United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person, and Mr Ian Wilson Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J McMULLEN QC

1. This appeal concerns Tribunal procedure on a preliminary point, arising under the Employment Rights Act 1996 section 111 and the Sex Discrimination Act 1975. It is an appeal by the Applicant in those proceedings against a decision on two preliminary points at a hearing on 3 April 2001 where there was a determination in chambers on 25 April 2001 with Extended Reasons promulgated on 5 July 2001. The Chairman was Mrs R S Martin, sitting at London Central. The Applicant was in person, the Respondent was represented by Counsel. The Applicant claimed unfair dismissal and sex discrimination.
2. The issues before the hearing, a year ago, were identified as follows:

a) whether the Tribunal has jurisdiction to deal with the Applicant's complaint of unfair dismissal, having regard to section 111;

b) whether the Tribunal has jurisdiction to entertain the Applicant's complaints of sex discrimination, i.e.

i) are those complaints in time?

ii) if not, is it just and equitable to extend the time for bringing a complaint?

3. The Chairman has made a correction to the Decision which, as corrected, is that it:

a) had no jurisdiction to hear the Applicant's complaint of unfair dismissal;

b) had jurisdiction only to entertain the Applicant's claim of sex discrimination relating to incidents on 17 February 2000 and in April 2000.

4. The Applicant was originally employed full time by the London Borough of Camden as a Senior Solicitor in the Borough Solicitor's Department. He began his employment in March 1995 and became a part-time employee working twenty one hours a week in October 1996. His employment ended in July 2000. He lodged an Originating Application with the Tribunal on 16 May 2000. He complained of constructive unfair dismissal and sex discrimination. The Tribunal having convened for a preliminary hearing noted that although Mr Knodt had made a statement, it addressed not only the two preliminary issues, but went into some detail, as it put it, about the circumstances of his substantive complaints. No witnesses were called by the Respondents. Both parties made written submissions and there were agreed bundles of documents and authorities.
5. Turning to the first issue, the Tribunal found that on 14 May 2000, the Applicant wrote a letter making four allegations, one of sex discrimination and three relating to repudiation of contract, putting him in the position of being able to claim at a future stage that he had been constructively unfairly dismissed. The Tribunal went out of its way to decide that it was not concerned with the merits of the claims, but only an issue of jurisdiction. It was referred to section 111 of the Employment Rights Act 1996 which provides in material part as follows:

"(1) A complaint may be presented to an [employment tribunal] against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3) an [employment tribunal] shall not consider 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 effective date of termination…..

(3) Where a dismissal is with notice, an [employment tribunal] shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination."

6. The Tribunal held that in order for it to have jurisdiction the Applicant had to show that on 16 May he had either already been dismissed constructively, or otherwise, or that 16 May came within his notice period. Reference was made to the letter and to the Applicant's contention that he was giving notice. What the Applicant said in that letter was this:

"I seek to avail myself of the principles laid down in Hogg v Dover College and Alcan Extrusions v Yates in that, whilst the Council may have repudiated the contract, I reserve my right to claim that I have been constructively dismissed at a later time and to confirm that my remaining at Camden on the new terms relating to chargeable hours should not be taken as a waiver of my right to take the matter to the Tribunal. I continue working simply to mitigate my losses …."

The Tribunal found in favour of the Applicant that he was alleging constructive unfair dismissal and that that was what he was doing when he wrote the letter, but found

"nothing in the letter which amounts to notice to terminate. No notice period is indicated and no time from which the notice is to run is indicated. The letter contains insufficient information to indicate that it is [the Applicant] giving notice that he is to resign, it simply indicates that he intends to resign at some undisclosed date …..

It therefore follows that on 16 May Mr Knodt was still an employee of the Respondents and that no notice had been given by either party. The Tribunal therefore has no jurisdiction ….."

7. It is contended on his behalf by Mr Wilson, who appears for him today under ELAAS, and by Mr Knodt (who, at Mr Wilson's invitation, addressed us and we are grateful to both of them for the way they have put it) that the Tribunal failed to consider the impact of an authority cited in the Applicant's letter - Hogg -v- Dover College [1990] ICR 39 EAT. In that case, Garland J. indicated that a person could claim unfair dismissal and still be employed. However, for the purposes of section 111(3) the Applicant is unable to claim unfair dismissal, prior to the notice period terminating and there must be notice. We consider the Tribunal correctly analysed the meaning of the letter of 14 May and the principles laid down in Hogg -v- Dover College, as a matter of law against the requirement for complaints to be made within a relevant period of time, pursuant to section 111. In our judgment, this part of the Applicant's claim reveals no reasonably arguable point of law.
8. The Tribunal went on to consider its second preliminary point which relates to its jurisdiction to hear claims of sex discrimination. By its corrected Decision, the Tribunal has allowed the Applicant to bring claims relating to events in February and April 2000. The criticism which is made is of a paragraph in the Extended Reasons which says this:

"13 [The Applicant] has also argued that even if he is not permitted to pursue substantive complaints about matters which occurred between 1996 and the beginning of February 2000, he is nevertheless allowed to call evidence about all these matters as background to his complaint. It seems to us that the legislation has imposed time limits on applicants which, apart from the provisions of section 76(5) and (6) were intended to prevent an applicant from bringing evidence to the Tribunal about matters which could be described as 'stale'. Our view therefore is that in preparing his case for the substantive hearing Mr Knodt should be restricted to the matters which we have identified as relevant i.e. the October 1996 decision as legitimate background and the April 2000 complaint which is in time."

And we would add, as a result as a result of the correction, the event on 17 February 2000.

9. In our judgment, the Tribunal is there simply giving information about material which it took into account when it reached its decision on jurisdiction. Events in February and April 2000 are competent to be brought before it. The way in which those claims are made good by the Applicant will depend upon the background which the Tribunal has acknowledged should be permitted. It seems to us that on a proper reading of the Tribunal's Decision, and of its explanation in paragraph 13, it was not excluding the Applicant from bringing background material to the Tribunal which hears this case, in order to allow the Tribunal to adjudicate upon the two relevant complaints of 17 February and April 2000.
10. This Tribunal made its preliminary judgment probably before the report of the judgment of the Court of Appeal in Anya -v- University of Oxford [2001] ICR 847 CA which indicates that, by way of background, material may be adduced before an Employment Tribunal which is relevant to the decision which it ultimately makes. In our view, therefore, when the Tribunal was adjudicating on the preliminary issue as to jurisdiction, it was not adjudicating upon the full scope of the material which would be considered relevant by the Tribunal hearing the case, and in those circumstances, its Decision is, in our judgment, not capable of a reasonably arguable attack, and therefore we will dismiss the appeal.
11. In the qualifications which the Tribunal made at paragraph 12 and 13 of its Reasons and in its treatment of an application under the Human Rights Act 1998, the Tribunal was concerned about material being brought before a Tribunal which had not gone stale. Logically, as a result of our judgment, this case will be listed by the London Central Tribunal for a full hearing, pursuant to its decision on the preliminary points, and we would endorse the sense of urgency which the London Central Tribunal indicated in those passages.