Caine v British Gas Plc [1997] UKEAT 1171_96_1902

EAT

Caine v British Gas Plc

[1997] UKEAT 1171_96_1902 · 1997-02-19

MR JUSTICE KEENE : This is a preliminary hearing into this appeal so that this appellant may show cause why the appeal should be not dismissed at this stage for failure to disclose an arguable point of law.

The appellant has not appeared today and has informed the appeal tribunal that he does not intend to appear. We shall proceed to deal with this matter on the documents before us.

The facts as found by the Industrial Tribunal were that the appellant had been continuously employed by the respondents from 1975 until 31st October 1995. Consequently they found that date to be the effective date of termination of his employment. They noted that he received a payment of £20,864.93. He presented an originating application describing his complaint as one of redundancy. That application was presented on 25th April 1996.

The tribunal noted that the appellant was a member of a trade union at the time when negotiations took place concerning his voluntary retirement, and that he consulted with his trade union shop steward about early retirement, and was advised to continue with his negotiations. The tribunal found that the appellant freely volunteered to take early retirement, having taken advice from his trade union representatives. In consequence, they concluded that he did not have a valid claim for an increased redundancy payment under s.81 of the Employment Protection (Consolidation) Act 1978 . They further decided that he did not have a valid contractual claim under s.131 of the same Act, as it then was, because he had been paid a sum of money which he had agreed to accept. The appellant had in his originating application made a claim principally in respect of the amount of what he said was a redundancy payment due to him.

The tribunal then went on to make a point about the application being out of time. They said:

"If the applicant had a valid claim under Section 131 of the said Act his Originating Application was not presented within 3 months of the effective date of termination namely 31 October 1995 and it cannot be said that it was not reasonably practicable for him to have done so, ..."

Consequently, they regarded and that claim as being out of time.

That passage in their decision has given rise to some confusion, at least in the appellant's mind, since he was under the impression that he had six months to lodge his application. In so far as his claim was in respect of a redundancy payment, it seems to us that that is right by virtue of s.101 of the 1978 Act. However, the tribunal was referring not to a redundancy claim but to a claim under s.131 of the Act.

In any event, whatever the confusion there may have been in respect of whether the application was in or out of time in respect of the redundancy claim or the contractual claim under s.131, the main basis of the Industrial Tribunal's decision was a decision on the merits of the claim and not on whether it was in or out of time. The basis of the tribunal's decision, as we have indicated, was that the appellant took early retirement on a voluntary basis. Consequently this was not a case of redundancy at all, but one of voluntary early retirement. We have seen no evidence which can indicate that that decision was wrong in law.

The grounds of appeal in this case do also raise an allegation of bias by the appellant on the part of the Industrial Tribunal Chairman. The Employment Appeal Tribunal Registrar on 26th November 1996 directed, as is customary, that an affidavit should be filed supporting that allegation of bias. No such affidavit has been filed, and in consequence, we take the view in accordance with the Practice Direction that that allegation cannot now be heard.

Taking the matter overall, we can see no arguable point which is raised on this appeal in relation to the true basis of the decision which the tribunal made. In those circumstances, the appellant has failed to show cause why this matter should proceed any further, and it will therefore be dismissed at this stage.