United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK MULLINS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from the Decision of the Employment Tribunal sitting at Watford on 25 June 2002, which comes before us by way of preliminary hearing to determine if there is a point of law properly arguable in full before the Employment Appeal Tribunal.
2. Mr Mullins has appeared for the Applicant without fee, under the auspices of the ELAAS scheme. We wish to record our enormous indebtedness to him. There is an issue in this case which relates to the way in which Mr Onukegbe was represented before the Employment Tribunal at Watford. It is quite clear to us, however, that so far as today is concerned, Mr Mullins has examined the case in considerable detail, and has placed before us every argument that can properly be raised. Whatever the result of this appeal, Mr Onukegbe should know that his appeal has been very professionally and competently handled before us, if we may say so without being patronising.
3. The issue before the Employment Tribunal was whether the claim for unfair dismissal was in time or not. Mr Onukegbe began work for the Respondents on 30 August 1997. He made a claim for both constructive unfair dismissal and unpaid wages arising out of his employment, which came to an end at a date which the Employment Tribunal had to identify for the purposes of its preliminary Decision on whether the claim was in time.
4. Mr Onukegbe complained that working on the night shift every day, he had to stay late, some quarter of an hour, to cover for the day shift person who claimed that he had permission from management to come late. Mr Onukegbe thought that he should receive compensation by way of overtime pay for that, which on any view must have been a very modest amount, but his requests, he says, were simply ignored.
5. Then, it appears that in the January before he made his application, he had had to stand off work for some two weeks without pay, dealing with police clearance. Then he complained that his wages were regularly short-paid, and management was not forthcoming with the justification or prompt rectification. Eventually, when, in his words he "could take no more of it", he alleges that he requested to be transferred from the contract, and again, simply received no reply. He claimed that because he could not cope any longer with management's disregard and lack of response to his problems, that he withdrew himself from the company.
6. Mr Onukegbe says that he was paid up to 30 June, but his P45 showed the date of leaving as 20 July. However, before the Tribunal was able to adjudicate upon those complaints, and form a judgment on the real matters that Mr Onukegbe wanted the Tribunal to decide, they had to apply the rule that says that any applicant must make a claim within three months of completing employment. In his Originating Application, the date of termination was put at 20 July; the application to the Tribunal was received on 18 October, so if that date was correct, the claim was just in time. In the Notice of Appearance, on the face of it, the employers, the Respondents, agreed with that date. The P45 issued by the company also agreed with that date, so on the face of it, both parties appeared to be saying that the claim was in time.
7. However, when the matter came to the Tribunal the Respondents said that they had looked into matters and took the point that that date was in fact incorrect, and that was a submission that was accepted by the Tribunal. We deal first with the position as it presented itself to the Employment Tribunal. They looked at the letter of resignation in which the Applicant said that his last day of work would be 30 June. They looked at the accounting calendar and payslips, which showed the last day of work they found as 22 June, his being paid for that the following week Friday 29 June, a week in hand.
8. On the face of the evidence before the Tribunal at the time, that was clearly an inference they were entitled to draw from that material. They went on to find that the reason why there was no money for the week ending the 29^th was because the Applicant was on holiday, for which he should have received one week's holiday pay on 6 July, although it was only paid on 13 July.
9. We have seen an accounting record dated 13 July which shows a holiday payment which appears on the face of it to have been for two weeks, not one, but the Employment Tribunal found that that was a late payment of holiday money, which generated on the computer a leaving day of 14 July. It must, however, be recorded that even if that were the correct date of leaving, the claim would not have been in time. There was a claim for twelve hours outstanding wages, and this was in due course paid. The computer recorded this on 20 July and the P45 was adjusted for that purpose.
10. We have not the evidence before us, but it seems to us that it may well be that on document 12, to which we have just referred, the short payment of £84 is recorded as for a period of twelve hours, and Mr Mullins has pointed out that the holiday pay, on the face of it, does appear to have been underpaid if it were for two weeks, because it records one hundred hours, whereas for two weeks, Mr Onukegbe would normally have worked one hundred and twelve hours. If that is the case, the shortfall in payment, on the face of it, was holiday pay due, at the latest, on 14 July and supports the finding of the Tribunal that 20 July was an artificial date, simply because of the way in which the computer software was arranged within the Respondents' computer.
11. Solicitors acting for Mr Onukegbe wrote to the Respondents on 22 March, the Tribunal find, showing a last working day of 30 June, which is a factor that tells against his case. That is a letter written many months after the events with which the Tribunal were concerned. They pointed to his witness statement in which he made a similar assertion, that he withdrew after giving formal notice on 30 June, and it was the P45 that showed the later date of leaving of 20 July, and it was his statement that he was paid up to 30 June.
12. However, the Tribunal then go on to deal with the explanation of the Applicant. The curious feature is that we are told that the Tribunal entertained no oral evidence, and they describe what followed as simply a submission. The parties were represented; Mr Onukegbe had Counsel, but no application was made to the Tribunal for them to consider oral evidence.
13. The submission was made that although the resignation was submitted on 23 June, it was effectively put on hold because the Applicant was asked to think about it on holiday, and consider whether he really wanted to leave. He said that in fact it was on 11 July, during the week, that he said that he wanted to leave, so that when he came back from holiday on 14 July, and added the week's notice to 20 July, one arrived at the proper date of termination reflected in the P45.
14. The Employment Tribunal then found that the response was that the payments received were those pointed out, and that the Applicant was only paid up until 22 June, and they were entitled to base that on the findings of fact in paragraph 8, to which I have referred, of the record in the accounting calendar and payslips which were before them.
15. We have been told that in fact Mr Onukegbe had handed to his Counsel two documents which are pages 15 and 16 of our bundle, but which his Counsel did not hand to the Tribunal. Mr Onukegbe, through Mr Mullins, has voiced his general concern that his case was not presented in a way that made him feel that the issues were being properly put forward on his behalf, in any event. Nonetheless these are significant documents because they show actual hours worked during two weeks, one ending 22 June, and the other ending 29 June, so that on the face of that document, they showed for the tax week number 13, a payment for work up to that date, 29 June, not payment on that date of a week in hand for the earlier period, as had been found by the Employment Tribunal.
16. It is a pity that that material was not before the Employment Tribunal, and, indeed, the document at page 12 may have made more sense and may indeed have led the Tribunal to reconsider its findings if viewed in the light of those two documents, because those payments for the tax weeks 12 and 13, and the holiday pay document, to which I have referred, shows a payment in the tax week number 15. This added to the argument of a continuing employment relationship during that period, and the argument that there was there payment for real holidays and not for simple accumulated holiday pay on termination.
17. In addition, it would have provided support, no doubt, for the Tribunal to consider the submissions of Mr Onukegbe that he was on holiday during employment, reconsidering his decision to resign at the instance of his employer. However, one cannot escape the conclusion that on any view, that would have taken his employment up to 13 or 14 July only, and would not have made it in time.
18. However, without such information and on the information before them, the Tribunal made a finding that any holiday was from the week beginning 23 June, and even if the Applicant had a further week's holiday, that only went to 14 July, which still meant he would be out of time. It is clear that if the Employment Tribunal had had the documents showing payment for hours worked in the week to 29 June, they may have been caused to review their finding that that was a holiday week, if the Applicant was on holiday in any event.
19. The Tribunal, on the information before them, went on to say that they accepted the arguments of the Respondents, and even on the Applicant's own argument, his employment ended on 14 July. We are bound to say that, subject to one matter, that appears even on the information we now have, to be correct. However, Mr Mullins says, in effect, "Who knows! Had this additional information been before the Tribunal, they may have reviewed their assessment of the Applicant's evidence as to the final date of leaving".
20. I turn now to the main grounds of the Applicant in this appeal, and the first is to draw attention to the fact that both parties were saying that 20 July was the date of termination in both forms before the Tribunal. Insofar as that is to be regarded as a statement and a representation which cannot be gone behind, which estops the Respondents from contending for an earlier date, we have to say that that submission is unsupportable. If the Respondents had made a mistake about dates in their Notice of Appearance, they were entitled to ask the Tribunal to consider the true date. It was also potent evidence of when the date of termination actually was, but it seems to us that that was part and parcel of the evidence that the Tribunal took into account, when evaluating the factual issue before them, and we are driven to conclude that no point of law arises from this ground.
21. As to the other findings of the Tribunal, we are driven to the conclusion that on the information before them, they were entitled to conclude that the last day of working was 30 June, on the basis of the Respondents' records placed before them, and the way in which, in some respects, the Appellant himself had put his position, through his solicitors and in evidence in his statement. They were entitled to conclude, on the evidence before them, that even if the Applicant was correct, his claim would not have been in time because he only explained the situation to 14 July.
22. There are circumstances in which the Employment Appeal Tribunal will admit further evidence in order to consider issues, even at the appeal stage. They are wholly exceptional and essentially relate to those situations where the material was not reasonably available at the time of the Employment Tribunal hearing, and even then in circumscribed circumstances. In this case, the material was available and was, if Mr Onukegbe is right, with his barrister. This was a careful Decision, on the face of it, from the Employment Tribunal, and we are sure that if they had had that information before them, they would have incorporated it in the factual analysis that they had to consider.
23. In those circumstances, we are driven to conclude that this is not case in which we are able to bring in to the arena the evidence that we have now seen, and we would say that even if we did, Mr Onukegbe would still have the hurdle to get over which would be that after the end of that holiday payment in week 15, on 13 July, he would still have to provide the factual basis for concluding that his employment still continued for another week. Accordingly, we are driven to conclude that the Employment Tribunal committed no arguable error of law in their approach to their Decision on the material available to them at the time, and that any further evidence cannot be admitted at this stage.
24. When an employee has a genuine grievance against his employer, and comes to the Tribunal to ask the Tribunal to consider whether he left in a way that constituted an unfair dismissal, it is always desirable that those issues are fully explored and dealt with, if possible. Unfortunately, Parliament has established a clear time limit which, in this case, really has prevented the Tribunal from looking at those grievances and it must seem unsatisfactory to a party to have lost the whole chance of a hearing and a claim on what appears to be simply a technicality, which is highlighted in this case when all that is being talked about is a few days either side of a cut-off point. However that is the way in which the Employment Tribunal and the Employment Appeal Tribunal have to apply the law.
25. We are driven to conclude that there is no arguable point of law in this case, and this appeal must be dismissed.