United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL EPSTEIN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LUBA QC:

Introduction

1. There is before us, for preliminary hearing, the appeal of Mr Brown, arising from an Employment Tribunal decision reached by the London Central Employment Tribunal following a hearing on 3 February 2003. By their decision given on that date the Employment Tribunal reached the following unanimous conclusions:-

"(i) in case no. 2202109/02 the Applicant's complaints of wrongful deduction of wages are dismissed upon withdrawal;

(ii) in case no. 2204653/02 the Applicant's complaints are dismissed on the grounds that the Tribunal has no jurisdiction to determine them, they having been presented outside the prescribed time limit;

(iii) in case no. 2204653/02 the Respondents' claim for repayment of overpaid sick pay is dismissed upon withdrawal."

2. The Employment Tribunal's decision, as set out with extended reasons given on 27 February 2003, arises from a complaint that Mr Brown originally made of wrongful deduction of wages, (dealt with in the first aspect of the Tribunal's decision) but supplemented subsequently by a complaint he wished to bring of unfair constructive dismissal by his employers, First Security Guards Limited. As is plain from the summary of the Tribunal's decision that we have set out, the Tribunal found that that latter matter and, indeed, other related matters brought forward by Mr Brown, were presented outside of the prescribed time limit and accordingly they could not be entertained.
3. By a Notice of Appeal containing, essentially, two grounds, Mr Brown seeks to upset the decision of the Employment Tribunal on the basis that it erred in law. Both grounds go to the question of whether the Tribunal had jurisdiction to entertain the claim of constructive unfair dismissal and other associated claims, or, whether as the Tribunal held, that those matters were out of time.
4. This matter having been listed for preliminary hearing, Mr Brown has been represented before us by Mr Epstein, under the ELAAS Scheme. Mr Epstein, on consideration of the papers, formulated what is described as the appellant's skeleton argument, from which we have derived great assistance in our pre-reading for this preliminary hearing. Mr Epstein, in opening his oral submissions earlier today, has indicated that Mr Brown, the appellant, expressly adopts the submissions contained in the skeleton arguments, including an application by Mr Epstein, on behalf of Mr Brown, to amend the grounds of appeal.

The Proposed Amendments and Application for Extension of Time

5. We will deal first with the proposed amendment. The relevant background to the proposed amendment can be shortly expressed. It arises in this way. Mr Brown, having submitted an original Originating Application to the Employment Tribunal Service, wished to enlarge that complaint by introducing other material including, as we have indicated, material relating to constructive unfair dismissal. He was at that time represented by solicitors. On 1 July 2002 the solicitors wrote to the Employment Tribunal office in a letter, which we now have, in what appears to be final form, at pages 28A and 28B of the bundle. These pages were only made available in the course of the hearing today after enquiries prompted by this Employment Appeal Tribunal itself and through the good offices of Mr Epstein. By this letter, the solicitors then acting indicate that they had been instructed by the appellant to apply for leave to amend his complaint to include 8 specified matters. The letter is an application for leave to amend. It was then put before the Tribunal Chairman.
6. On 17 July 2002 that letter produced an answer from the Employment Tribunal office in the following terms:-

"Thank you for your letter of 1 July 2002 which has been referred to a chairman of the Tribunals, Miss Potter.

As the allegations contained in your letter relate to events after the date of your existing Originating Application, please include the new allegations in a fresh Originating Application and then apply for the two cases to be consolidated."

7. Mr Epstein, for the appellant, asks us to infer that that letter contains a refusal of the application for leave to amend. The reasons for refusal being that it is not possible to include in one Originating Application a ground or cause of action arising after the date of its original submission. We are prepared, for today's purposes, to infer that that is the correct construction of the letter of 17 July 2002.
8. By his first proposed amendment, Mr Epstein invites this Appeal Tribunal to entertain an appeal against the Chairman's ruling of the 17 July 2002. He invites us therefore to exercise an original jurisdiction not, it should be said, foreshadowed by any written application made prior to today's date and, indeed, as he candidly recognises, not an application of which the respondents have been given advance notice. That latter difficulty can, as he has indicated, be dealt with by adjourning the application or perhaps by a direction giving special leave to the respondent to apply to set any order aside. However, it is first for Mr Epstein to make a case that it is proper for this Employment Appeal Tribunal, sitting today on 18 June 2003, to entertain an appeal against the decision of 17 July 2002. That would be an extension of time for the admission of appeal of many months.
9. With Mr Epstein's assistance we have been reminded that this Employment Appeal Tribunal does enjoy a discretion to extend time in suitable cases. The most important criteria in the usual case in determining whether an extension of time should be granted, is for the person seeking the extension to establish a good reason for the delay. This simple requirement (good reason for the delay) is expanded upon in the well-known judgment of Mr Justice Mummery (as he then was) in the Abdelghafar case which was in turn approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111. That more expanded approach to the test of good reason for delay, is in three parts: (a) what is the explanation for the default?; (b) does it provide a good excuse for default?; and (c) are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?
10. Pressed by this Employment Appeal Tribunal in the course of exchanges, Mr Epstein candidly indicated that the only explanation for the default was the passage of time itself. There simply had been, as he put it, a delay in recognising that this point might be open to the appellant. Asked the question whether that was "good" excuse, Mr Epstein could advance no further material. He would have found it difficult to do so given that when the original decision of 17 July 2002 was received Mr Brown had the benefit of legal advice and representation through solicitors. A situation, it might be observed, that continued at least to the point of the Employment Tribunal's hearing in February 2003 at which hearing he was represented by Counsel. Indeed, to the extent to that it might be said that there was an "excuse" for not bringing this appeal forward earlier than February 2003, the matter was certainly alive or in play once the extended reasons of the Tribunal were given later in February 2003.
11. Mr Epstein therefore rests his whole argument, on this point, on the assertion that there are circumstances which justify this Employment Appeal Tribunal in taking an exceptional course in allowing this matter to be heard out of time. He contends that the point in issue was an important point of law, it relates to common practice in the Tribunals and (for reasons that he explained) the point is unlikely to come up in other cases. Finally, he urges that if the case goes through on the other grounds of appeal to the full hearing, then it might be sensible for this matter to go through also.
12. We have very carefully considered and weighed those submissions. However, we are not satisfied that any good reason had been shown for the delay in bringing, what would now be, a very stale appeal. Having considered carefully all the matters urged upon us by Mr Epstein we are not satisfied there is a good explanation why such a prospective appeal was not brought earlier to this Appeal Tribunal against the decision of 17 July 2002.
13. Although, as Mr Epstein has indicated in his able oral submissions, the point which might be canvassed in the Employment Appeal Tribunal is an interesting and perhaps difficult one, we do not find those circumstances alone justify such a very long extension of time. In those circumstances, in the exercise of what is for us an original discretion, we will refuse an extension of time and disallow the appellant from bringing an appeal against the decision of 17 July 2002.
14. The second part of Mr Epstein's proposed amendment intended to add a new dimension to the present appeal, is that he invites us to allow him to appeal that part of the Employment Tribunal's decision which itself dealt with the Chairman's earlier ruling of 17 July 2002. In particular, he urges attention to paragraph 33 of the extended reasons in which the Employment Tribunal say:-

"It was open to the Applicant at that time (that is, at or about 17 July 2002) to make a submission such as is now made so as to persuade the Chairman to vary her order. No such request was made. It is too late at this point to ask this Tribunal to vary the order of the Chairman in the way sought."

15. Mr Epstein invites us to infer that at paragraph 33 what the Tribunal must have been doing is entertaining an application to vary, or considering the possibility of varying, the order of 17 July 2002 and that it erred in law in failing to so vary the order of the Chairman. We have heard submissions briefly from Mr Epstein ably developing that contention. Sadly, we must reject it. There is no suggestion that there was before the Employment Tribunal in February 2003, an express application to vary or amend or re-open the order of the Chairman of 17 July 2002. No such request was made at any earlier stage between July 2002 and February 2003. We do not accept that the Tribunal was seized of an application with which paragraph 33 dealt. It is right to observe that the respondents to this appeal, in their written submissions at paragraph 17, expressly make the point that no such request was made to the Employment Tribunal at the February 2003 hearing.
16. Even if such an application had been made, it is difficult to see how the Tribunal in February 2003 would have properly been exercising any jurisdiction to re-open the decision of the Chairman of 17 July 2002. There appear to have been no material or relevant changes of circumstances. As Mr Epstein candidly indicated, the only change, if change it be, was that the point would be argued rather differently by a legal representative at this stage than it had hitherto been argued.
17. In all those circumstances we do not believe that it is properly arguable that the Employment Tribunal in February 2003 erred in law in not entertaining an application, if application there was, to re-open the Chairman's order of 17 July 2002 and there is, in our view, nothing in the assertion that they erred in law in failing to so re-open or vary that order.

The Original Notice of Appeal

18. Thus far our judgment has been concerned entirely with an application made before us today to amend the original grounds set out in the Notice of Appeal. We therefore now come to consider whether the two grounds set out in the Notice of Appeal are arguable and should thus proceed to a full hearing.
19. Each of these grounds is concerned to demonstrate that there is a document capable of meeting Rule 1 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 as being "an originating application". Further, that it was lodged in time in respect of the alleged unfair dismissal and other matters and that the Employment Tribunal in February 2003 were wrong to hold that no such document had been lodged in time. The Notice of Appeal, as helpfully developed by Mr Epstein in oral argument and in his written skeleton, relies on two documents. First, it is said that the letter of 1 July 2002, to which we have already referred, is capable of constituting an originating application because it contains all of the ingredients required by Rule 1 of Schedule 1 or, insofar as it does not, the omission of any particularly required or directed material is itself immaterial or it would be mere pedantry to insist upon its inclusion. There is an obvious or evident difficulty with that contention and it is that the letter of 1 July 2002, in its terms, purports to be an application for leave to amend an earlier application.
20. The second document relied upon as discharging the requirements of Rule 1 of Schedule 1, is a document submitted under cover of a letter dated 27 August 2002 which, again Mr Epstein urges, contains the material essential to fulfil the requirements of Rule 1 of Schedule 1. The evident difficulty with that submission is that the covering letter to which that document is attached, indicates in terms that it is a document which is to be followed by "a fresh Originating Application".
21. The Tribunal, in dealing with the contention that those two documents, or either of them, were capable of constituting an originating application said this at paragraph 36:-

"The Tribunal would be flying in the face of reality if it were to hold that the Applicant had submitted Originating Applications at times when his solicitors clearly acknowledged that this was not the case. We cannot treat documents which, by implication if not expressly, are stated not to be Originating Applications as if they were."

22. The points of law set out in the Notice of Appeal can, meaning no disrespect to their author, be collapsed into a simple and single proposition and that is that it is arguable that the labelling or label applied to each of the two documents, dated 1 July 2002 and 27 August 2002, can be ignored. What one must direct attention to is the substance. If the substance meets the requirements of Rule 1 of Schedule 1 then the terms of that statutory provision are satisfied and the document constitutes an Originating Application whatever its "label".
23. Having given the matter careful reflection, we are satisfied that this is a discrete point of law which emerges as to the true construction of the documents. We are not prepared to say that in relation to either of those documents the contention is unarguable. In those circumstances the Notice of Appeal, as originally drafted, will be allowed to stand and this matter will proceed to a full hearing before the Employment Tribunal. We shall say nothing as to the merits of the Notice of Appeal. It is not our task to do so. We are simply asked to determine whether or not a point is arguable and is a point of law and we are satisfied that it is both arguable and a point of law.
24. We would, before concluding our judgment indicate that, it being a strict point of law, it would be of the greatest assistance if Mr Brown could be legally represented when the matter stands in the list for final determination. This is the judgment of us all.