British Coal Corporation v Pentland & Ors [1995] UKEAT 45_95_1606

EAT

British Coal Corporation v Pentland & Ors

[1995] UKEAT 45_95_1606 · 1995-06-16

MR JUSTICE MORISON: The facts of the matter are in a very short compass. On July 8 1994 there were presented to an Industrial Tribunal nine applications. Four days later a tenth application was presented. All the applications were in identical terms. In the first box an applicant is asked to specify the complaint which he/she wishes the Tribunal to decide. In that box was written "wrongful dismissal and a failure to consult under Section 188 Trade Union & Labour Relations (Consolidation) Act 1992". In box 2 the person is required to give his name and address in capitals and each individuals name was included in box 2. In box 3 each applicant named as his representative the National Union of Mineworkers and gave as their address a place in Durham. Attached to the application as paragraph 10 was a statement giving full details of the complaint. That statement included within it this paragraph "We pointed out that we were employed at Tursdale Workshops when it closed. All employees except for us were given an additional payment of £7,000 for agreeing to forego statutory consultations. At that time we had stayed on at British Coal's request. We argued that we should be treated on the same basis and we were entitled to statutory consultations on the same basis".

The nature of the complaint in broad terms was that each of the Applicants had been pressurised into accepting voluntary redundancy on 22 April 1994 `in face of threats' that the redundancy scheme was to be withdrawn as from the end of that month. Section 188 of the 1992 Act requires an employer to enter into consultation with independent trade unions, recognised by him where a redundancy is proposed. The Section is primarily aimed at a mass redundancy situation as sub-Section 2 makes clear:

"Where it is alleged that the employer has failed to consult in accordance with his obligations under that section, then the trade union may present a complaint to that effect to an Industrial Tribunal and if well founded a protective award may be made."

Such an award involves the payment to each of the affected employees of a week's pay for every week of the protected period specified by the Industrial Tribunal. Therefore whilst the right to make a complaint belongs to the union and cannot be made by an individual where such complaint is well founded it is the affected employees who will benefit financially. On 12 August 1994 British Coal completed standard form Notice of Appearance, which set out the history from their point of view. It was contended that the employees volunteered to leave on enhanced redundancy terms and signed a document to that effect, that the employees had received under the redundancy schemes substantial payments which exceeded their basic or compensatory awards, that either the dismissals were fair or the amount of any award would be reduced or extinguished by what had been paid. Although it was said that the applicants' position had been discussed with their union representative, British Coal did not address the claim if such was being made for a protective award or to refer to that part of the paragraph, to which we have referred, which refers to statutory consultations."

On August 5 1994, the Industrial Tribunal received a letter from the union's Head Office in

Sheffield, saying that they had been given the case by their North East area and were representing the Applicants from now on. They said that from the listing of the cases there appeared to be no separate listing for a complaint under Section 188 of the 1992 Act . The letter continued:

"I therefore wish to make it clear that there are two separate complaints as clearly stated on each original application form: The first is for unfair dismissal in respect of each applicant... The second is one by the Union on behalf of all the Applicants over British Coal's failure to consult with the Union regarding the applicants' dismissal by redundancy.... It may be that some confusion has arisen over the fact that our North East Area did not enter its name along with that of each applicant in Box 2 of the originating application form. However, they did not think that this was necessary, as they were already listed on the IT1 as representative."

On receipt of this letter an Industrial Tribunal Chairman very sensibly decided that as no application for a protective award had been registered with the Central Office of the Tribunals, an inter-locutory hearing should be arranged. British Coal asked to attend such a hearing, pointing out that the reason why no such application had been registered was because no such application had been made and any application would now be out of time, there being the usual three months period for the bringing of such a complaint after the acts complained of were done.

The matter came on for hearing before an Industrial Tribunal Chairman sitting alone on 13 October 1994. The Industrial Tribunal's decision is set out in paragraph 2 and 7-10 of the written decision. I quote:

"2. Each application states that the applicant wishes the Tribunal to decide two issues, namely unfair dismissal and a failure to consult under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. In each case the individual employee is named as the applicant and his representative given as the National Union Mineworkers ("the Union"). The narrative to each application does not refer directly to any claim under Section 188 but rather appears to be directed solely to the issue of unfair dismissal."

7. The starting point in determining the status of these documents in relation to any claim by the Union is Rule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. In broad terms, this provides that the Originating Application by which an applicant commences proceedings should be in writing, should set out the applicant's name and address; the name and address the person against whom relief is sought and the grounds on which that relief is sought, with particulars thereof."

8. As far as the Union is concerned, its name and address was on the application, as was that of the respondent. The grounds on which relief is sought were also contained in the reference to the relevant statutory provision, in Box 1 of the Originating Application. It is correct that no further or detailed grounds for the application were given, but that does not appear to me to be fatal. The nature of the application is clear and if the respondents feel more specificity is required, they can seek an order for further particulars."

9. The fact that each application does not purport to be signed by or on behalf of the Union is not relevant - indeed, there is no necessity for the document to be signed at all. Nor is there any requirement for a separate form to be submitted in respect of the 2 applications, even where there are 2 distinct applicants and a distinct cause of action in respect of each.

10. In short, the only basis on which any attack could be mounted on the documents was the fact that although the Union was named, that naming did not occur in Box 2 of the form - details of the applicant -but rather in Box 3, where it is named as representative. Where the document clearly refers to a claim under section 188, a claim which can only be brought by a trade union and where a recognised trade union is named on the face of the document, the taking into account the flexible approach which the Appeal Courts have invariably laid down in connection with such documents, I conclude that each Originating Application must constitute a valid application by the Union for a declaration and award under section 188. The title of the action will be amended and the matter will proceed to hearing on that basis."

British Coal appealed against that decision, saying in effect that the Tribunal wrongly accepted the argument that because the union were mentioned in box 3 which provides for details of the representative, they could be treated as Applicants in their own right. A distinction was to be drawn between the union acting as a representative on the one hand and as a party on the other and these applications were personal applications from individuals. It is contended on behalf of British Coal that, the IT1 forms in this case cannot be construed so as to comprise a claim being made by the union, in relation to an alleged breach of Section 188 of The Act . Before us, it is submitted that:

"... it is not enough, as the Chairman held it was, for a Respondent to deduce that, because the NUM was representing the Applicants, and because an application under section 188 cannot be made by an individual but only by a Trade Union, that the NUM was itself making an application. It was not, whether or not it intended to."

The decision of the National Industrial Relations Court in Cocking v Sandhurst (Stationers) Limited

[1974] ICR 650

is referred to. There Sir John Donaldson said:

"In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the Tribunal should only do so if they are satisfied that the mistakes that ought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against."

It is submitted that the applications were misleading, as it was not evident that the union was making its own claim and were such as to cause reasonable doubt as to the identity of the person intending to claim.

It is said that the Tribunal were wrong to treat the applications as one made by the union and allow it to be clarified. The Tribunal Chairman should have required the union to present a new complaint which would now have been out of time.

For the union we are reminded of what was said by the E.A.T. in Gosport Working Men's and Trade Union Club Ltd v Taylor [1978] 13 ITR 321 at page 323 :

"The rules of procedure... are rules directed to the machinery of getting applications before tribunals so that the rights which the parties are asserting can be decided, and they must, therefore, be construed with a view if possible to make sense of them and to achieve, in any particular case, the object of the exercise. They must not be construed too strictly. They must be construed sensibly bearing in mind what the object of the exercise is."

The use of the Form IT1 is not mandatory, although any such application shall be in writing. Two applicants may apply in the same document. An unparticularised application is not thereby rendered invalid or void. It is submitted that because of the reference to Section 188 of the 1992 Act , it must have been obvious that the union was making a claim, since an individual cannot make a claim under that section. The letter of 4 August to which we have referred clarified the position. It was further submitted that we have no power to interfere with the Chairman's discretion on an inter-locutory hearing.

Those were the arguments carefully and ably presented to us. In our judgement the appeal should be dismissed. We regard the decision in this case as a close-run thing.

The two questions that seem to us to fall for determination are first: whether it is right to regard the union as having made a mistake. In other words, that it was intending to make a claim under Section 189 of The Act but failed to put its name in the right box. Second, if so, whether on the true construction of the Application Form such a complaint was being made by the union having regard to the Gosport decision. From what was said in paragraph 10 of the Application Form on one view of the matter, the individuals were using the duty to consult the union as a lever to get themselves further compensation. They were arguing, so it might appear, that they should have been paid additional money to compensate them for the union foregoing statutory consultation. On the other hand, the early letter from Union Headquarters would suggest that a mistake had been made and that it was the union's intention to make their own complaint and they had quite inadvertently failed to put their name in box 2 because they did not think it was necessary.

We consider on balance that the Industrial Tribunal were entitled to conclude that a mistake had been made and that the union genuinely believed it had made a complaint under Section 189 . It is not suggested that British Coal have been prejudiced by late notification of the claim, because a specific complaint of a breach of Section 188 had been made, and because British Coal and their advisers must have realised that such a claim could not be made by an individual. It seems to us that it is proper to construe this application as if it had been made jointly by the individual concerned and by his union. We would go further; had the union presented their own complaint a few days out of time in the circumstances which have occurred here, in the belief that they had already made a complaint, and in the light of the fact that there had been a pure clerical error, we would have expected an Industrial Tribunal to have been minded to have extended time for making such a complaint.

What has happened here in our judgement is largely to be described as a clerical error which has now been put right. In our judgment the Tribunal Chairman was entitled to construe the complaint as being a complaint in effect, by the union and the individuals. His decision cannot be faulted. We are, in any event, instinctively reluctant in this court to allow appeals on purely inter-locutory matters, where, to some extent, the Chairman is exercising a discretion. That said, it was regrettable that the union which is experienced in litigation matters, should have made the error in the first place. Accordingly, having given the arguments careful consideration, we are of the view that this appeal should be dismissed.