Lardier v British Gas Research & Technology Plc [1997] UKEAT 45_97_0302

EAT
Lardier v British Gas Research & Technology Plc
[1997] UKEAT 45_97_0302 · 1997-02-03
MR JUSTICE KIRKWOOD : This is an appeal against the decision of an Industrial Tribunal sitting at London (North) on 23 November 1996. The decision and extended reasons were promulgated on 4 December 1996. It was a decision on a preliminary point. It arose in this way: on 24 August 1987 Miss Lardier was employed by the Respondent to the application, British Gas Research & Technology Plc. On 31 March 1996 she was dismissed for redundancy. On 4 May 1996 the Industrial Tribunal received her originating application complaining of a breach of contract relating to a grading procedure and unfair dismissal. Thereafter Miss Lardier sought by letter to amend the originating application. On 4 July leave was given. The amendment raised two further complaints, one was discrimination on the grounds of sex and the other was action short of dismissal and all those complaints came to be included in an IT1 with the date 26 June 1996 in which they are set out one after the other. It was the last of those matters, the action short of dismissal, which was the subject of the trial of the preliminary issue and the question was whether it was out of time.The complaint itself is made under s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and the time-limit for the complaint is set by s.147, which sets a limit of three months beginning with the date of the action to which the complaint relates or where that action is part of a series of similar actions, the last of those actions.The Industrial Tribunal found that Miss Lardier contended that Mrs Pitt was her line manager. Until reorganization in 1993 both Miss Lardier and Mrs Pitt had worked at the employers' premises in Fulham. In 1993 Mrs Pitt was transferred to Loughborough and Miss Lardier transferred to Bishop's House in Holborn. I take that summary from background facts found by the Tribunal.In the extended reasons the Tribunal made clear that it was Miss Lardier's case that there was no particular date but a continuous attitude or action short of dismissal from her line manager and human resources; and, referring to the answer to a request for further and better particulars, the Tribunal reiterated the words of Miss Lardier:
"Most of my queries and problems were contained in my memo to her (Mrs Clare Pitt) dated 28 June 1995. She refused to speak to me after 1995 and obviously refused to deal with her duties as my line manager from the time of the amalgamation (January/February 1993 until 31 March 1996) ... I never got a reply to my memo to her dated 28 June 1995 although I have an E-Mail 'read receipt' for it. She never performed aspiration interviews with me and I was never consulted about my redundancy."
The findings of the Industrial Tribunal were that:
"Mrs Pitt who Miss Lardier contends is her line manager had taken no action in relation to Miss Lardier's employment position since she moved to Loughborough in 1993. She had on two occasions told Miss Lardier to go to the union for help firstly after she received the memo in June 1995 and secondly in January 1996. In January 1996 it was the last occasion on which Miss Lardier had any exchange with Mrs Pitt. The final correspondence that Miss Lardier had with the Human Resources Department of British Gas was in December 1995.
9. The Tribunal does not consider that a statement indicating that Miss Lardier should not go to her, Mrs Pitt, but should go instead to the union are words that constitute action short of dismissal with a view to compelling the employee to join the union. Even if they were capable of such an interpretation the last date when such words were uttered fell outside the three month period immediately pre-dating the presentation of the Originating Application. As such, it would mean that the Tribunal has no jurisdiction to consider the complaint as the Originating Application was out of time."The Tribunal was well aware that Miss Lardier's case was that there was not any one specific action but a continuing inactivity on the part of British Gas which constituted action short of dismissal and they referred to that in their extended reasons. The Tribunal found that the complaint relating to action short of dismissal was out of time. They then exercised a discretion given to them in s.147(b) of the 1992 Act and, having regard to those matters, decided not to extend the time.Miss Lardier's appeal is not directed to that s.147(b) matter but to the finding that she was out of time with her application. In her notice of appeal Miss Lardier relies first on that assertion, namely, that her complaint of an action short of dismissal was not out of time and she reiterates that, in effect, she relies upon a continuing state of affairs. She has shown us a letter of 8 March 1996 from Mr Lynch, who was one of the people she says was concerned in an overall sense in this attitude against her. We have seen the letter. There was nothing in that letter that could possibly amount to an action within the meaning of s.146 of the Act and it does not seem to us to advance the cause.Miss Lardier says that the finding of fact by the Industrial Tribunal was unsupported by evidence and, indeed, inconsistent with the evidence. The Industrial Tribunal plainly searched for something that might amount to an action within s.146 and could not find one. In referring to the January 1996 date, the Tribunal said, in terms, that they did not think that that did amount to an action short of dismissal but even if did, that was the last thing they could possibly find. On this narrow point, it is quite impossible for this Appeal Tribunal to go behind the findings of fact of the Industrial Tribunal. I describe it as a narrow point because it seems to us that Miss Lardier has not fully separated in her mind action short of dismissal for the purpose of compelling her to be or become a member of any trade union or the particular trade union or one of a number of particular trade unions, from her general belief that it was her absence of trade union membership that was or may have been one of the reasons that she was dismissed for redundancy. But the two are different and it is our understanding that her belief that she was selected for redundancy because she was not a union member is a matter she can raise, if so advised, before the Tribunal that is going to hear the outstanding complaints later this month.Secondly, Miss Lardier says that the Tribunal misdirected itself as to the law. There appears to have been some discussion of and reliance placed by the Tribunal on the decision of the House of Lords in Associated Newspapers v Wilson [1995] ICE 406 . The material part of that decision of the House turned on the question whether action in the Employment Protection (Consolidation) Act 1978, which was the precursor legislation, included an omission to act and the House of Lords decided that it did not. I should say the Industrial Tribunal followed the decision of the House of Lords.Thirdly, Miss Lardier says that the Chairman of the Industrial Tribunal was biased and unfair towards her and was incompetent and unprofessional. She sets out fully in her grounds of appeal the matters that so upset her in her perception of how the hearing went and relies on that as a reason for upsetting the decision of the Tribunal. We wish to stress and emphasize that we are concerned only with the complaint of action short of dismiss on grounds related to union membership, the s.146 complaint. We are not in any sense concerned with the other complaints which Miss Lardier wishes to argue before the Industrial Tribunal and for which four days have been set aside later this month. But on this single point we find no reason to conclude that the Industrial Tribunal misdirected itself in law or reached a decision that was perverse or any other reason why the decision of the Tribunal should not stand and, accordingly, this appeal is dismissed.