United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ALISTAIR HODGE (of Counsel) Instructed by: Messrs Phillips Solicitors Town Gate 38 London Street Basingstoke Hampshire RG21 7NY
For the Respondent	MR IAN CLARKE (The Respondent in Person)


 


SUMMARY

Practice and Procedure – Appearance/Response; 2002 Act and Pre-action Requirements; Chairman alone

CPR part 2.8 provides a clear illustration of the rule on counting the 28 days which must elapse between a grievance and a claim. The earliest date following a grievance on a Monday is the Tuesday, four weeks later, leaving 28 clear days when neither a grievance nor a claim is made.

A Chairman may sit alone on an unfair dismissal claim when it is "not resisted" and this includes when a Respondent is ordered to play no part in the proceedings because it did not submit a response. Even if the putative Respondent seeks to defend the case, it is not allowed to resist and the Chairman may sit alone.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about two aspects of Employment Tribunal procedure: counting the days from the lodging of a grievance to the presentation of a claim for unfair dismissal, and when a Chairman may sit alone on such a claim. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal Chairman, Mr M Kurrein, sitting alone at Southampton, registered with reasons on 8 March 2006, and his refusal to review the judgment sent in a letter of 16 March 2006. As he does, we will take both sets of reasons together. The Claimant represents himself.

The Respondent was debarred from taking part in the proceedings but is here represented by Mr Alistair Hodge of Counsel. The Claimant claimed constructive unfair dismissal. The Respondent would, if it could, contend it did not dismiss him actually or constructively.

The issues

3. The essential issues were to decide whether the Claimant was justified in resigning on 7 October 2005 with two weeks' notice by reason of the Respondent's action as a fundamental breach of his contract. As relevant on appeal the issues are:

(a) Was the claim made in accordance with the 2002/2004 regime for the presentation of a grievance, leaving 28 days before a claim?

(b) If it was, should the Chairman have sat alone on this case, the Respondent being debarred from presenting a response?

(c) Did the Chairman err in his depiction of the duty of trust and confidence and his finding in the Claimant's favour?

(d) Was the award of four years' forward loss perverse?

The Chairman decided in favour of the Claimant on his substantive claim and procedurally in his favour on the 28 day point. The Respondent appeals. Directions sending this appeal to a full hearing were given in chambers by HHJ Pugsley and members.

The legislation

4. The relevant provisions of the legislation are as follow. By the Employment Act 2002 a complaint may be made to an Employment Tribunal about the subject of a grievance. Section 32 provides so far as is relevant:

"(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with.

(4) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

(b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint.

…

(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if—

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c 17) (employment tribunal procedure regulations)."

5. A Tribunal is required by the rules to adopt a procedure for handling claims which are started, so rule 1 of the 2004 Rules provides as follows:

"1 (1) A claim shall be brought before an employment tribunal by the claimant presenting to an Employment Tribunal Office the details of the claim in writing. Those details must include all the relevant required information (subject to paragraph (5) of this rule and to rule 53 (Employment Agencies Act 1973)).

(4) Subject to paragraph (5) and to rule 53, the required information in relation to the claim is—

…

(h) whether or not the claimant has raised the subject matter of the claim with the respondent in writing at least 28 days prior to presenting the claim to an Employment Tribunal Office;"

6. Responses are regulated by rule 9, which says this:

"9 A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to—

(a) make an application under rule 33 (review of default judgments);

(b) make an application under rule 35 (preliminary consideration of application review) in respect of rule 34(3)(a), (b) or (e);"

7. The jurisdiction of a Chairman to sit alone is regulated by the Employment Tribunals Act 1996, section 4. Broadly speaking, most claims are to be determined by a three-person Employment Tribunal except certain ones which must be heard by a Chairman sitting alone, unless the Chairman decides to sit in a panel of three. The grounds upon which a Tribunal Chairman is justified in sitting alone include the following:

"4 Composition of a tribunal

The proceedings referred to in subsection (2) are—

(g) proceedings in which the person (or, where more than one, each of the persons) against whom the proceedings are brought does not, or has ceased to, contest the case."

The Tribunal directed itself by reference to the relevant provisions but the Chairman did not concern himself with the 'Chairman alone' point, which is raised only on appeal.

The facts

8. The Respondent, in administration, is a printing press. The Claimant was employed by it in what is now agreed to be employment (not self-employment) from 1997 until the relationship ended by his resignation on 21 October 2005, following a letter of notice given on 12 October 1995. The Tribunal Chairman accepted the evidence of the Claimant about the circumstances leading up to his dismissal:

"3. ...'On about 4 April 2005 I applied for the internal vacancy of Deputy Supervisor in the print room in factory H. This was to be a day job with a pay rise above my current pay scale, to date this has not happened. On about 14 September 2005 I was advised by the Senior Supervisor that the Production Director would like a word with myself regarding going back on shift and losing the promotion that I had been given. This has been given to someone else without any consultation with myself. Despite several attempts to speak with the Production Director I have been unable to put my case in person. I feel this is unacceptable and demeaning. I have had no disciplinary measures against me or any complaints about my ability'

It was in those circumstances that the Claimant tendered his resignation. That did prompt a meeting with the Production Director, Mr S Bunyan, but no resolution of the Claimant's grievance was forthcoming. In those circumstances, his resignation stood and took effect on 21 October 2005".

9. The Chairman addressed himself to the law relating to constructive dismissal which he described as relatively straightforward, and said this:

"5. I have no doubt that the Respondent's action in promoting the Claimant and promising him a pay rise and subsequently demoting him, having not given him that pay rise, without any consultation whatsoever, was conduct that was likely to breach the implied term relating to trust and confidence. Such a breach would inevitably be a fundamental breach of the employment contract. It is clear to me that the Claimant resigned promptly in response to that breach. I therefore find that the Claimant was dismissed by the Respondent.

6. I similarly have no hesitation in finding that that dismissal was unfair. In any case involving unfair dismissal, the onus is on the Respondent to show what the reason for the dismissal was and that it was a potentially fair reason, such as conduct or capability. The Respondent has failed to discharge that burden. There is no evidence before me as to any potentially fair reason for the Claimant's dismissal. It is, in my view, unfair."

He then went on to award compensation which paid attention to the fact, as it was then presented to him, that the Claimant had been engaged since 1978 and was aged 52 with an unbroken record of unblemished service. He awarded amongst other things, forward losses of £10,400 representing four years at the difference in pay between his former earnings and the earnings which he obtained in a new job, which he was thankfully able to obtain very quickly. In a subsequent review, it was accepted that the date should be 1997.

The Respondent's case

10. Mr Hodge, for the Respondent, submitted the Employment Tribunal Chairman had erred in law in matters which affected the jurisdiction. First, in respect of the 28-day period, there was simply an error in calculation. Although on the form the Claimant had asserted that he had complied with the procedure, as a matter of factual observation, 28 days had not elapsed.
11. Secondly, the Chairman acted outside his jurisdiction in sitting alone to hear an unfair dismissal case, because it could not be said the Respondent was not resisting. Letters from the leading light of the Respondent, Mr Bunyan, which were available to the Chairman, showed in terms that he wished to defend even though a response had not been put in by the company.
12. Thirdly, the Chairman was wrong in his citation of the law relating to constructive dismissal, for he had missed out an important passage in the speech of Lord Nicholls in Mahmud v Bank of Credit and Commerce International SA [1997] IRLR 462, which requires attention to be given to whether or not there was a reasonable cause for the Respondent's action in taking the steps alleged.
13. Fourthly, the award of four years' forward losses is perverse: one year would be correct.
14. Finally, he contends that the Chairman acted outside, and without paying attention to, the overriding objective. By the end of his argument, a number of those points had either fallen away or had faded into insignificance, but we will deal with them all.

The Claimant's case

15. The Claimant complained that the Respondent had failed to lodge documents and bundles in time and serve them on him. As we pointed out, he was not in difficulty and could answer the points. Mr Clarke's principal point was that the 28 days, calculated correctly, showed that his claim was made timeously. He made a number of submissions relating to the circumstances leading to his resignation but we did not need to trouble him with that, because they were findings by the Tribunal Chairman in his favour.

The legal principles

16. The legal principles to be applied in this case appear to us to emerge from the following authorities. A Chairman considering sitting alone is under a duty at least to consider whether it is appropriate for him to do so, see Gladwell v Secretary of State for Trade and Industry (UKEAT/0337/06). The rules on counting time were set out in the Court of Appeal's judgment in Consignia plc v Sealy [2002] ICR 1193, and they continue to be relevant to the presentation of claims by fax and email, see IDS Handbook Employment Tribunal Practice and Procedure, pages 97-99, and Tyne and Wear Autistic Society v Smith UKEAT/0652/04 HHJ Richardson. The CPR provides guidance on the counting of time, which is to be used by us when we are in doubt and there is no rule of our own.
17. For the purposes of Employment Tribunals, where claims and responses can be submitted on the internet, there is a 24 hour system so that when a deadline expires on a given date it expires at midnight. In CPR part 2.8, an example is given as to the meaning of time. A period of time expressed as a number of days should be computed as 'clear days'. Clear days means that in computing the number of days, the day on which the period begins and, if the end of the period is defined by reference to an event, the day on which that event occurred, are not included. For example, the court is to fix a date for a hearing. The hearing must be at least 28 days after the date of notice. If the court gives notice of the date of the hearing on 1 October, the earliest date for the hearing is 30 October.

Conclusions

18. We prefer one central argument of the Respondent and dismiss the rest, and yet we have decided that the appeal should be allowed on that basis. The 2004 Regulations set up a regime which is very difficult for ordinary workers and employers to understand and is characterised correctly by Underhill J in this court as rebarbative. In this case the rules have had a harsh effect on both the parties and they illustrate the firmness of the rule and the lack of discretion.

The 28-day point

19. We will take the points in order in which they were raised. First, an issue arose as to whether a step taken by the secretary of a Tribunal to accept this claim form was administrative and not the subject of a review. As is clear from the judgment in Butlins Skyline Ltd & another v Beynon (EAT/0042/06), such decisions are susceptible to appeal. There is no issue now as to whether the regional secretary acted correctly for the Chairman, both first time and on review, was fully seised of the issue as to whether or not the 28-day period had elapsed and thus the issue can be resolved on appeal.
20. As to the point itself, we consider that the application of the rules puts this claim two day out of time. A grievance was lodged on Friday 7 October 2005, and the claim form was received by the Employment Tribunal on the internet at 19:01 on Thursday 3 November. In the ordinary course, where a court orders something to be done within 28 days, in our example it would have expired on Friday 4 November. But as is clear from the illustration in the CPR (where what is required is the elapsing of a period of time before an event can occur) the 28 days must come and go before the action can be taken. This is easily seen by reference to the calendar in 2006 where, for example, a grievance put in on Sunday 1 October could not be the subject of a claim presented to a Tribunal until Monday 30 October, leaving 28 clear days in between the two bookends of 1 and 30 October. A simple rule therefore is if you put a grievance in on a Monday you must wait until the Tuesday four weeks later - in other words, 28 days plus a day - before presenting a claim. In this case the claim was put in two days early.
21. This is a matter of jurisdiction. The language we have cited from the statutes, the regulations and the rules above make it clear that the case cannot be heard. The purpose of the regime is to ensure that claims are dealt with by an employer before resort to an Employment Tribunal. At least an opportunity is given to the employer to resolve, in this case, a grievance about what was happening to the Claimant and his job. It may seem rather arid in this case, because there was no possibility of a grievance being resolved in the light of the approach by the Respondent after this - and indeed its failure to answer the claim form. But that is a jurisdictional issue and it resolves this case.
22. We will deal with one further argument which relates to the construction of s32(6). It is whether a claim must be accepted if it is simply apparent on its face that the grievance procedure has been adopted. As in this case, a box is ticked on the claim form indicating that the grievance procedure had been complied with. That, on its face, would give the regional secretary power to accept the claim, but once the matter is before the Chairman or a Tribunal, particularly when it is the subject of an application (as in this case) it must be looked at more carefully. A specious assertion cannot survive and so when a Claimant asserts that he has complied with the grievance procedure, including allowing 28 days to elapse, the secretary commits no error of law in allowing it to go forward. But if on analysis, it proves to be incorrect, not by any intentional misleading by the Claimant but simply as a matter of arithmetic, the matter can be unpicked. The word 'apparent' does not assist in this analysis and an assertion that 28 days has elapsed, apparent on the form, will not allow it to survive if only 27 (here 26) days are found to have elapsed.

The Chairman-alone point

23. The Respondent did not put in a response and the secretary had already written to the Respondent, enclosing the notice of claim, on 9 November 2005 saying this:

"If your response is not received by 07/12/2005 and no extension of time has been agreed by a chairman before that date, you will not be entitled to defend this claim."

24. Due to an oversight, it is said by Mr Bunyan, the claim was not attended to. He indicated in writing on 6 February 2006 that he wanted to be given the opportunity to defend the claim. He set out six points on which he would seek to defend it and sought the exercise of discretion. The Tribunal secretary responded, giving a judgment of the regional Chairman, Mr Peters, saying that rule 9 applied and he could not take part in the proceedings. It is a clear, almost verbatim, recitation of the rule.
25. We can see the force in Mr Hodge's point - which he put, but in due course did not take to its conclusion - that Mr Bunyan was indeed resisting within the meaning of rule 9. However, in our judgment, resisting must come from the right to resist; it does not here include a situation where a party has been ordered to take no part in the proceedings. True it is that he may stand on the sidelines and complain, but none of that is of any relevance. The hearing will go ahead; the party will be debarred from taking any part and this (within the meaning of these regulations) includes a person who in a colloquial sense resists but in a legal sense does not resist because he has been ordered to take no part in the proceedings. There is no error of law in this approach. Thus, the contention that the Tribunal Chairman lacked jurisdiction must fail. This was a case where there was no legal resistance. We need not resolve the interesting point about what would happen when the matter comes back for a remedy (but reference should be made to Terry Ballard v Stonestreet, (UKEAT/0568/06)).

Fundamental breach

26. We then turn to the issue of substance, which is whether the Tribunal Chairman erred in law in his analysis of the legal test for fundamental breach. The simple point, as accepted by Mr Hodge, is that the last part of Lord Nicholls' test (whether there is reasonable cause) is a defence for an employer which has thus far done acts which would constitute a breach. It is true that the Chairman does not expressly turn to whether or not there was a reasonable cause but, since it is a defence, it has to be raised by a Respondent. There was no Respondent there to raise it. Thus there was no error by the Employment Tribunal in deciding the matter on the material which was presented to it by the Claimant and which, it has to be said, showed no scope for reasonable cause to be presented. The findings by the Chairman are all one way and, in the absence of what would have to be a strong argument on reasonable cause, the Chairman was bound to find in favour of the Claimant.

Compensation

27. Finally, on the issue of compensation, again Mr Hodge very realistically accepted that this was not a good point. There was an opportunity for the Chairman to review again his judgment. There is no bar to a Chairman reviewing more than once if new circumstances arise, as they plainly did here, for the Claimant accepted that the dates of his employment were incorrect.
28. One aspect of the award of future loss is the Chairman's recitation that the Claimant had many years of unblemished service. The question is whether he was wrong to award four years' forward loss. As we pointed out in debate, that is forward looking and not backward looking although it is fair to say that there is some reflection of the long service the Claimant had. This judgment stands the test. All the factors indicating why four years' forward loss were appropriate are set out by the Chairman. That is a matter of fact and appreciation for him. This is an allegation of perversity. We cannot say that four years is perverse. But a procedural approach appeals to us. Why was this point not taken when the Chairman was asked to review his judgment? As to which, Mr Hodge engagingly accepted that there was no answer. Further, we have before us a judgment on review by consent. Again, we cannot see how a judgment by consent can be the subject of an appeal. This ground is dismissed.
29. We would very much like to thank Mr Hodge and Mr Clarke for coming today. The Appeal is allowed, and the award is set aside.