Payer v British Telecommunications Plc [1992] UKEAT 239_92_0806

EAT

Payer v British Telecommunications Plc

[1992] UKEAT 239_92_0806 · 1992-06-08

MR JUSTICE KNOX: This is an appeal by Mr Payer but since one of the matters in issue is exactly what it is the appeal is from it will be convenient to set out what has happened before returning to the Notice of Appeal and identifying the substantive subject of the appeal to this Tribunal.

Mr Payer was employed for a long time by British Telecommunications plc, (I will call it for shortness "British Telecom") and putting the matter neutrally he ceased working there at the end of March 1991.

He issued an Originating Application which was dated the 27th June 1991. There is an issue between the parties as to the date upon which that was presented, the two possible dates being the 27th or 28th. I shall return to that later. If it is the 28th it is contended by British Telecom that it was out of time, if it was the 27th it is, I think, accepted that it would have been in time.

That Originating Application under the paragraph that asks what type of complaint(s) the Applicant wishes the Tribunal to decide has "unfair dismissal". Under the rubric which asks for "full details of your complaint" Mr Payer included the following, so far as relevant:

"(a) Constructively dismissed (a) generally (b) specifically (c) Official Secrets Act [then there is a word that is not easy to decipher]"

There are three other paragraphs but they do not do anything to explain how exactly the claim to constructive dismissal arose.

The Notice of Appearance was dated the 24th September 1991 and it too has its difficulties in that in box 3 under the question "Was the applicant dismissed?" the box "Yes" is ticked, and under that the reason given is redundancy, whereas the attached sheet to which reference is made in the box that asks for "sufficient details to show the grounds on which you intend to resist the application" stated inter alia that British Telecom denied that Mr Payer was constructively dismissed, as there was a consensual termination of his employment with British Telecom. There is attached a letter dated 28th February 1991 and addressed to Mr Payer, the first paragraph of which reads as follows:

"Following our recent discussions you indicated that you would be willing to accept redundancy terms under The Early Release Scheme 2 Option B and Section B of the BTSSS. I can now confirm that British Telecommunications plc has agreed to release you on these terms."

and at the bottom of that under some dotted lines are two short paragraphs which say:

"I accept the terms of the Early Release Scheme 2 Option B and under Section B of the BTSSS.

I understand that my last day of service will be 28th March 1991 with payment in lieu of notice.

(Signed) F B Payer

28.2.91"

that date of course is the date of the letter.

There was inserted, Mr Payer tells us and we see no reason to doubt it, by him, in an earlier sentence in the letter containing British Telecom's offer signed by Mr Cooper on behalf of British Telecom, some words "subject to clarification" as a rider to, or comment upon the phrase, "The payment in lieu of notice period includes payment from any outstanding annual leave."

The scene was thus set with an Originating Application which was sadly lacking in detail and an answer from the Respondent which was somewhat contradictory, but certainly on the face of it, set up a consensual termination rather than a dismissal.

Mr Payer was notified by a letter in usual form, on the 23rd August 1991, that his application had been registered and he was given the serial number of it.

On the 24th September 1991 the solicitor to British Telecom wrote to Mr Payer asking for particulars. It appears that that letter did not carry to Mr Payer but British Telecom in fact referred to their having sent it and sent a copy to the Industrial Tribunal on the 9th October 1991.

On the 15th October 1991, no doubt stimulated by that letter that I have just mentioned from British Telecom, the Industrial Tribunal issued an Order stated to be pursuant to Rule 4(1)(i) of the Industrial Tribunals (Rules of Procedure) Regulations 1985, on Mr Payer which reads as follows:

"The applicant is hereby ORDERED on or before 31st October 1991 to furnish in writing to the respondent following further particulars of the originating application and to send a copy of such particulars to this Office:

SCHEDULE

Full details of the:-

a.alleged constructive dismissal.

(why you were obliged to terminate the employment)

b.complaints listed in application.

1. dates

2. who perpetrated acts

3. witnesses

and there is the usual warning that failure to comply may result in the application being dismissed before or at the hearing and a warning that the Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but can only do so for good cause and that such an application should be made before the date above specified.

Simultaneously, or closely thereafter, with that last Order there was issued a notification of an intention to list the application for hearing between certain dates and asking Mr Payer for his reaction as to his acceptance of the dates in question, within a particular period. Mr Payer replied, at the bottom of that form:

"It seems to Applicant to be premature to allocate a date in this case at this time -. . . . . not before 1st February 1992

Reasons:It has not proved possible to file full Further and Better Particulars to date as Respondent retains personal papers, personal computer and back up disks - and in any event would hope to settle or resolve matter by negotiation"

and there is also a reference to the facts that the Respondent was apparently alleging that the application was out of time, which was indeed the fact because that was one of the points that British Telecom took in their letter.

On the 30th October in a letter that did carry to the Industrial Tribunal Mr Payer gave a variety of reasons why he resisted what was said in the Order of the 15th October for him to deliver Further and Better Particulars. He specifically asked for an extension of time in paragraph 1 of this letter. In paragraph 2 he said he had no copy of the original application. That was because although he was the author of it he apparently did not keep a copy of what he had done, he just delivered or sent the top copy and that was the only knowledge that he appears to have had at that stage. He then took the point that as there was a question raised as to the application being out of time there was no point in proceeding if it was to be adjudged out of time and he then goes to deal with the question of the termination of his employment. In paragraph 5 of his letter he says:

"Although there was an `enforced' "voluntary termination" agreement - with details to be resolved - dated 28th February 1991 with a last day of service of 31st or 28th March 1991 in fact, contrary to terms, I had my office electronic mail and LAN access terminated before arrival on 28th March and was subsequently escorted from the building and physically precluded from collecting several hundred pages of `master' documentation, my personal computers and back-up disks. I understand some would argue that this is plainly humiliating summary dismissal on 28th March 1991."

He then relies on British Telecom not having complied with the "voluntary termination" agreement and asks for advice as to whether the application is agreed to be within time or alternatively agree for an interim hearing on that issue alone. He then points out that he is unable to produce Further and Better Particulars because, putting it shortly, a lot of papers and computer material was left behind by him when he left or was asked to leave British Telecom's premises. He repeats that claim that he was unable to give proper consideration to the matter because of his not having the necessary material available to him.

On the 19th November British Telecom resisted his application for further time on the grounds, which I need not read in detail, but putting it shortly their allegation to the Industrial Tribunal was that a number of opportunities and letters had been offered and sent to Mr Payer advising him of the availability of his possessions which, it is quite clear all parties are agreed, did in fact get left behind when he left at the end of March 1991. British Telecom's attitude, as reported to the Industrial Tribunal, was that they received no reply to four of the letters that they had written and the fifth was returned by the Post Office undelivered and they say that they are proposing to take a witnessed inventory of the property involved.

There is no trace in the bundle of papers before us of there having been any reply by the Industrial Tribunal to Mr Payer's letter of the 30th October 1991. It is clear that the letter carried because it is in the file. I say that it is clear the letter carried because two later letters, which were written by Mr Payer he tells us and we are content to assume that he is right, also appear not to have carried in the sense that they are not on the file. One was dated 16th December 1991 the other was dated on the 29th January 1992. It is not I think necessary for me to read them in detail because they repeat in substance what Mr Payer had said in his earlier letter of 30th October 1991 which did, as I say, carry to the Industrial Tribunal. The next event was that notice was given of a preliminary hearing on the question of whether or not the Originating Application had been issued within the time limit contained in Section 67(2) of the Employment (Protection) Consolidation Act 1978 and the date was fixed as the 3rd February 1992 that was sent to both Mr Payer and British Telecom in the usual way.

On the 10th December 1991 there was sent on behalf of the Assistant Secretary of the Tribunals, a letter to Mr Payer which reads as follows:

"As you have failed to comply with the Order for further particulars dated 15 October 1991 within the time limited for compliance, a Chairman of the Tribunals, pursuant to Rule 4(4) of the Industrial Tribunals Rules of Procedure 1985, invites you to shew cause (i.e. give reasons) in writing by 21 December 1991 why your Originating Application should not be dismissed."

That elicited, if that is the right word, the letter that I have mentioned a few moments ago of the 16th December 1991 which appears not to have carried to the Industrial Tribunal.

There were further attempts by British Telecom to arrange for the collection of his property by Mr Payer but so far as we can ascertain that still has not resolved itself in any way that is satisfactory to either party and there remains, property of Mr Payer, within the control of British Telecom.

On the 16th January 1992 a notification was sent to both Mr Payer and the Solicitor for British Telecom which reads as follows:

"As the above case `[that of course is this case of Mr Payer against British Telecom]' has now been struck out by a Chairman of Tribunals please note that you do not now need to attend the hearing on Monday 3rd February 1992."

That hearing was the one that had been fixed for the preliminary point to be determined as to whether the Originating Application was, or was not, in time. That was formalised by a letter dated 3 February 1992 which is headed "ORDER OF THE INDUSTRIAL TRIBUNAL" and reads as follows:

"the Applicant not having complied with an Order dated 5 October 1991 and a letter giving the Applicant an opportunity to show cause why the Originating Application should not be struck out having been sent to the Applicant and having elicited no response, the Order of the Tribunal is that the Originating Application herein be struck out for want of prosecution."

That has got two errors in it. One is that the Order was not dated 5th October, it was dated 15th October, but that is perhaps not a matter of any great seriousness. The second is somewhat more significant, and that is that the recital "having elicited no response" is factually incorrect because the Industrial Tribunal had received Mr Payer's longish letter of 30th October 1991 and it simply is not correct to say that no response was elicited. They had not received the letter of 16th December or it had gone astray, and nothing much more turns on that because in my view not a great deal more was contained in that letter than in the earlier one so the significant fact is that the letter of 30th October was passed over and not dealt with.

On the 17th February 1992 Mr Payer requested a review of that decision, in particular of the Chairman that the Originating Application be struck out. Mr Payer gave reasons why he should have a review of that Order. That was dealt with by a letter of the 26th February 1992, written on behalf of the Assistant Secretary of the Industrial Tribunals and that contained the following. First of all it said that Mr Payer's letter of 29th January 1992 had been eventually traced, it was stated that it had been endorsed by the wrong file number, which in fact does not seem to be accurate if the copy that we have been supplied with is indeed an accurate copy. Nothing much turns on that. The substance of the letter is this:

"The Chairman who made the Order striking out your Originating Application, Mr D J Walker, has considered both your letters, and the proper course to adopt having regard to all that you have said. However, Mr Walker has concluded that he is precluded from taking any further action in relation to your case by a judgment of the Employment Appeal Tribunal in the case of Casella London Ltd v. Banai [1990] ICR 215, in which that Tribunal held that an order which did not fall into the classification of a final order, including an order striking out an originating application, could not be the subject of recall or a review by the chairman.

In the circumstances, the Chairman directs me to inform you that, whatever the merits or demerits of your present contentions, the Order sent to the parties on 3rd February 1992 can only be varied by the Employment Appeal Tribunal."

That completes the bundle of correspondence before us and other material. There was also another letter written by Mr Payer on the 20th April 1992 containing an explanation of what it was that he wished to appeal against. That again does not, in our view, add anything of material weight to his Notice of Appeal to which I now turn.

What Mr Payer says he appeals from is the following:

"(i) The decision not to hold the preliminary hearing on 3rd February 1992 for which the appellant [Mr Payer] but not the Respondent [British Telecom] attended

(ii) The decision at his [the Chairman's] own initiative to make an order for detailed further particulars dated 15th October 1991, and to make no note or take due or apparently any account of the Respondent's [Mr Payer's] response of 30th October asking for:- . . . . ."

then he sets out the various things that Mr Payer did ask for, and I need not repeat.

"(iii) The decision notwithstanding my [Mr Payer's] note of 30th October 1991 which was unanswered but I have seen on file to issue a notice dated 10th December which `invites you to show cause (i.e. give reasons) in writing by 21 December 1991 why your Originating Application should not be dismissed.

(iv) The decision - advised by notice dated 3rd February 1992, despatched on or after 4th February 1992, notwithstanding a lengthy document lodged on 16th December 1991 further expounding matters and significant issues, requesting a hearing to ensure discovery and directions generally, and enclosing copy associated High Court writ and draft further particulars - `the Originating Application herein be struck out `for want of prosecution';"

that is obviously a reference to the Order that was, in fact sent, on 3rd February 1992 striking out.

"(v) The subsequent decision not to give full written reasons for action(s) [or entertain review or recall]."

It will be convenient to deal with certain preliminary matters. First of all the Chairman was undoubtedly right, and Mr Payer did not contend to the contrary, in saying that an industrial tribunal does not have jurisdiction under Rule 10, which is the only relevant Rule, to review interlocutory, as opposed to final orders. He correctly identified the authority for that proposition Casella London Ltd v. Banai (E.A.T.)

[1990] ICR 215

. That decision, in passing, makes clear what is the point of time at which interlocutory orders of this nature are effective. At page 220 Mr

Justice Wood said this:

"It was pointed out in Hanks v. Ace High Productions Ltd [1978] ICR 1155, that the practice of the industrial tribunals and this appeal tribunal should, in the absence of any clear direction from the Regulations, follow the practice in the High Court and the county court, where that is possible, and it seems to us, therefore, important to decide when the interlocutory order is effective. In the High Court there is a period of time between the decision and the drawing up of the order; here there is no such period between the decision and the registration, because there is no need to register. Thus, the point of time at which the order is effective is when it is given if it is given orally, or if it is sent through the post by the letter after consideration of the matter, then it dates from that date."

In our view therefore, the order to strike out was effectively made on and not before the 3rd February 1992 when that letter was sent through the post. There was no doubt that the Chairman had jurisdiction to make such an order, see Rule 12 subrule (4) of the Industrial Tribunal Rules. Secondly, there can, in our view, be no question of any appeal against the order to give Further and Better Particulars being made. The order, apart from any other reason, was wholly justified because the Originating Application was sadly lacking in particulars. Thirdly, there is no decision before us on the issue whether the Originating Application was, or was not, in time. That has not proceeded as far as decision. What Mr Payer has submitted is that this is an essential preliminary or pre-requisite to a decision on the striking out application. We are unable to accept that submission. The two points are quite free standing one from the other. One, whether or not the Originating Application was in time and two, whether there has been such a failure in giving Further and Better Particulars to warrant the striking out of the Originating Application. Four, there is undoubtedly jurisdiction under Rule 4(1) to require Further and Better Particulars and this is something which the Industrial Tribunal can do of its own motion. The Rules say so in terms. Equally there is undoubtedly jurisdiction under Rule 4(4) where such a requirement is not complied with to dismiss an Originating Application but there is a proviso to that Rule which reads:

"provided that a tribunal shall not so dismiss or strike out or give such a direction, unless it has sent notice to the party, who has not complied with the requirement, giving him an opportunity to show cause why such should not be done."

That of course was what was done by the Industrial Tribunal when the formal notice was sent on the 10th December 1991 inviting Mr Player to show cause by the 21st December why his Originating Application should not be dismissed. The procedural hoops therefore were all, in our view, gone through, but there remains the point that the Order of the 3rd February 1992 was factually incorrect in stating that no response had been elicited from Mr Payer because he had responded at least once to the knowledge of the Industrial Tribunal.

One matter that emerged during the hearing was the very doubtful state of Mr Payer's intentions and ability to prosecute a claim for unfair dismissal. At one point he was minded to accept that the only two possibilities were either that there had been a binding agreement as a result of the letter which I referred to dated the 28th February 1991, which he signed the foot of, or that he was still an employee of British Telecom on the grounds that that agreement for early retirement, or early release, had been put an end to by repudiation on behalf of British Telecom with the claimed result that his employment was thereby restored. It is not necessary for us to comment on the validity of that latter argument. By the end of the reply Mr Payer had resiled from that position that those were the two only possible alternatives. Had he not so resiled there would have been no point in our granting an appeal from the Order made on the 3rd February 1992 because he would have expressly accepted that he had no basis for claiming unfair dismissal, neither of the two alternative possibilities that I have mentioned a moment ago being compatible with such a dismissal. But, as I say, Mr Payer in the end stated that he was still not sure whether he had a case of unfair dismissal, he reiterated the point that he had not got the necessary material to deal with the matter and stated that whether it was in his best interests to pursue his unfair dismissal claim was a matter which remained unclear to him.

It is clear in our view that the point, and the only point, that arises on this appeal is whether or not the Order of 3rd February 1992 contains an error of law. Our jurisdiction is of course limited to the correction of such an error. See Section 136 of the Employment (Protection) Consolidation Act 1978. We are moved by the consideration that the Order has got a factually incorrect recital in it and by the consideration that although it would have been desirable at any rate to consider whether that should be dealt with by a review, the Chairman of the Industrial Tribunal was precluded from following that course. That is an unfortunate state of affairs and we would respectfully echo what Mr Justice Wood said at the end of Casella London Ltd v. Banai at page 221 where he said:

"Before leaving this case it is clear from a reading of all the authorities that there are likely to be cases where rather than leaving an order to be appealed, it is preferable for the tribunal to be able of its own motion to review it. This would apply equally to interlocutory or final orders. No doubt those responsible for amendments to the Regulations would be able to bear this in mind."

So far that does not appear to have borne fruit.

We have come to the conclusion that Mr Player should be given one final opportunity of stating what his case is in relation to unfair dismissal. It is essential that this case be disposed of, it cannot be left hanging in the air indefinitely while Mr Player makes up his mind, whether with or without the benefit of the material that British Telecom has made some attempts at least, and it may very well be that they are strenuous ones, to restore to his possession rather than theirs.

Matters before an industrial tribunal are intended to be dealt with with expedition and it is entirely unsatisfactory that a claim for unfair dismissal should be left hanging in the air any longer than is absolutely necessary. It seems to us plain enough that Mr Player has had many opportunities of recovering the material which British Telecom accepts it still has, and indeed is anxious, to get rid of and restore to his possession and control. Whether there is more there to be delivered up which is no longer available is not a matter with which we are concerned.

In our view we should allow this appeal simply on the basis that the Order was made on an erroneous factual footing but only on the footing that it will be remitted to the Chairman of the Industrial Tribunal to deal afresh with the question whether sufficient Further and Better Particulars of the claim in respect of unfair dismissal and constructive dismissal at that have been given. That will give Mr Player an opportunity of formulating his case if he has one. We propose to direct that he have 28 days in which to do that thereafter it will be for the Chairman of the Industrial Tribunal to fix the time when he finally decides in the light of all the letters that Mr Player has by then written, whether or not there has been such failure to comply as warrants an Order striking out the Originating Application under Rule 4(4) of the Industrial Tribunals Rules of Procedure. We therefore allow the appeal to that extent.