Hall & Tawse Western Ltd v Middleton [1993] UKEAT 181_92_1907

EAT
Hall & Tawse Western Ltd v Middleton
[1993] UKEAT 181_92_1907 · 1993-07-19
MR JUSTICE KNOX : This is an appeal by the employer Hall & Tawse Western Ltd from a decision of the Industrial Tribunal sitting in Birmingham which held on 18 December 1991, the decision being sent on 14 February 1992, that the application by Mr Middleton for a Review was refused and secondly and more relevantly for our purposes, that the Industrial Tribunal had jurisdiction to hear Mr Middleton's application that the employer had made an unlawful deduction from Mr Middleton's wages contrary to section 5(2) of the Wages Act 1986.The appeal is from that latter decision which revolves round the time for making applications under the Wages Act of 1986; the subsection is correctly identified in the Decision. It reads:
"An industrial tribunal shall not entertain a complaint under this section unless it is presented within the period of three months beginning with - (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b)... or 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 within the relevant period of three months."
The proceedings went through two stages. There was a first Originating Application which was presented either on 27th or 28th February 1991, nothing much turns on which, by Mr Middleton in respect of constructive dismissal. That was dealt with at the first of the two hearings in front of the Industrial Tribunal on 2 August 1991 by a decision sent on 3 September 1991 that there was no such unfair dismissal and the reason for that was that he had taken too long in taking steps to accept the fundamental breach of contract that the Industrial Tribunal found had in fact been committed by the employers in withholding from him a £50 weekly bonus when he moved from one site to another. The historical dates of his employment were that he had been a long term employee.He had been employed by the employers' group of companies for over 10 years as a builder's labourer and he had been employed by this particular company for a number of years. He was moved from a site called the Poolfields site to another site called the Burslem site on 12 May 1990 and that was the occasion for the cessation of receipt by him of the £50 weekly bonus. That was a matter about which he protested and went on protesting and it was in fact restored to him on his other site in the middle of August (the exact date is not very easy to discern precisely) but it was on or about 18 August 1990.There was then a proposal to move him again and eventually he wrote a letter of resignation on 25 January 1991 and produced the Originating Application for a Constructive Dismissal that I have mentioned on 28 February 1991.The second Originating Application which raised the claim under the Wages Act was presented on 24 or 25 September 1991, that is to say quite fairly shortly after the first decision and that for the first time specifically made a claim of an illegal deduction from wages under the Wages Act 1986 and it is on that Originating Application thus presented in September 1991 that the decision with which we are concerned was given. We need not of course deal with the refusal of the Review because there is no appeal from that decision.So far as the Industrial Tribunal's treatment of the jurisdiction to hear the Wages Act Application is concerned one finds in the Industrial Tribunal's Decision the history of the matter, notably that Mr Middleton was claiming that an unlawful deduction contrary to the Wages Act was made from his wages of £50 per week between 12th May and 18th August 1990. The Industrial Tribunal went on to say:
"Such facts as we have before us so far and which are agreed, show that the applicant received this £50 a week as part of his earnings from the respondent when he was employed by them until 12 May 1990 when the respondent stopped paying it. This was on the move of the applicant from his previous site Poolfields to Burslem. The applicant complained about the cessation of this payment of £50 a week and was told by his site manager, Mr Wright, that he was not entitled to it. It was said to be a bonus which was withdrawable by the respondent at any time."
and then they state the facts about its being restored, as it was.The whole of the Decision of the Industrial Tribunal regarding section 5(2) is, for practical purposes, contained in paragraph 6 of their Decision which starts by referring entirely accurately to the provisions of Section 5(2) and the second sentence analyses the effect of that subsection, again in words which have not intrinsically been criticised. They are as follows:
"In other words the Tribunal has to be satisfied that it was not reasonably practical [sic] for the applicant to claim an unlawful deduction within three months of the latest deduction made, that is to say by 15 November 1990."
We then come to the one sentence that actually contains the heart of the Industrial Tribunal's decision. It reads as follows:
"He actually claimed 13 months later on 21 September 1991, following this Tribunal's decision on his earlier application when for the first time he realised that he had a claim for what the Tribunal stated was part of his normal weekly wages."
They then add what does not in our view make any significant difference to the decision:
"If we had had to award compensation for unfair dismissal in that decision we should have taken the £50 a week into account for compensation calculations as part of his normal weekly earnings."
That seems to us to be entirely neutral because by the time he was dismissed he had got back into the stride of his £50 a week bonus and so that would have been in any event a constant.We therefore do find that the whole of the Industrial Tribunal's decision on this point is to be found in that sentence which I have read and need not repeat.The other matter which is to be noted is that on both the Originating Applications both the first one which claimed constructive dismissal and the second which claimed unlawful deduction under the Wages Act, the box that asks for the name and address of your representative if you have one was filled in, not in absolutely identical terminology but to the effect that the gentleman concerned was a Mr Bray who is described as the Regional Organiser of UCATT. So there was on the face of the Originating Application and on the hearing itself because that was the representation that occurred before the Industrial Tribunal, notice that an adviser was on the scene. We make it no more specific than that.The test that is to be applied in operating section 5(2) was agreed between Counsel to be identical to the test which is to be applied in relation to the Employment Protection (Consolidation) Act 1978 time limit in section 67(2) which mutatis nutandis is in exactly the same phrase and one can therefore and should take as a guide what the Court of Appeal has said in the context of section 67(2) of the 1978 Act as applicable to the way in which the discretion should be exercised under the Wages Act 1986, s.5(2).The leading authority again was a matter of agreement before us as being Palmer v Southend on Sea Borough Council [1984] ICR 372 at page 385 of which

Lord Justice May said this:

"What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an industrial tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the industrial tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisers' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the industrial tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account."
We were very properly reminded of the strictures in the Court of Appeal in the Retarded Children's Aid Society Ltd v Day [1978] ICR 437 where the Master of the Rolls Lord Denning said:
"Certainly no point of law was taken by counsel before the industrial tribunal. The argument was solely upon the facts, and the industrial tribunal considered it upon its own facts and circumstances. In those circumstances it is a strong thing to say that they have gone wrong in point of law. The only way in which it is suggested they went wrong is that they are said to have overlooked the provision in the Code of Practice about giving an oral warning or giving a second chance, and they overlooked the guidance which Sir John Donaldson gave in that case which I read. I cannot believe that they overlooked it. I should have thought that the industrial tribunal would have had the Code of Practice on the table before them all the time and they would have had the words of Sir John Donaldson in mind. It is true that the tribunal did not mention those matters specifically in their reasoning: but it does not mean that they did not have them in mind or that they went wrong in law. I go further. If you read their reasons in a broad sense, it seems to me exceedingly likely that they did have those points very much in mind. As Lord Russell of Killowen indicated in the course of the argument, the tribunal themselves took the point."
He gives various internal indications in that decision that the Industrial Tribunal must indeed have had an inkling of the relevance of the Code of Practice which was the factual issue that was there in mind.If we apply that to this case it seems to us that the problem really resolves itself to whether or not this Tribunal should assume that from that sentence "He actually claimed 13 months later on 21 September 1991, following this Tribunal's decision on his earlier application when for the first time he realised that he had a claim for what the Tribunal stated was part of his normal weekly wages" that the Industrial Tribunal not only looked at what Mr Middleton did not know and suddenly realised but that they also looked at the separate and as it seems to us very significant question, whether(a) he had an adviser at that time and(b) whether the adviser was appraised of the relevant factual background for making the claim that was ultimately made in the second Originating Application and if he was not, whether he was in any sense at fault for failing to do so.The problem is within a very small compass and it really is the familiar problem of how far it is legitimate for this Tribunal to take the decision of the Industrial Tribunal in accordance with its terms or whether we ought also to assume that other matters which are not mentioned in the Industrial Tribunal's decision have actually formed part of their reasoning.We have come to the conclusion that because there is such an important dichotomy between what the employee himself knew and ought to have known and what the advisers of the employee knew or ought to have known that it really is not legitimate for us to make the assumption that the Industrial Tribunal considered the adviser's position. There is actually no mention anywhere in the Industrial Tribunal's Decision of the existence of the adviser. That the adviser's frame of mind where he exists is an important feature that really does need separate consideration from the realisation and understanding of the client is, we think, very clearly established by the Palmer v Southend case as well as others and on that basis it does seem to us (not that this decision is perverse) but that this decision has tackled the problem from the wrong end.The Industrial Tribunal to our way of thinking has concentrated exclusively on what Mr Middleton himself realised. He was a bricklayer, and there is very little doubt but that the subtleties of the Wages Act, which is something which has taxed lawyers up to and including the level of the Court of Appeal, is something which would have been way above his head. What is much more important is the question whether his advisers, who in fact did exist, looked at this problem and whether they ought to have appreciated the possibility of making the claim earlier than the time that they did make it.We do not overlook the argument of some sophistication from Mr Suddaby that was advanced on behalf of Mr Middleton that what can be imputed not only to the employee but also the employee's adviser, is the view that because of the attitude that was being adopted by the employer, there may well have been a solidly arguable case for the proposition that the £50 bonus was not contractual and that therefore there was not a solid ground for claiming it in the first application as something which could be claimed in the alternative under the Wages Act along with the claim for constructive dismissal. Mr Suddaby very properly accepted that this was not a case of there being mutually exclusive rights either for constructive dismissal or a claim under the Wages Act, the two could perfectly well have been advanced in the alternative; but the answer for present purposes to Mr Suddaby's submission in our view is not so much that the proposition that he advances is not correct - it may be for aught we know - but the answer is that that aspect of the matter simply was not looked at by the Industrial Tribunal so far as we can tell from its Decision because the Industrial Tribunal simply gave no attention at all to the question of the adviser and what either he knew or ought to have known.On that basis it does seem to us that whatever the right answer to Mr Suddaby's submission may at the end of the day be, this is something which needed to be looked at and was not looked at and on that basis this appeal in our view succeeds. That has the unfortunate effect that the parties are really at square one so far as the Wages Act claim is concerned which is a most unfortunate state of affairs. We think that it would be better for this application to go back to a different tribunal but we express the hope that it may be possible to deal at one and the same time both with the jurisdiction point and the substantive issue.