Appeal No.	 EAT/356/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 February 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MISS A MACKIE OBE
MRS T A MARSLAND

J STANLEY BUILDING CONTRACTORS	APPELLANT

MR K P TOMS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr T Linden
(of Counsel)
Messrs Granville – West Chivers & Morgan 
Solicitors
Central Chambers
50/51 Tredegar Street
Risca
Newport NP1 6BW	
For the Respondent	Mr K P Toms
IN PERSON	

MR JUSTICE LINDSAY (PRESIDENT)		This matter by way of a full hearing is the appeal of the erstwhile employer, James Stanley, who trades as J Stanley Building Contractors.  He appeals in the matter J Stanley Building Contractors v Mr K P Toms.  Mr K P Toms is the erstwhile employee.  Mr Linden now appears us now for the Appellant before us; Mr Stanley had been in person below and Mr Toms is in person before us today and was in person also below.

1.	On 6 August 1997, Mr Toms lodged his IT1.  It claimed: -
“Unfair dismissal and redundancy payments plus legal entitlements e.g. holiday pay.”
It gave the dates of his employment as August 1976 to June 1997.  In Box 9 of the IT1 Mr Toms made it clear that he complained of dismissal.  In Box 11, which says: “Please give details of your complaint” there was no specific date given for the dismissal nor any particular triggering event.  But amongst other things this was: -
“In late April 1997 Mr Stanley started to verbally complain about lack of work load for his business.  He verbally told me he had no money or work and he said he might have to lay me off until work picked up.  I objected to this but Mrs Stanley telephoned the Income Support and arranged for a payment to be made to me and my family.  
“I telephoned Mr Stanley on numerous occasions during the next months and he always gave me the impression that things would improve but I was not offered any work.” 

2.	Mr Stanley’s answering IT3 indicated that Mr Toms’ dates for employment were correct, in other words that June 1997 was the end date, but he denied that there had been any dismissal. What he said was: -
“Mr Toms made his own decision to leave at the time he did saying that he was going on holiday; when asked when he would be returning to work his reply was, well you haven’t got any work.”
And a little later he says: -
“Finally I would like to say I did not dismiss him and his job is available should he wish to take it as work is now starting to pick. up”

3.	There was a one-day hearing at Cardiff on 1 October 1997 and it has to be remembered that both sides were in person.  Summary reasons were given on 20 October 1997 and it was held that Mr Toms had been dismissed and that the date for the dismissal was 4 April 1997.  Paragraph 1 of the summary reasons said: -
1.“On the evidence we find the applicant was dismissed without notice on 4 April 1997 and that reason was redundancy due to lack of work.  We find that the dismissal was unfair on the ground that the respondent failed to “act reasonably” within the meaning of section 97 in that he failed to consult with the applicant so as to make the redundancy situation clear to him including the possibility of alternative work.”
In terms of the decision of itself, the Respondents were required to pay the applicant £3,780.00 redundancy pay, £2,160.00 pay in lieu of notice and £150.00 compensatory award for unfair dismissal.  It must be the case, (though we have not actually seen it) that extended reasons were requested and they were given on 3 December 1997.  That award of particular sums of money was, of course, confirmed and it was announced that the dismissal was unfair on procedural grounds only.  So far as concerns the date of dismissal, there is a passage under the heading ‘Contentions’ in paragraphs 8-11 as follows: -
8. “First, Mr Stanley submitted that Mr Toms resigned, in that he went on holiday and never came back.
9. “This is rejected.  Had he resigned Mr Stanley would not have written on 31 July “I have had to lay you off until I get more work”.  We find that Mr Toms was dismissed.
10. “The second question is when Mr Toms was dismissed.  The letter of 31 July states that Mr Toms was not employed from April 1997, and refers to the possibility of “re-employment”.  We are satisfied on the basis of that wording that he employment ended at the beginning of April 1997.  The evidence of both sides were inconsistent and confused and, in Mr Toms case, dates kept changing, but what was clear was that his last day of work was 4 April.  We, therefore, find that he was dismissed on that date.
11. “The third question is why Mr Toms was dismissed.  The letter of 31 July referred to the “difficult financial situation” and stated “I have had to lay you off until I get more work which I am trying to do.”

4.	On 15 January 1998, Mr Stanley lodged his Notice of Appeal and for the first time this point of real significance, was taken as follows:-
“The Tribunal having found that the applicant was dismissed without notice on 4 April 1997, erred in law by proceeding to give any award to the applicant and failed to have regard to the fact that the applicant was out of time with his application which was dated 5 August 1997, namely more than 3 months after the date upon which the Tribunal found that he had been dismissed.”
Dismissal 4 April 1997; IT1 6 August 1997.  One has to bear in mind that sections 111 (2) of the Employment Rights Act 1996: - 
“Subject to sub section 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 3 months beginning with the effective date of termination, or
b) Within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of 3 months.”

5.	On 3 June 1998 Mr Stanley’s appeal came before the EAT as a preliminary hearing and then Mr Stanley then had the assistance of Counsel under the ELAAS Scheme.  The EAT was troubled by the 3 months point as there was no sign that it had been taken below and it was not mentioned in any way in the Tribunal’s reasons.  At that hearing the Justice Kirkwood with two members said this:- 
“It is suggested that with both Mr Toms and Mr Stanley in person the question of time limit was simply overlooked by the Industrial Tribunal.  We are hesitant to accept that an experienced Industrial Tribunal has necessarily overlooked so fundamental a point.
“We are aware that there was some confusion in the evidence before the Tribunal as to just had transpired between Mr Toms and Mr Stanley.  But we are also very much conscious that, in respect of both pay in lieu of notice award and the compensatory award, the Tribunal has, and had, a discretion to extend the time for making an application, in particular circumstances.  It may be that the Industrial Tribunal had that discretion in mind and merely failed to advert to it in its Extended Reasons, we simply do not know.”
And so the EAT at that preliminary hearing adjourned the matter, so that the Registrar could write to the Chairman to find out what had been done and said at the hearing.  On 10 July 1998 the answer came back from Cardiff as follows: -
“The point was not dealt with by the parties because it did not arise until after the Tribunal found that the date of termination was 4 April 1997.  It was then not raised with the parties because both sides had been so confused throughout the hearing (see paragraph 10 of the decision) that the Tribunal considered any fresh point would have increased their confusion and that further discussion would have proved fruitless.  The Tribunal was satisfied on the evidence that it was not “reasonably practicable” for the applicant to present his claim in time, i.e. by 3 July 1997 because the confusion of both sides was such that he was not sure when he had been dismissed but thought that it was in June.  Time was therefore extended.”

6.	The point was inadvertently omitted from the typed version of the reasons.  Copies of some hand written notes were sent with that letter as follows: - 
“In response to the Employment Appeal Tribunal’s direction that the Chairman provides notes or records of the Tribunal’s consideration of the jurisdiction point, I enclose a copy of parts of the notes she made during the discussion with members.  She has asked me to reply [and so on].”  

In further correspondence, it was made quite clear that the notes were not notes of evidence but simply notes of discussion between the members of the tribunal.  That became quite apparent from a letter of 28 July 1998 where it says: -
“For the reasons given in the letter of 10 July (namely that both parties on their originating application and notice of appearance indicated that the application was in time), the question of jurisdiction was not dealt with in the evidence.  It did not arise until after the tribunal had found that the termination date was April, not June as believed by both parties.  The question was then considered by the tribunal but was not subsequently raised with the parties for the reasons explained in the letter of 10 July.”

7.	On 8 March 1999 the EAT directed Mr Stanley’s Notice of Appeal to go to a full hearing.  Still a degree of confusion or inconsistency reigned in the matter because Mr Toms’ Respondents’ answer of 6 April as part of the form that says:-
“The Respondent cross appeals from [here give particulars of the decision appealed from]”
has a complete blank but in the area, “The Respondent’s grounds of appeal are” there are some grounds filled in disputing that the dismissal was on 4 April 1997.  To that extent, we think we have to treat the matter as if there is a proper cross appeal.  Mr Toms was asserting that he had worked for Mr Stanley after April 1997, or at any rate had been an employee of Mr Stanley, as to far as there is a distinction between the two, after April 1997.  On 9 August Mr Stanley lodged an appellant’s reply to cross appeal where he says: -
“The date of dismissal is the date the tribunal found him to have been dismissed.  He applied more than 3 months later.  The matters mentioned in the cross appeal were previously denied by Mr Toms.  I deny I dismissed him, as alleged or at all.”

8.	That reference to the matters mentioned in the cross appeal is a reference to some new material which it seems was not in front of the tribunal and which we have on pages 4-5 of our present bundle.  It seems to be a letter of 4 April 1999 from a Mrs Sweeting addressed “To whom it may concern” that seems to suggest that Mr Toms did work for Mr Stanley after April and also a certificate of Pay, Income Tax and National Insurance contributions.  Again, it seems, may need not in front of the tribunal at the time.  

9.	As I have mentioned, we proceed on the footing there is a cross appeal raising the issue whether the dismissal was on 4 April 1997.  But, dealing first with the appeal raised by Mr Linden, it is quite plain that Mr Stanley and Mr Toms did not themselves address the question of the 3-month time bar at the hearing before the Employment Tribunal.  It is also clear that the tribunal in private deliberations did take the view that there had been a dismissal, that it had been in April 1997 and it was only when they came to that conclusion in their private deliberations that the 3 month time bar became a point of any materiality.

10.	Well, unhappily, it is also clear that the tribunal did not then refer to the parties to find what they wished to say on the point, if anything.  The tribunal’s conclusion, that it had not been practicable for Mr Toms to present his IT1 within the 3 month period down to 3rd July 1997 because of confusion as to the date of dismissal was not a conclusion that it had either supported or opposed by any argument heard by the Employment Tribunal directed to the point, and, so far as we can tell, no evidence was given specifically to address that point, although, of course, it might be that evidence principally directed to other points might have had some knock-on effect on the issue.  As to the time bar point, we do not hold that the Tribunal’s oversights and its not asking the parties to address the time bar and its not mentioning the matter in the extended reasons, renders the decision to extend time a complete nullity.  Mr Linden doesn’t argue otherwise.  

11.	The Tribunal plainly considered the time bar and meant to extend time, but, however excusable it might have been in the particular circumstances, with rather confusing evidence and argument from lay persons, it must be an error of law to decide so crucial a point of jurisdiction without the parties themselves having raised it and without the Tribunal inviting them to deal with it, either as to argument, or as to evidence, or both.  We must in our judgment set aside the Tribunal’s conclusions as to an extension of time, treating it as if it does appear in the extended reasons even though it does not.  We treat the matters in this way because later correspondence shows that it was only an oversight that led to it not being recorded in the extended reasons.  We do not mean to say anything as to the merits of the extension of time; we are just concerned with the procedural demerits of the way in which the question was treated.  We shall, so far as concerns the appeal, remit to the same tribunal the question of whether the period in section 111 (2) (a) was exceeded, (as would seem inevitably to follow from the Tribunal’s findings so far) and, if so, whether time should be extended, pursuant to section 111 (2) (b), and if so extended to what date.  

12.	Turning to the cross appeal, Mr Toms’ case is not of course that he was not dismissed, but that he was not dismissed as at April 4 1997.  He does not really identify any error of law in the Tribunal’s conclusions.  His Respondent’s answer consists chiefly of assertions of fact, mainly based on matters, which were not put in evidence before the Tribunal.  If the Ladd v Marshall test were the only relevant consideration we would have to conclude that the evidence could have been led at the tribunal, had only due diligence been applied to its collection and, that being the case, that he should not be permitted to produce evidence on the subject afresh.  But there is here the strange and unusual feature that neither side saw it to be an issue that the date of the dismissal was earlier than June 1997.  They were in issue about whether there had been a dismissal but, as we have shown from our citation from the IT1 and the IT3, the parties seemed to be of the view that, if there had been a dismissal, then it had been in June 1997.  

13.	To that extent had the Tribunal warned the parties that they, the Tribunal, were moving towards a conclusion that the dismissal, although not in issue, as to its date, was truly in April 1997, the parties might have wished to adduce new and different evidence.  In particular, Mr Toms might have wished to say, looking at Mrs Sweetings’ letter, that he had worked for Mr Stanley after April 1997.  He might have difficulties in that there is a passage in his IT1 which seems to say to the contrary, but, at all events, he would have been able to adduce new evidence had it only been drawn to his attention that there was an issue on the subject of the date.  It seems to us, therefore, that merely to apply the Ladd v Marshall test in all its rigours would be quite unjust.  Accordingly, we shall not dismiss the cross appeal but remit a further question to the Employment Tribunal.  We shall set aside the conclusion that the dismissal was 4 April 1997 and remit to the tribunal a number of questions :- 
1)	Whether there was a dismissal?
2)	If there was a dismissal, what was its date?
3)	Having regard to the findings as to the date of the dismissal, was the IT1 lodged in time so far as it was on subjects falling under section 111.
4)	And, if it was out of time, ought time to have been extended and, if so, to what date?

14.	It has been an unfortunate case in that an oversight has led to these difficulties.  Had only the Tribunal drawn its reasoning to the attention of the parties and given them the opportunity of addressing the issues, it could be that the matter would have been dealt with conveniently there and then.  But these oversights do sometimes happen, especially when parties are addressing the Tribunal in person, and this is such a case.  But, to the relatively limited extent that we have indicated, we allow both the appeal and the cross appeal and remit to the same Tribunal as before the questions that we have indicated.