Appeal No. EAT/1423/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 2002

Before
THE HONOURABLE MR JUSTICE WALL
MRS A GALLICO
MS P TATLOW

MR P ODUNLAMI	APPELLANT

ARCADE CAR PARKS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised
_____________________________________________________________________________

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondents	No appearance or
representation by or 
on behalf of the Respondents

THE HONOURABLE MR JUSTICE WALL

1	This is an appeal by Mr Pearse Odunlami against the Decision of the Employment Tribunal held at London Central on 20 November 2000.  The unanimous Decision of the Tribunal was that it did not have jurisdiction to consider Mr Odunlami’s complaints of unfair dismissal and breach of contract, and accordingly, they were dismissed.  

2	Although at first blush this is a simple and straightforward case, a more detailed examination of the facts renders aspects of it highly unusual, and indeed, we are going to take a highly unusual course.  Arcade Carparks, the Respondents to this appeal, do not appear today. Their solicitors, Messrs Reeves & Co, wrote on 17 October to the Employment Appeal Tribunal, explaining that they were not going to attend, and attaching a Skeleton Argument previously filed on their behalf, drafted by Mr Baylis of Counsel, and dated 26 September 2002.  We received a message this morning that Mr Baylis was instructed to attend, but despite enquiries, he has not been located and has not appeared.  We have therefore full argument on paper from the Respondents, via Reeves & Company and Mr Baylis’ skeleton argument, but we have not had the benefit of oral argument on their behalf.  Mr Odunlami appears in person.  He has put forward a very full set of papers, and we are grateful to him for the care with which he has presented his case.  

3	The critical issue in the case is whether or not the form IT1, dated 23 September 2000 and filed and 26 September 2000, is out of time. To understand that issue fully, however, we need to look at the background.  Mr Odunlami, whom we henceforth will call “the Appellant”, worked for the Respondents, who are in the business of operating car parks and car park security.  It is, we think, worthwhile pointing out that the Appellant began working for this organisation, albeit then using a different name (that is the organisation) on 2 August 1994, so that at the time of these events, he had almost six years of unblemished work performance.  

4	What he says happened is that because there were, from time to time, shortages of staff because staff did not turn up or report for work, he had to fill in for a number of different duties, duties he says for which he was not trained. His case is that on 22 May 2000, the cashier phoned in saying that he or she was sick, and he was invited by a manager of the Respondents, to cover the cashier’s duties.  This duty, amongst others, involved assessing the length of time customers had stayed in the car park, and calculating how much they had to pay. Sometimes, it seemed, people in the car park stayed only a few minutes beyond their allotted time, and it is the Appellant’s case that in those circumstances, either the cashier or himself acting as cashier, had or he thought he had, a discretion to adjust the amount by which customers should be charged if they had only stayed over their time by a few minutes.  The Appellant understood that he had to enter up these transactions, but what appears to have happened is that a manager looking subsequently at the documentation, noticed that a deduction had been made, and asked why the Appellant has not sought authorisation for making it.  The Appellant explained and apologised, saying he was ignorant of the rules and apologised for what had happened, but apparently the manager was not satisfied, and the Appellant was suspended.  There is in the documentation in our papers, a note signed by the Respondents’ Operations Manager, Mr Peache, on 25 May 2000,  which reads:
“as a result of our meeting and investigation on 25 May at Trafalgar Car Park, you are suspended from duty and are asked to come back tomorrow at 12.00 for a full disciplinary hearing, at which you may be accompanied.”

5	We pause to note that the disciplinary meeting was the following day. Since this was the process which led to the Appellant’s dismissal, there is a powerful case for arguing that it was procedurally unfair to expect the Appellant to attend the next day, without the necessary documentation, and at such very short notice.  

6	In any event, the Appellant did do so, and on 26 May, after the meeting had taken place, he waited. In due course he received a letter, dated 6 June, written by Mr Peache, the same person who had summoned him and suspended him, in the following terms:
“I am writing to confirm the decision taken at the disciplinary hearing on 26th May 2000, that you be summarily dismissed without notice or payment in lieu of notice, in accordance with the company’s disciplinary procedure.  Your last day of service was 26th May 2000.
The reason for your dismissal was:
o	You processed three transactions where the money had been reduced, without filling out the necessary paperwork or gaining authorisation.  You were also unable to give a satisfactory explanation for this.
You have the right to appeal against this decision and should you wish to do so it must be Mr P Keeper - Director (in writing) within 4 days of receiving this notice of dismissal.
Yours sincerely
M Peache
Operations Manager”
The letter says “4 days” - in fact, the company’s procedures, some of which have been produced by the Respondents, indicate that there are five working days from the dismissal in which to exercise the right of appeal. The Appellant also makes the point that it was the same person who suspended him as subsequently investigated and purported to dismiss him.  

7	In any event the appeal process resulted in a letter from Mr Keeper dated 4 July which reads:
“On hearing your appeal and after reflecting on all the relevant facts, I write to inform you that the decision taken at the disciplinary hearing to dismiss you is upheld.
I found your explanation unsatisfactory; it was inconsistent and contradictory.  At the beginning of the appeal you stated that you did not know you had to write the customer’s name and vehicle registration on the back of the car park ticket you were reducing payment on.  You then changed your explanation saying that you had made a mistake in each case, that you were tired and forgot to do it.
Having worked for Arcade for six years you should be well aware of the importance of following company procedures.  Arcade Car Parks has an excellent reputation for financial probity.  Your actions in failing to follow basic procedures have caused this to be questioned by our major client.”
My decision to dismiss you is final.
The date of that letter is of considerable importance, because if  4 July 2000 or the date of which the Appellant  is the date on which the Appellant was actually dismissed, as he submits it is, then plainly the Notice in form IT1, issued towards the end of September is in time.  If, however, he was dismissed either on 26 May or on 9 June, when he received the previous letter, he is out of time. The Appellant accepts that  he did seek advice in July, and therefore, the not reasonably practicable defence which would be open to him otherwise, does not appear to be so.

8	The Appellant also relies on the fact that on 26 June there is a payslip bearing that date, which he says demonstrates that he was not dismissed before 4 July. As we indicated earlier, he took advice in July as to the course of action he should adopt.  He lodged the IT1, as I have already said, on 26 September, and the hearing before the Tribunal was on 20 November. At that hearing,  the Respondents were not represented, although a letter was sent from their solicitors.   

9	The Tribunal, on the material available to it, took what we hope we can say without in any sense wishing to appear patronising, was a straightforward view.  It did not consider, as indeed was perfectly correct,  the events leading up to the “dismissal”, but it did consider the chronology. It took the view that the dismissal had taken place on 9 June when the Appellant received the letter of 6 June.  Accordingly, the IT1 should have been filed on or before 8 September. It  was not. The not reasonably practicable defence was not available, and therefore the Appellant was out of time.  

10	It would appear that the Tribunal did not have before it a number of significant documents. That fact emerges from what happened subsequently.  The Appellant sought to appeal the  Tribunal’s decision. He wrote to the EAT on 3 January 2001. Of course, the time for entering an appeal expired on 17 January 2001 and when the Appellant filed a formal Notice of Appeal on the 29 January, he was correctly told by the Registrar that it was out of time.  The Registrar initially refused to extend time, but that decision was reversed by the President, and the Respondents then put in an answer.  

11	The preliminary hearing of this appeal took place on 17 June 2001, and in a constitution presided over by Mr Justice Lindsay P the Appellant was, in effect, allowed to proceed on three points.  First of all, did Mr Peache have authority to dismiss the Appellant?  According to the Respondents’ Disciplinary Procedure, disciplinary action comprising dismissal was the prerogative of a “Director/Managing Director”.  We make further reference to this document below.  It appears that at the Tribunal stage, the actual letter of dismissal was not available and the Tribunal did not know whether the Appellant was dismissed by or on the authority of a Director of the company. So the question of whether Mr Peache  had the power or authority to dismiss the Appellant  was very much in issue and needed to be resolved.  The EAT  pointed to the fact that Mr Peache described himself as “Operations Manager”, and did not indicate that he was a Director of the company.  The EAT therefore took the view that there was at least a arguable possibility that Mr Peache did not have authority to dismiss the Appellant.  

12	This matter is of some considerable importance because on the documentation produced by the Appellant, and not it must be stressed by the Respondents, it appears very clearly from the Respondents’ Disciplinary Procedure document, to which we referred in paragraph 11, that certain disciplinary actions were only capable of being taken by certain people within the Respondents organisation.  The document reads:
“The operation of the Disciplinary Procedure contained in the previous section is based on the following authority at the various levels of disciplinary action.”

Different disciplinary sanctions are then identified.  “Verbal Warning” is the province of a Manager. “Written Warning” is the province of a Director. “Final Written Warning” is the province of a Director. “Suspension Without Pay” is “Director/Managing Director”, and “Dismissal” also Director/Managing Director”.  So, on the face of it, both the suspension and the dismissal, if a dismissal purported to take place in May, were done by Mr Peache, who was not a Director, let alone the Managing Director.  So that was the first point that the EAT allowed to be argued.  

13	The second point was the question of the payslip.  The Tribunal had found that the Appellant had not received any pay after 26 May. However,  the Appellant produced a payslip indicating that a payment had been made to him on 26 June. The EAT accordingly allowed that point to be argued. 

14	The third point which the EAT said was arguable was the question of whether or not the appeal was a re-hearing and whether, therefore, at the end of the appeal and the process which ended with the letter of 4 July, there had been a decision to dismiss only on that date, in which case, as we have already indicated, the IT1 was not out of time.  

15	Before turning to the first point, we wish to make some comments about the Respondents’ conduct of these proceedings. When the Appellant filed his Notice of Appeal, and the documents were sent by the EAT to Reeves & Company,  the EAT received this response:

“We have today [that is 20 April 2001] received your correspondence forwarded to the above address which was recently vacated due to a serious flood.  We have not received any correspondence, but we do not act for Arcade Car Parks and have no instructions.  We suggest you re-serve the papers on them direct.”

The response to this letter from the Registrar asked for clarification since, in the Employment Tribunal’s Extended Reasons appeared the following words:
“3  The Respondents did not attend but a letter had been received from Reeves & Co, the Respondents’ solicitors, submitting that the Tribunal did not have jurisdiction to consider the matter because the Applicant was dismissed on 26 May and the Originating Application was presented on 26 September, outside the three months’ deadline.”

16	We assume, for present purposes, that Reeves & Co have put themselves back on the record and currently act for the Respondents. However,  even more surprising, we think, is that on what appears to be two separate occasions, namely 11 September and 17 October, when Reeves & Co forwarded documents to the Tribunal upon which they were relying, they referred in each case to a copy of the disciplinary process and procedure notes and in each case, the documents produced are: (1) “Disciplinary Process and Procedure” and (2) “Disciplinary Appeal Procedure”.  Those documents are numbered in the internal pagination of the company document as 13 and 17 and both are dated October 1995.  But what matters, and what we find very disturbing, is that nowhere did the Respondents produce the document which is headed “Disciplinary Authority” and which makes it clear that dismissal was the province of the Managing Director, or a Director, and solely the province of a Managing Director or Director. This document, as produced by the Appellant has an identical format to the other documents and an internal pagination of 16. It was, however, omitted by the Respondents from the documentation to be placed before us. 

17	We also find it most unhelpful that in Counsel’s Skeleton Argument, on this particular point, the only argument advanced is:
“As the Chairman’s notes confirmed, the issue of authority to dismiss was never put challenged at the Tribunal, but in any event, Mr Peache did have authority to dismiss.”

No authority is given for the proposition that Mr Peache did have authority to dismiss, and no documents are relied upon to in relation to it.  Similarly, in the letter which Reeves & Co. wrote to the Tribunal on 17 October 2002, explaining that they were not going to be present today, the same point is made:
“The EAT will note, [they say] at page 35 of the Tribunal’s bundle, that the Chairman at the time (Mr Carstairs) has confirmed neither [the Appellant] nor his representative raised the issue of the authority the dismissing officer.  Indeed this matter was not raised at any stage at the original Tribunal hearing, including the pleadings contained in the IT1.
Thus, as a matter of law, we submit this point cannot be taken now on appeal.
Alternatively, we submit that in any event the point is disingenuous.  Mr Odunlami was dismissed by Mr Peache, who was the Operations Manager, ……..but his appeal was heard by Mr Keeper, the Managing Director of Arcade Car Parks…..
This was perfectly in accordance with the disciplinary process and procedure at Arcade Car Park’s place of work (see pages 11 and 12 attached hereto).
Further, if the EAT look at the correspondence of Mr Keeper and Mr Peache, it is clear that if there is any doubt about Mr Peache’s authority to dismiss [the Appellant,] this was clearly ratified by Mr Keeper on appeal.”

18	We repeat: the reference to the documentation is to the two documents headed “Disciplinary Process & Procedure” and “Disciplinary Appeal Procedure” and does not refer to the crucial document “Disciplinary Authority”.  

19	Now it is, of course, the case, and was confirmed by the Tribunal Chairman when he was written to on this particular point, that this point was not raised below, and the crucial document “Disciplinary Authority” itself was not produced below. In the circumstances, however,  in our judgment it hardly lies in the mouth of the Respondents to take that point, when it would appear that they themselves were responsible for the absence of the document before the Tribunal in the first place.  In those circumstances, we think it is important that we look very carefully at the question of the dismissal, to see whether in this case, the unusual course of allowing a point to succeed which was not taken below, should in fact be taken.  

20	We have come to the conclusion that there are effectively two ways of looking at the dismissal in this case.  The first, if one takes a strictly legalistic approach, might well be to say that Mr Peache had ostensible authority - or at least the Appellant believed Mr. Peache had ostensible authority - to dismiss  the Appellant, whether he had actual authority or not; that therefore the date of dismissal was indeed 26 May, and that any irregularity in that process was cured by the appeal, which confirmed the dismissal and which was therefore retrospective to the date on which Mr Peache dismissed the Appellant.  That, as we say, is a strictly legalistic view, and one which, again, if one takes a strictly legalistic view of the timescale, would mean that the Appellant was out of time.  

21	The alternative way of looking at the case is that the process whereby Mr Peache suspended the Appellant; then summoned him to a disciplinary hearing and dismissed him, whether or not it turns out to be procedurally unfair, was one which was completely outside the powers of Mr Peache in his capacity of Manager; indeed, that it was an abuse of power by Mr Peache in his capacity as Manager; that it was therefore of no effect, and that the only person who did have the power to dismiss the Appellant was the Managing Director or Director. Mr. Peter Keeper, who was in fact the Respondents’ Managing Director, did, in fact dismiss the Appellant, and the dismissal, whether it was fair or not, took place on receipt by the Appellant of the letter dated 4 July 2000.  It is of note, we think, in this context that Mr Keeper’s letter of 4 July 2000 ends: “My decision (our emphasis) to dismiss you is final”.    

22	We have, we think, to decide which course of action best does justice.  We remember that this point goes to jurisdiction.  It may be that, on the merits, when it comes to be heard, the Appellant does not have a sound case. We do not know; that is not the issue. We are, however,  absolutely clear that the proper course here is that this case should be heard on its merits, and that it is therefore legitimate, when we look at the two options that are open to us (because they are both open to us, we think, in  law) to choose the one that is likely to do justice. We propose, therefore, to allow the case to be heard on its merits.  In our judgment, the Appellant succeeds on the first point identified by Mr Justice Lindsay P.
23	It is not, accordingly, necessary for us  to express any opinion on the other two points on which this appeal was permitted to proceed. 	We should perhaps, however, add that in allowing this appeal, we do not, in taking this course, make any criticism of the Employment Tribunal below.  We have much more information and much more documentation. We have also, however, not been assisted by the Respondents’ solicitors, in the way they have presented the documentation; indeed, we take a view that an explanation is required as to how it comes about that on two separate occasions, the relevant document was not produced, to say nothing of the occasion when, on receipt of the appeal documents, the solicitors say they have no instruction.  

24	The latter, of course, may be strictly accurate, but looking at the matter in the round, as we do, we think the proper course here is to take the highly unusual course, on a jurisdiction point, of reversing the Tribunal notwithstanding that the point in question was not argued below. The appeal will be allowed; the Decision and the Order made by the Tribunal, for want of jurisdiction, will be set aside, and the matter will be listed to proceed on its merits before a differently constituted Tribunal.