Appeal No. EAT/532/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 12 September 2001

Before
MR RECORDER UNDERHILL QC
MR K EDMONDSON JP
MISS A MACKIE OBE

MR C M HAMPTON	APPELLANT

JOHN BETTS PLUMBING & HEATING	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 
Revised

	APPEARANCES

For the Appellant	Mr John Williams
Lay Representative
Plymouth TUC 
Unemployed Workers Centre
40 Tavistock Place
Sherwell
Plymouth PL4 8AX	

MR RECORDER UNDERHILL QC

1	We believe that this appeal should proceed to a full hearing.  Part of the background is that the Tribunal’s Reasons are extremely short, and, rather surprisingly, when the Appellant asked for Extended Reasons all that he received were the original Summary Reasons differently topped and tailed.  But our particular reasons for allowing the appeal to proceed are as follows:

(1)	While it is common ground that the application for unfair dismissal was prima facie out of time, the same does not apply to the claim for unlawful deductions.  It appears that time in respect of such a claim runs from the last date on which the employer could lawfully have made the payments in question: see Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398.  There was no separate consideration by the Tribunal of what that date was on the facts of the Appellant’s case.  Mr Williams from the Plymouth TUC Unemployed Workers Centre, who has represented the Appellant today and who was present for part of the hearing before the Tribunal, tells us that the Chairman made it clear at the hearing that he regarded the only issue before the Tribunal as being the issue of the effective date of termination, which is the relevant date for the unfair dismissal claim.  That allegation will of course have to be put to the Chairman and the parties will need to see the Chairman’s Notes, but there is at least some support for it in the way in which the Reasons are expressed.  

We were concerned that even if the questions were posed in terms of the last lawful payment date, the answer would not assist the Appellant, because we note that in a letter of 5 January 2001 from Mr Carpanini of the Unemployed Workers Centre to the Employment Tribunal seeking a review he states that the contractual date of payment would have been 12 June - in which case the claim would still be out of time.  However Mr Williams tells us that that statement is not necessarily correct and we do not feel in a position to make any definitive ruling on it.  It would certainly be wrong to dismiss it on a summary basis.  

(2) 	In respect of both claims it was, in principle, open to the Appellant to argue that it was not reasonably practicable for the complaint to be presented within the primary period.  It is not entirely clear to us, and Mr Williams was not able to assist, to what extent a case on reasonable practicability was advanced before the Tribunal, or indeed whether such a claim might have been advanced, but was precluded by the Chairman’s alleged insistence that the only issue was that of effective date of termination.  But if such a claim was advanced, or was sought to be advanced, it is at least arguable that the Tribunal’s dismissal of it in a single sentence:
 “further the Applicant has not shown that it was not reasonably practicable for the application to be presented within the time allowed”

does not constitute an adequately reasoned decision on an important point.  Again, it will be necessary to have the Chairman’s comments and copies of the notes, but we are not prepared to exclude an appeal on the ground of reasonable practicability at this stage.  If the reasonable practicability point is indeed open to the Appellant, which will have to be determined (if disputed) at the full hearing of this appeal, we are certainly not prepared to say on what we know at present that the point would have been unarguable.  Situations like the present where the applicant has received, with respect to Mr Williams and his organisation, what appears to be plainly wrong advice from a lay adviser, have been a fertile source of discussion in the case law for the last thirty years. 

(3) 	We believe that it is arguable, to put it no higher, that this is a case where the Appellant, having himself, through his advisers, sought a preliminary hearing to determine a bona fide point as to jurisdiction, should not have been made liable for costs as a result of having lost on that hearing; and the Tribunal’s reasoning for an Order of this kind in any event may be argued to be inadequate.  

2	For all those reasons we would allow this appeal to proceed to a full hearing.  As we have indicated, this is a case where justice cannot be done without a copy of the Chairman’s Notes and we direct that a request be made for those notes, together with any further comment the Chairman wishes or feels able to make (a) on the suggestion that he precluded argument on issues other than the expected date of termination and (b) as to the issues which were in fact argued or sought to be argued before him.  

3	We direct that, within twenty one days after the despatch of those notes to the parties, the Appellant, if so advised, send to this Tribunal and the Respondents’ representatives a statement setting out any point which he disagrees with, or wishes to qualify or amplify, in the Chairman’s comments or the contents of the notes; and within twenty one days from the receipt of any such statement or the expiry of that time the Respondents should serve a similar statement, making it clear so far as necessary, if they have any points of disagreement with any statement served by the Appellant.  By that mechanism we hope that it will be clear by the time the matter comes before a full Tribunal, what points of difference there are, if any, as to what occurred in the Employment Tribunal.  We plainly hope there are none, but experience teaches that that is not always the case.  

4	The grounds of appeal, as at present formulated, do not entirely correspond with what we believe to be the arguable issues here.  Looking at them briefly:  Ground A), that “there was no evidence to support the conclusion that the Appellant’s final wages fell to be paid on 5 June 2000 ”is, with respect, somewhat oddly worded, since the Tribunal’s Decision contains no such conclusion.  It may be, we do not know, that something was said by the Chairman orally to that effect, perhaps based on the reference to 6 June in Box 9 of the IT1.  In any event, the real issue here, as it seems to us, is whether any proper consideration was given to the different question of when the time starts to run under Section 23(2) of the 1996 Act, and as to what the answer would have been if the correct question had been asked.  

Ground B clearly raises an arguable issue.

Ground C does not seem to us to go to the heart of the point of reasonable practicability, though it may well be an issue that arises if the merits of that point have to be determined.

Ground D, we accept, raises an arguable point.  

It may be that, in the light of the observations we have made, the Appellant would wish to revise the grounds of appeal.  We give leave to amend them within twenty one days after the expiry of the timetable which we have given in regard to Chairman’s Notes and comments thereon;  it seems sensible that if the grounds of appeal are to be amended that should be done with knowledge of the full material that will be before the Employment Tribunal.  We would recommend that, ably as Mr Williams has acquitted himself, he seek qualified legal representation at the hearing for the Appellant.  

Category C, time estimate three hours.  

Now Mr Williams, one or two points were raised there which we did not give you the opportunity to comment on, but I hope they are straightforward and in no way adverse to your client and hope there is nothing you need to add, but you have the chance if you do.

No, there is nothing I need to add, and I am grateful for the advice on  the grounds of appeal, grateful regarding the issuing of the Chairman’s Notes and very grateful for the way the Tribunal has been conducted and the help that has been given to myself.  

Well, it does not mean we are going to win at the end of the day, but it means you will get a proper hearing.