Hendricks v Lewden Metal Products Ltd [1996] UKEAT 1181_95_2102

EAT
Hendricks v Lewden Metal Products Ltd
[1996] UKEAT 1181_95_2102 · 1996-02-21

JUDGE PUGSLEY:

Industrial Tribunals were established to provide an economic and expeditious way in which disputes between employer and employee could be resolved. Tribunals have to deal with matters that are complicated, and often involve detailed statutory provisions. They also have wide jurisdiction based on such concepts as equity and fairness. There is a danger that what is becoming a "happy hunting ground" for the legal profession, can be a grave yard for small companies faced with difficult and complex cases.In this case, the Appellant is represented by FRU (which as we understand it, is a body with a charitable foundation). We commend their work and we pay tribute to Mr Draycott, who has withstood with good manners, courtesy and persistence, some of the concerns that have been expressed by all members of the Tribunal. We are concerned that this case illustrates some of the problems. This is now no less than the third hearing involving this case. There was an initial hearing which was concerned with whether or not the Applicant could maintain an action for unfair dismissal in view of her age. There was a further hearing before the Industrial Tribunal as to whether or not she could maintain a claim for sick pay. We are now hearing the appeal of this matter. We point out that there is within the County Court a small Claims Court. This matter could have been pursued there, as Mr Draycott has accepted. We question the wisdom of having to hack away through the tangled undergrowth of English and European law, purely on a matter as to time limit. There has not yet been an adjudication as to the merits. We are told the sums involved are less than £1000.It would be very ironic if a Tribunal, the principal part of whose jurisdiction was under a title Employment Protection (Consolidation) Act 1978 by the diffuse and complex nature of its legal proceedings, were to put in threat employers and employees, because of the cork of litigation. We make no criticism at all of Mr Draycott to whom we have paid tribute. We hope that he will carry back the message to those who are concerned in the operation of the organisation for which he appears, that the lay client is entitled to advice as well as to advocacy. That a theoretical legal argument may exist, but in furthering that, it may be frustrating the real and principal object of this legislation, which is to provide an economic and expeditious way in which disputes can be resolved. It is one thing to have a legal right, it is quite another to turn a court into an academic seminar.The starting point is the decision of the Industrial Tribunal on 4 September 1995 by a very experienced Chairman and two Members. In that decision it is pointed out the Tribunal has already decided it had no jurisdiction to entertain the Applicant's claim for unfair dismissal. The Respondent employer had no normal retiring age and the Applicant was at the effective date of termination over the age of 65. It is perhaps at this stage pertinent to note what her Originating Application says. I think it would only do

justice to it by reading it in full:

"On 31st March 1994 I received a formal verbal warning. This was the first occasion on which I was informed that my employers were unhappy with my work. At the time I informed my employers representatives that I did not understand what was happening. But, no attempt was made by them to explain in a way that I would understand, the standard of work that was required, how it was felt I could best achieve this and the assistance my employers were prepared to provide.
I heard nothing further about this matter until 20th May 1994 when I was told my employers had decided to retire me on 5th August 1994. The reason my employer has provided for this decision is because I am over retirement age." [The Applicant was born on 14 May 1928, so at the time we are talking about, she was aged 66.] However, my employers have retired staff at an older age and continue to employ staff who are either of the same age or older than myself.I believe that I have been unfairly dismissed.There is also the issue of unpaid sick pay that I ask the Tribunal to consider.In 1991 the company Doctor diagnosed cataracts in both my eyes. (Prior to this I had consulted my own GP and medical specialists, who failed to detect this. He referred me immediately to Moorfields Eye Hospital.I required two operations. The first took place in September 1991 and the second in April 1992. Both operations rendered me unfit for work for a period of eight weeks.I believe I met the conditions for the company sickness payments. Although, I understand such payments are discretionary, my employers have not provided any good reason for refusing to make an award."So here we have an Applicant making complaint that she has not received sick pay in 1991 and 1992. From that complaint it would seem primarily that she is complaining about the company sick pay. If one looks at the terms of the sick pay in the bundle provided for us, it is true that there is set out the statutory sick pay provisions, and then under the company's sickness payment, and it is commonground that this Applicant was an hourly paid employee, it says:
"For hourly paid employees who have 7 years unbroken service, and subject to suitable evidence of incapacity, the Company will make up the pay from SSP to the full rate of pay..."
there is then a sliding calculation which diminishes the amount as the weeks go by. Under (iii) it says:
"The Company reserves the right to suspend or cancel Company sick pay without prior notice. All payments are at the discretion of the Company."
The position is simply this, the Applicant took no steps when she was away from work, to assert that right. We are told, although we have no notes of evidence, that she grumbled a bit. There was no formal complaint, and we were told by Mr Levy that the Applicant's evidence was along the lines that she had taken advice and gone back to work. The Tribunal in paragraph 2 and 3 of their decision dealt with this matter very clearly. They said this:
"... Mr Draycott who appeared for the Applicant, conceded that he could not possibly advance any arguments why it had not been reasonably practicable for the Applicant to present a claim under the provisions of the Wages Act 1986, within 3 months of the deductions having been made from her wages. He based his claim first on the provisions of the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994. He submitted that the Applicant had been dismissed on 5 August 1994 which is clearly so and is clearly after the coming into force of those regulations on 12 July 1994. He further submitted that the deduction was also a breach of contract and that that breach of contract was outstanding on the termination of the Applicant's employment, and that her application had been presented within three months of the effective date of termination. That is clearly the case, it having been presented on 8 September 1994. He therefore submitted that the Applicant had outstanding at the termination of her employment, a contract claim and that that claim had been presented in time."
The Tribunal went on to consider this point. They pointed out that an unauthorised deduction of wages is, in nearly every case, also a breach of the terms and conditions of a contract employment. There is a contractual obligation to pay the contracted wages due without deductions, consequently the Tribunal said in paragraph 3:
"... it seems to us clear that an application could be made either under the provisions of the Wages Act, or for breach of contract under the Order in respect of deductions of wages. [Then pose this question] Can it be said, however, that such a claim is outstanding on the termination of the employees employment, when the deduction occurred some three or four years before and the Applicant is precluded from making a claim under the Wages Act because of the provisions of section 5(2) of that Act? Our view was, that while clearly a claim could be made under the provisions of the Order for deductions of wages in breach of contract, in circumstances such as this the claim is not outstanding on the termination of the employees employment. The point as it appeared to us was that the Applicant had another avenue of approach, namely, a claim under the Wages Act 1986 and that that claim was out of time. Our view was that this meant that the claim was not outstanding on the termination of the employees employment because there was not claim under the provisions of the Wages Act, because it was time barred. If the Tribunal chose to resurrect the claim by saying that it was not reasonably practicable to present the claim within the period of three months allowed by Section 5(2) of the Wages Act 1986 and that it had been presented within a reasonable time thereafter, then the claim could proceed under the provisions of the Wages Act. It was in our view not permissible for an Applicant to seek to avoid the provisions of Section 5(2) of the Wages Act 1986 by praying in aid a later dismissal as giving rise to a contract claim. Accordingly, on this point, we find that the Tribunal has no jurisdiction to entertain the Applicant's claim."
We approve that reasoning. But may, if we say so, take it one stage further. The precise statutory provisions are dealt with under the Industrial Tribunals Extension of Jurisdiction England and Wales Act , England and Wales Order 1994 says:

Section 3

"Proceedings may be brought before an Industrial Tribunal in respect of a claim of an employer for recovery of damages or any other sum, other than the claim for damages or for a sum due, in respect of personal injuries, if: (a) the claim is one to which Section 131 of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine. (b) The claim is not one to which Article 5 applies and (c) the claim arises or is outstanding on the termination of the employee's employment."
It is not suggested this claim arises on the termination of employment, that clearly is concerned with wrongful dismissal cases. We add to the point made by the Tribunal, adopting their reasoning, we go much further and say quite simply this: we do not understand as a matter of law and as a matter of logic, how a claim can be said to be outstanding if it has not been raised. We are grateful to Mr Draycott for drawing our attention to this matter, because we accept that there may well be cases in which it would be very difficult for a Tribunal to construe the word "outstanding". At what point does a claim become outstanding? We can envisage all sorts of circumstances in which a Tribunal would have to consider very carefully the meaning of such a word. Quite bluntly, this is not the case which comes within the factual situation to require that analysis of law. It would be a waste of legal learning to attempt to venture upon that voyage.This claim was sterile and old. If the Applicant had felt the company had not honoured their contractual obligations, she could, if she so wished, have left and asserted a claim for constructive dismissal. She could have gone to the Small Claims Court. She could have applied to a Tribunal under the Wages Act . We are concerned and we are not determining this matter, at what the reality could be, if the section was given the interpretation urged by Mr Draycott. Section 3(a) of the Extension of Jurisdiction Order talks about the claim is one to which Section 131(2) of the 1978 Act applies, in which a Court in England and Wales would, under the law for the time being in force, of jurisdiction to hear and determine. Without deciding the matter, we are concerned whether or not that meant a claim long since subject statute barred under the provisions of the limitation acts might still be one that could be resurrected. As there is a requirement, as we understand it, to plead the limitation acts as a defence, it could be said that a court did have jurisdiction, even though the claim extended well beyond the period allowed by the Limitation Acts. We do not decide the case on that point. We are concerned that it might well be argued that a party had an unlimited right to resurrect the claim. We question whether Parliament intended to provide that facility and in our simple, straightforward and prosaic way, we simply rely on the word of the Order, and say "you cannot claim something is outstanding if you have not raised it". She had not raised it. She had abundant opportunity. She had taken no action. We do not find any error of law in the Tribunal decision.We now come to what might conveniently be called the European dimension. Mr Draycott with the audacity that sometimes characterised the advocate, has argued that we should simply disregard the case of Biggs v Somerset County Council [1995] IRLR 452 . He brought to our attention, for which we are grateful, the fact that the Court of Appeal have accepted it as being an accurate statement of the law, but he begs to differ. In a nutshell, we feel that we perhaps should have greater deference to a decision of the of the President of this Tribunal and to the Court of Appeal. Quite simply we do not that it can be said that we can disregard Biggs v Somerset Council . It was a case in which the Industrial Tribunal Chairman had to consider an application from a part-time teacher who was dismissed on 31 August 1976. On 3 March in the case of R v Secretary of State for Employment [1994] IRLR 176 ex-parte Equal Opportunities Commission , the House of Lords decided that the hours per week qualifying condition was indirectly discriminatory against women and contrary to European Community Law. On 1 June 1994, within three weeks of that decision, Miss Biggs made a complaint to the Industrial Tribunal. The Industrial Tribunal Chairman held that the Tribunal did not have jurisdiction to entertain the complaint. The Chairman considered that the relevant time limit for presenting a complaint was the unfair dismissal time limit of three months set out in Section 67(2) of The Act , and that time started to run on the date of dismissal, except that it was not practical for Miss Biggs to have presented her claim in time; that she was prevented from doing so by the statutory provisions then in force relating to the hours per week qualification. The Chairman took the view that there was no further period by which a time limit could be extended, which would reasonable within Section 67(2). He said "it seems to me it is impossible to suppose that it is now just to put in a claim for unfair dismissal, presented eighteen years after the events took place." The matter was fully argued before Mr Justice Mummery and I do not intend to attempt to paraphrase a decision, because it would be at risk of distorting it. Suffice it to say that, the E.A.T. held that the Industrial Tribunal Chairman had not erred in law, in that the time limit began to run from the date of dismissal in 1976.It is significant in this case that the Applicant was not within three months of the changed regulations which equalised the age of sickness benefit. That change we are told took place on 6 April 1994. We can see no basis for saying that an action under Section 119 is maintainable in these circumstances having regard to Biggs . The Industrial Tribunal said very simply in the decision:"Our view is that if proceedings are going to be brought under the provisions of Article 119, then it should have been brought at the time. It is not a case that the law has been uncertain in relation to the question of requirement to work 16 hours per week or in relation to the requirement to have 2 years continuous employment. It was possible at the time when the deductions were made, for the Applicant to challenge legality of the different ages having regard to the provisions of Article 119. Having regard also to the fact that since an employer is merely the agent of the Department of Social Security paying statutory sick pay, there must be an argument whether the proper respondent should not have been the Department of Social Security and not the employer. We are not prepared now to allow a claim to go forward under the provisions of Article 119".We consider there was abundant evidence on which the Tribunal could find that the Applicant had not complied with time limits which are necessary as to the claim to bring it within the Industrial Tribunal's Extension of Jurisdiction in England and Wales Order 1994 and also it was not open to the Applicant to bring a claim under Section 119.We are a little bemused by the claim on the ground of appeal which does not feature in the Tribunal decision: though we accept, because Mr Draycott tells us, it was a matter that he did raise. That is basically, that he contends that Section 6(1)(a) of the Equal Pay Act 1970 is in breach of the provisions of the Equal Treatment Directive . We are bound to say that Mr Draycott has not been able to refer us to any case where, in these circumstances, an individual has been able to rely on a directive to bring a case against a private company rather than an emanation from the State. With due deference to Mr Draycott we are impressed by the eloquence and tenacity of his submission, but not as to its merit. The reality in our view is simply this, the Industrial Tribunal was faced with a complex argument. It reached what we considered to be the proper decision and there was no error of law. As far as the claim for company contractual sick pay, we are bound to say we doubt whether it is a claim that could be sustained. But we are not determining that matter, but it would seem to us that it was a discretionary matter.As far as the claim for statutory sick pay is concerned, we do not wish to go into great detail. Some of it, we understand at that time - the regulations so often change - was to be met out of the public purse and some by the employer. All we can say is, the employer was obeying the law as it stood. The Respondent company had nothing to do with the legislative process. They were acting lawfully on the law as it stood. Had the Applicant wished to pursue the matters, we assume she could have done so to a Social Security Tribunal at that stage. It is not a matter for us. We regret that the employer is here to answer for what they were doing no more of that aspect of the case, than following the requirements of the law as they understood them to be. For the reasons we have given this application fails and the appeal is dismissed.