Appeal No.	 EAT/819/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 November 2000

Before
SIR CHRISTOPHER BELLAMY QC
MR T C THOMAS CBE
MR G H WRIGHT MBE

MR J WEBSTER	APPELLANT

PRUDENTIAL ASSURANCE COMPANY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS J SWANN
(of Counsel)
Appearing under the
Employment Law
Appeal Advice Scheme	

SIR CHRISTOPHER BELLAMY QC

1	This is an appeal which comes before us by way of an ex parte preliminary hearing.  The appeal is from the decision of the Employment Tribunal sitting at Manchester, the extended reasons for which were sent to the parties on 14 June 2000.  

2	Those proceedings concern a complaint brought by Mr Webster, the Appellant before us, against his former employers, the Prudential Assurance Company Ltd, by an Originating Application filed on 10 September 1999, whereby the Applicant applied to the Tribunal for a finding of breach of contract by the Respondent, arising by virtue of an alleged non-payment of a share award cash equivalent - referred to by the Tribunal as the “share award” - which was outstanding on the termination of the Applicant’s contract of employment which terminated on 5 March 1999.  

3	The background apparently is that Mr Webster had brought previous proceedings against his employers under Case 2403277/99 in connection with various matters arising out of the termination of his employment.  Those previous proceedings were apparently settled on 8 September 1999, but a difficulty arose about one issue, that of the share award to which we have just referred.  The Appellant alleged that he was entitled to the share award in question and that that had not been dealt with in the settlement that was being arrived at in those proceedings.  It appears that the Chairman of that Tribunal said to the Appellant that in his, the Chairman’s, view the award did not form a part of those proceedings and he apparently added words to the effect that that issue should be pursued in a new case.  We do not know exactly what the Chairman said, but that is apparently the gist.  That led to the Applicant virtually immediately filing a new application, which is the one which forms the subject of this appeal, which, as I have said, is dated 10 September 1999, claiming, in effect, a breach of contract in relation to the share award.  Unfortunately, at that stage the Applicant, on this new application, was then met with the argument that such an appeal was out of time, and the Tribunal, in the decision appealed against of 14 June 2000, found in favour of the Respondents the Prudential on that issue.  

4	The only question we have to deal with today, and indeed the only question we can deal with, is whether in reaching that decision the Tribunal made an error of law.  We have no jurisdiction to go into the conduct of the previous proceedings by the Chairman of the Tribunal in those proceedings: we are obliged to concentrate on the decision of 10 June and to decide whether that decision contains an error of law.  

5	Now the provisions regarding time for bringing an application of this kind are set out in Regulation 7 of the Employment Tribunals (Extension of Jurisdiction) England and Wales Order 1994.  That regulation provides that an Employment Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented: (a) within the period of 3 months beginning with the effective date of termination of the contract giving rise to the claim; and then I can miss out (b) and go on to (c), or where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, or within further such period, as the Tribunal considers reasonable. 

6	Now in this case the complaint was plainly not presented within three months beginning with the effective date of termination of the contract of employment, and the question therefore for the Tribunal was whether it was satisfied that it was not reasonably practicable for the complaint to be presented within that three month period, or within such further period as the Tribunal considered reasonable.  

7	In argument before us, Ms Swann, on behalf of the Appellant, has advanced, in effect, two submissions.  The first submission is that the Tribunal should, in effect, have considered that they were continuing to hear and determine a matter that had already been raised in the previous case.  She says that it is apparent that the issue of share awards was raised in the previous case, and she refers us to page 29 of the bundle, which is an annex to the documents presenting the Appellant’s case that was before the previous Tribunal, where it is said:-
“I still don’t know how I am affected by pay and share awards for 1998 and up to 5.3.99”
- 5.3.99 being the date of termination.  She concedes that this issue of share awards is not expressly mentioned in the IT1 that commenced those first proceedings, which is at pages 23 and 24 of the bundle, but says that nonetheless it was plainly within the four corners of that previous case, and that the Tribunal was wrong at paragraph 9 to effectively conclude that the issue of the share award had not been before the Tribunal in the previous proceedings.  

8	We have difficulty with that argument because these proceedings were started by a new application dated 10 September 1999 and the Tribunal here, the second Tribunal, was concerned entirely with whether those new proceedings were in time.  It was therefore, in our judgment, impossible for that new Tribunal to consider that they were simply, in some way, carrying on hearing the case that the old Tribunal had disposed of on 8 September 1999.  

9	The second argument that is put before us is, in our view, more substantial. Referring to the statutory test, which was whether it was not reasonably practicable for the complaint to be presented within the relevant time, Ms Swann submits that in this case, the Applicant was not in a position to present his claim any earlier, at least in any meaningful way, because he lacked the information necessary to do so.  That information was in the hands of the Respondent Company, the Prudential, and the Applicant had, it is submitted, asked for the matter to be dealt with as long ago as his letter of 11 January 1999.  However it was not dealt with, and it was only on the day of the hearing in the second case, that is to say the 22 January 2000, almost a year later that, according to the Applicant, he was finally provided with the information that he needed in order to formulate his claim.  In those circumstances, it was not reasonably practicable, so it had submitted, for him to formulate his claim any earlier.  

10	On that issue, there is a considerable amount of case law and one of the well known tests is summarised by the Tribunal itself in paragraph 13 of its decision of 14 June, where the Tribunal sets out the dictum of Lord Justice Brandon in the Walls Meat Company case 1979 ICR 52.  The learned Lord Justice in that case says that:-

“the performance of this act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents or interferes with or inhibits such performance.  That impediment may be physical, for instance the illness of the complainant or a postal strike: or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance or of mistaken belief with regard to the essential matters.  Such states of mind can however only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.  Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made ….”

11	In our judgment, in the facts of this case as I have just set them out, it is arguable in this case, that it was not reasonably practicable for Mr Webster to bring these proceedings within the period of three months, because he lacked the information to do so, and because there are indications that he had requested the information, but that it had not been supplied.  It is also Mr Webster’s understanding that liability in this case is unlikely to be in issue, and that the only question is quantum.  He was not in a position, however, to present any detailed case on quantum because he did not have the information.  

12	It is on that basis that we are prepared to allow this appeal to go forward to a full hearing, the point of law being whether the Tribunal erred in law in failing to address the question of whether it was not reasonably practicable for Mr Webster to bring his complaint any earlier because he lacked the information to do so.  

13	That being so, we should give directions for the future conduct of this case: it is in our view, a category C case, I do not know whether you have a time estimate Ms Swann, not more than two hours I would have thought.  Having given those directions, we would like to add two observations:  one is that it may be that the difficulties that have arisen have been, at least partly, contributed to by the difficulties in following exactly what claims are being made in the papers, but the second, and I think more important observation, is that this seems to us to be a case which very much lends itself to some kind of amicable settlement, and we do hope - we address this remark to both parties - that it may be possible to resolve the matter without it needing to go to full appeal.