pay in lieu of notice and holiday pay is remitted to a freshly constituted Tribunal, whether it be a chairman sitting alone or otherwise, to determine whether the claims were presented within three months of the effective date of termination and if they were not whether it was not reasonably practicable for the Respondent to bring those claims within that three months period.