Newton v Vauxhall Motors Ltd [1998] UKEAT 83_98_3007

EAT

Newton v Vauxhall Motors Ltd

[1998] UKEAT 83_98_3007 · 1998-07-30

JUDGE J HULL QC :

This is a matter which began in 1991, a long time ago, when Mr Newton was dismissed by his employers, the Respondents, Vauxhall Motors Ltd. In fact he was dismissed for the first time then, he was re-instated, he worked and the effective time when he was dismissed came either on 10 February 1992 or 9 March 1992. That is really the subject of this appeal as we understand it at the moment.

If his dismissal was as early as 10 February 1992 then his IT1, his Application to the Industrial Tribunal, complaining of unfair dismissal, which was presented on 4 June 1992 is out of time; outside the three months allowed. If his dismissal was in truth, as a matter of law, on 9 March then it is in time. He complains of unfair dismissal and he makes a complaint under the Wages Act. That matter was eventually adjudicated on, surprising to relate, by an Industrial Tribunal which sat in September and October 1996 and finally delivered its decision on 10 September 1997. Upon which, by a timeous notice dated 20 October 1997, the Appellant, the Applicant to the Industrial Tribunal, appealed; the Industrial Tribunal having held that he was out of time for the reason which I have indicated.

Now in those circumstances the first step was, if the appeal was to be prosecuted, for the matter to be in our list under our Practice Direction to see whether there was a fairly arguable point of law and on 17 February of this year our Tribunal gave leave for the matter to proceed and that was notified to the Respondents' Solicitors - who up to that point, of course, had had no duty to take any part in the appeal - by a letter of 24 February 1998. That is from our Registrar and, under the Employment Appeal Tribunal Rules of 1993, Rule 4, first of all notice to be sent, and under Rule 6:

"The Registrar shall, as soon as practicable, notify every respondent of the date appointed by the Appeal Tribunal by which any answer under this rule must be delivered.

A respondent who wishes to resist an appeal shall, within the time appointed under paragraph (1) of this rule, deliver to the Appeal Tribunal an answer in writing in, or substantially in, accordance with Form 3... setting out the grounds on which he relies..."

So that is the duty to respond with an answer within the time fixed by our Registrar. As I say, it is not the practice to fix a time before the Practice Direction Hearing has been held because clearly it may not be necessary, in one result, for the Respondent to be concerned at all. But, leave having been given to proceed to a full hearing, our Registrar wrote on 24 February as follows:

"You are a Respondent to the appeal and if you wish to oppose it you should complete a copy of the enclosed Form 3 and return it so as to reach this Office by not later than 10th March 1998. Your Answer will then be served on the Appellant."

So that was the time fixed. It was, in truth, bearing in mind the time which would be taken in the post, rather less than 14 days, it was more like 10 days to file the Notice of Appearance. It is our experience that, very commonly, Notices of Appearance in cases which may be of some difficulty do not arrive within time and extra time is asked for. We have, of course, under our Rules, through our Registrar, power at any time to extend time in so far as that power is delegated to her, as this power most certainly is. What happened was that the answer in this case, though it was sent on 10 March, was sent by post rather than by fax and therefore did not arrive until 12 March when it was duly recorded and stamped in our office. In those circumstances it was two days out of time.

There was an application for time to be extended and what happened was that the Registrar wrote to the parties, wrote to the Appellant, saying that this application had been made and inviting comments. Comments were furnished and then, in the light of those, on 26 March our Registrar wrote saying:

"The Registrar has allowed the application for an extension of time in which the Respondents can file their Answer and an Order to this effect is following. However, any objections to the Order can be made as a preliminary point at the full hearing."

One sees the Order at page 12, time is extended to 12 March 1998.

Now that was an Order which strictly was not made ex parte, it was made after inviting representations and therefore the correct course to take, if the Appellant wished to challenge that Order, would have been to appeal within seven days to one of the judges of this Tribunal. That course was not followed, no doubt in reliance on what was said by the Registrar in her letter; an application is made today to reverse the Order and say, in effect, that the answer is to be struck out.

Now to see the merit of that, if any, one has to attend to what Mr Farrell has told us. He refers to natural justice. He says that this is a case in which it is alleged by these same Respondents that the IT1 was presented something like three weeks out of time, because of the construction which they put on events, and indeed which the Industrial Tribunal put on events. "How can it be just in those circumstances," says Mr Farrell, "to extend the Respondents' time? What is sauce for the goose is sauce for the gander".

There are several points to be made about that. First of all, the time for presenting the IT1 is very different from the time to present this answer. Instead of it being a case of 10 days or 14 days, under section 111 of the Employment Rights Act 1996, as it now is,

"an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal - (a) before the end of the period of three months, beginning with the effective date of termination," (that is the date of dismissal; when the contract ends) "or (b) 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 before the end of that period of three months."

So the time limit is quite different but, furthermore, this is not our language, not the language of our rules or anything like that, this is the imperative language of the statute. The tribunal is not to consider it unless it is presented within the three months or time is extended on the very limited ground that it was not reasonably practicable to do so. So clearly that is a very different provision. Moreover, that reflects the reality which has always been applied under the Limitation Acts by courts and tribunals of every sort; that there is indeed a different sauce for the goose and the gander in these matters. If somebody wishes to initiate an appeal then we are strict concerning the time for launching the appeal. Good cause must be shown if it is sought to appeal out of time and such leave is very grudgingly given. If somebody wishes to issue a writ out of time, in a court, or make a complaint out of time, then that is always jealously looked at because a person who wishes to start something, to use the commonplace expression, is in the position of having to comply strictly with the rules and there are limited exceptions only made by Parliament in Acts of Limitation; so also under section 111 which is, of course, far more strict than most Limitation Acts in that it allows only three months.

But when it comes to the procedure with regard to other steps taken in litigation, the incidents of ordinary litigation, the answer here, the time for complying with various rules about discovery, further and better particulars and so on, it is - although, of course, those rules are to be complied with - it is the common and ordinary practice of courts to make short extensions to those times if there is no prejudice. Sometimes the courts, of course, insist on knowing why the lateness has occurred - we have been told about that. It was an oversight by the Solicitors and it amounted to only two days. But the main consideration is; has there been any prejudice to the other side? Because the Rules are there to safeguard parties against prejudice and the approach therefore is quite different from the approach to people who wish to begin proceedings by issuing writs, or notices of appeal, or whatever it may be.

So we apply the conventions and practice which we know to apply to this and we ask ourselves is their any conceivable ground on which we could reject this extension of time and say that it ought not to have been given by our Registrar? Of course a great deal of expense has been incurred and steps have been taken on the basis of the Registrar's Order extending time. We have all three thought about it; we are all satisfied that this is a case where we should allow the Order to stand and if that shows that there is a difference in approach between the rule which applies by statute to the presentation of an IT1 and our own practice that is a matter which is of very long standing and hardly requires to be justified by us. It is clearly a different approach and we are satisfied that there is no possible ground on which we could, as a matter of law and practice, overturn our Registrar's Order. So the Respondents will continue to be represented here and to take part in this appeal.

[After hearing argument]

This is an appeal to us by Mr Francis Anthony Newton against a decision of the Industrial Tribunal sitting on 9 and 11 September 1996 at Liverpool under the Chairmanship of Mr Coventry with two industrial members. That Tribunal decided by a majority that they had no jurisdiction to entertain Mr Newton's complaint that he had been unfairly dismissed because it had been presented more than three months after the dismissal on which it was based.

The time lapse here is extraordinary but is readily explained, in part at any rate. Mr Newton was employed by Vauxhall Motors Ltd at their Ellesmere Port plant. He was a shop steward there, we are told, and he was working on the production line and what was alleged against him was that he and his colleagues had been "working the welt" as it was called. That was a system under which men in a working group would take it in turns to take some time off to read the newspaper, put their feet up, go to sleep or whatever whilst their colleagues carried on, no doubt with extra effort, and did the work and then, when those who were relaxing felt able to resume their duties, then two more, say, would take their leisure. The employers said that they very much disapproved of this practice and wished to stop it. That was the nature of the complaint and after several pieces of alleged misconduct, for one of which he was dismissed, Mr Newton was finally dismissed in February or March of 1992; the uncertainty is an important point

Then the chronology follows, very remarkably, he presented his IT1, complaining of his unfair dismissal on 4 June and the employers put in their IT3 on 26 June 1992. But the matter did not come before the Industrial Tribunal even on the preliminary point, which I mentioned, until September 1996; although it is right to say that it had been before the Tribunal earlier that year, in May 1996. At the same time as Mr Newton was dismissed another employee, Mr Walpole, was also dismissed and the two cases went in tandem. The reason for the extraordinary gap in time was that Mr Newton wished to pursue proceedings at law, in the County Court, and did so from 1992 onwards and it was at his request, apparently, that the proceedings in the Industrial Tribunal were stood out.

The Tribunal sat to hear this point on 9 and 11 September 1996 and then it was about a year before they gave their decision. There were extraordinary delays again and they finally gave their decision on 10 September 1997 and it was, as I say, that the Applicant, Mr Newton, was out of time.

This point did not arise until the occasion in May 1996 when both Mr Newton's and Mr Walpole's very much adjourned applications came before the Industrial Tribunal which was then preparing to try them. It was then that the Respondents, for the first time on that morning, told the Tribunal and Mr Newton and, I think, Mr Farrell, who was appearing for him, that they wished to take the point that the application was out of time. So the Tribunal evidently said, "Well we will try the case of Mr Walpole but it is clear that the case of Mr Newton ought to be tried separately" and so the case did not come on until later in the year, in September 1996.

The Industrial Tribunal then sat and considered this matter. They found various facts; I am not going to right through the decision but they found, among other things, that the employers complained of this alleged misconduct which occurred on 6 February. Mr Hunt, the manager, had sat to hear the matter on Friday 7 February, he then thought about it over the weekend and the Tribunal said that he then announced that Mr Newton was to be dismissed. There was then a period during which Mr Newton was paid his pay; he went on receiving his pay until 9 March 1992. An appeal was entertained and dismissed on that date. But during this period between 10 February 1992 and 9 March 1992 he was not doing any work in the factory. He was, it could be said, as a possibility, suspended. He was receiving his pay, deductions were being made in respect of his pension, he apparently received his share of a bonus; so the Tribunal had to consider what was the date on which he was truly dismissed, that is to say, his employment came to an end. Was it 10 February or 9 March? If it was on 9 March he was in time when he presented his IT1 on 4 June. If it was 10 February he was out of time.

They considered the facts and they reached a conclusion which is hotly challenged. They said, at first, paragraph 8(6):

"At Monday's hearing [10 February 1992] leniency was sought but Mr Hunt who was holding these meetings, summarised his views in the following way:-

'I have obviously had a considerable time to think about this case and have given it a lot of thought. However due to the advanced stage of discipline that these individuals find themselves in, I need to treat it with the seriousness and importance deserving of this case. Despite a catalogue of warning letters and previous suspensions you both continue [Mr Walpole and Mr Newton] to defy all attempts to correct your behaviour. Your previous catalogue of misconducts have culminated in this which is now viewed as gross misconduct and I have no alternative other than to terminate your employment with Vauxhall Motors'."

Then there was a "failure to agree" which was registered and the final stage of the procedure was conducted on 9 March by Mr Reilly, plant director, and they refer to the minutes of that meeting - and at the conclusion of that meeting Mr Reilly said:

"...having considered all the facts of the case and also the fact that Newton and Walpole had previously been warned about the consequences of a repetition of their unacceptable behaviour he saw no reason for compassion and upheld the dismissal. (our underlining)."

"It is noted here", says the Tribunal,

"that the applicant had continued to be paid up to the conclusion of the appeal process. This was in accordance with a local agreement or understanding between the respondent and the Unions concerned."

Pausing there, we would record - this not a ground of our decision but we would record - that Mr Farrell, on behalf of Mr Newton, disputed Mr Hunt's recollection of what he had said and the authenticity of his note of what he had said from which the Tribunal quoted and I have read. Further, he disputed the existence of any such local agreement or understanding. So those were the matters which the Tribunal record, or what appear to us to be the most important matters. They went on to say that their majority found that the effective date of termination was 10 February but the dissenting member found - and we are told that this was a finding of fact - that it was 9 March 1992 and Mr Gorton, to whom we are very grateful, says this was fundamentally a finding of fact, as are the matters to which we have already referred.

However the Tribunal, in elucidating this question of fact, as we are inclined to think it quite rightly is described, thought it necessary to refer to cases and case law. They refer to Sainsbury v Savage [1981] ICR and the National Heart and Chest Hospitals Governors v Nambiar

[1981] ICR 441

. They quote from the Sainsbury case and the Nambiar case and they say, citing from the decision of the Employment Appeal Tribunal in Sainsbury :

"In our view, when a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being 'suspended' without pay during the determination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act."

We rather regret that that decision was cited to and relied and upon by the Industrial Tribunal. It was a decision on the facts of that case and that case was a case in which it was common ground and was never challenged that the dismissal had taken effect. It was the end of the employment on 16 January. There were then appeals. There was then a question of an offer of further employment with payment of back pay. That was not accepted. Then, eventually, it was accepted by the employers that matters had come to an end and the dismissal was then affirmed. It very much depended, as all such cases must, on its own facts and, as in the Sainsbury case, we echo what was said by Roskill L J in that case, that the citation of cases on similar facts is of very limited, if any, utility.

In the Nambiar case what the Industrial Tribunal, and our Tribunal, were considering was a case in which it was conceded that employment had come to an end on a particular date and we were then looking to see whether anything in the appeal process and the payment of arrears of salary and the offers of fresh employment and matters of that sort had altered that in some way or other. What we are concerned with in the present case is; what was the date on which the employment came to an end? One is looking not to see whether an admitted date of ending is in any way altered by what followed but what is the date of termination? That is why one looks at, among other things, the fact that Mr Newton was, throughout this month, paid his salary, suffered deductions for his pension and so on.

The account of that which one would think the Tribunal would have done well to concentrate on was the account that there was this local agreement or understanding. Now, first we were told by Mr Farrell that that was absolutely wrong and without foundation. "There was no evidence to support that." But now it emerges, we are told by Mr Gorton, who has his record of what Mr McDonough, the personnel manager said in his evidence, that evidence to support that was given by Mr McDonough. It has been noted that in this great factory with all these employees and, we are told, with various labour difficulties, this alleged local agreement or understanding is nowhere to be found in writing. We are told by Mr Farrell, who was indeed a convenor - he tells us - at this factory until 1984, that the suggestion that such an agreement operated for 20 years or more is quite wrong. He would have known of it, he says; he did not know of it.

Well that is all rather by the way. What we are mostly concerned with is this: when this case began it was, as we say, closely coupled with the case of Mr Walpole and on behalf of Mr Walpole, industrial relations consultants wrote to the personnel manager at Vauxhall Motors, this same personnel manager, or the person in the same position as Mr McDonough, on 31 March 1992. They wrote:

"Re:- Mr Walpole

We would be most grateful if you could advise us as to the following:

1 What is the date of dismissal.

2 What (if different from 1) is the effective date of termination.

3" [They ask what money has been paid to their client].

The reply is written not by the personnel manager but by Vauxhall's own Solicitor (concerning Mr Walpole).

"Sirs

Thank you for your letter... I am sorry not to have replied sooner but have only just been able to get the necessary information."

This is three weeks later so undoubtedly Mr McCrum, the Solicitor, has at any rate endeavoured to put himself in possession of the necessary facts. He says as follows:

"1 He was dismissed on 10 February 1992.

2 The effective date of termination was 9 March 1992, which marked the end of the appeals process.

3 He was paid a net sum of £943.52 on 13 March 1992"

Shortly thereafter (in a letter at page 73) Richard C Hall & Partners, the consultants, wrote again on behalf of both men and twice in this letter they treat the date 9 March 1992 as the effective date of termination, as they had been told, and asked for figures which could be given about what they would have earned had they had their full notice during that period and that information was duly supplied and there was no apology by the company, by Mr McCrum saying "I am sorry, you have got the date wrong, I have made a mistake, the effective date of termination was in February, not in March".

It did not stop there because, as I have said, the IT1 was presented by both these men - at different times it is right to recall - Mr Walpole's was undoubtedly, on any view, within time. So we look at the IT1 and that complained of unfair dismissal and at page 34 of our bundle is the IT3. What was said in the IT3, the Notice of Appearance by the Respondent, was this, in answer to the question "are the dates of employment given by the applicant correct" (and I should really have started by saying that the dates of employment given by Mr Newton were began 5 October 1970, ended 9 March 1992) the answer given by the employers to that question was "Yes, those are the correct dates."

In giving their answer, their case (on page 35) the employers wrote:

"He was finally dismissed on 9 March 1992 for again refusing to carry out his work at the agreed speed, his refusal again being treated as gross misconduct in accordance with the Employee Agreement. The Respondent therefore acted reasonably in treating the Applicant's conduct as a ground for summary dismissal."

So that is what is said by the employers. The rest is silence because for four years Mr Newton was engaged in County Court litigation.

Then we come to May 1996 when both Applicants attended, expecting their cases to be tried and there, without any warning, Mr Gorton (for the employers) said "there is this preliminary point. We say that the effective date of termination was in February and we are going to ask the Tribunal to try that as a preliminary point". That was put to the Tribunal quite openly and fairly. The Tribunal then said they could not try both cases in view of the fact that the Respondents were not putting forward the same case in respect of both Applicants and they adjourned the case, and it came to be tried in due course by the Industrial Tribunal chaired by Mr Coventry on 9 and 11 September.

Now, we look to see what was said about these earlier, quite clear statements by the employer - and not by some office boy or secretary or somebody of that sort but by a Solicitor on their behalf. In the legal documents they had filed how was it they came to make this mistake, as it was now said to be, with regard to date? Mr Gorton quite rightly pointed out to the Tribunal and to us that this was a matter which went to jurisdiction; he was therefore entitled to mention it to the Tribunal if not actively to canvas it. The Tribunal quite rightly said "we want to look into it". They were right to do so. However late it is raised, if a jurisdiction point is raised the Tribunal must look into it.

But the starting point surely should have been not the facts as explained to them then, with the evidence which they heard, but what had happened earlier, in 1992. Here was the company saying, with the authority of its Solicitor, that this was a true statement, that the EDT, the effective date, was March of that year. If that repeated mistake, which was not put right for more than four years, was not investigated, how could the Tribunal be satisfied with the evidence which they did hear? That evidence was very arresting. Mr McDonough said, "there was this local agreement and that explains this payment, everybody knew about it". That was the evidence, apparently; everybody knew about it, including Mr Newton who, if he were honest about it, would admit it. That was the basis on which he was paid until March; that his position would, in effect, be secured by this payment - which could hardly be called payment of wages in the circumstances - it was, in effect, an attempt to preserve the status quo without prejudice, so to speak, pending the final decision on the appeal.

If that was universally known how does it come about that it was not known to the Solicitor of the firm who made enquiries and took three weeks before writing his letter? How was it not known when - presumably with the assistance of that Solicitor, if it was required - the IT3 was put in? How was it that four years elapsed before the matter was raised and it was acknowledged that a mistake had been made? These were points which cried out for investigation and, indeed, it appears that they were made as vigorously as one might expect by Mr Farrell. Not a word about them. The Tribunal simply records that it accepted the evidence of Mr McDonough on this point and it had, by a majority, reached the conclusion which it did.

It seems to us that a decision which does not deal with what happened in 1992 and the explanations given for it is wholly inadequate in the circumstances. Surely if (as appears) the Respondents played an active part in this inquiry of the Industrial Tribunal, and were allowed to do so - to go back on what they had said, if they were to make this point - surely the least that could be looked for would be a statement by the Solicitor setting out exactly how he came to make this mistake and persist in it and how exactly it was that a matter for which apparently he was accepting responsibility went on four years without this being put right? How was it that a matter which was known to everybody was not known to the Solicitor even after he had made enquiries? What were those enquiries? Who was it who misinformed him on this topic? If privilege was going to be claimed in the circumstances that would be a serious matter.

These were matters which one would expect to see explained in any court or tribunal. If such an extraordinary mistake had been made by the Solicitor one would expect to see him explain it and one would expect an explanation by the witnesses if it was said, by Mr McDonough, "everybody knew this":- what is the explanation for the fact that it has not filtered through to the Solicitor who acts, presumably, regularly for the company, being the "in house" Solicitor? Now none of this was done and the Tribunal did not, apparently, think it necessary to inquire into these matters. It does seem a most curious oversight to us. Certainly, speaking for myself, if I had been sitting in court in the ordinary way I should have expected a full account from the Solicitor and an offer by him to give evidence if the tribunal or court wished to hear him give evidence and be cross-examined on this subject. One would naturally hope that if a Solicitor of the Supreme Court says that he has made a mistake and explains how he makes a mistake it will be possible to accept that without more and then pursue inquiries in accordance with the statement of the Solicitor about how he made that mistake. But, as I say, it does not stop there. It is not merely a case of saying "the Solicitor has been under a considerable misapprehension," as Mr Gorton put it.

It is a misapprehension in a matter where, the Tribunal was told, "everybody" knew about this informal but important agreement and yet the Solicitor did not. That, it seems to us, is what takes this case beyond the ordinary case of a mistake which may have to be explained. It is a matter which cried out to be looked in to. Of course it might well have been that the Tribunal, having looked into it, would have found that it was, for example - I am simply speculating - a mistake by a Solicitor who was mostly concerned with the commercial work of the firm, that the enquiries he had made were of two or three of the few people who would not have known of this agreement, that it was generally acknowledged by those people and by Mr McCrum that since then they had become well acquainted with the agreement and had realised their mistake, that Mr McCrum had taken no steps to bring it forward earlier because (for example) he had thought that the matter, in effect, was dying slowly or had died through sheer inanition and lapse of time. That may be the explanation. We are not suggesting for one moment that the Tribunal would necessarily have come to a different conclusion.

What we are satisfied about in our own minds is that this Decision and the Extended Reasons are an account of the matter which does not deal with an important matter which the Tribunal should have dealt with to the best of their ability. In the absence of a clear explanation, and what followed from that clear explanation, clear evidence about that, it might well have been that the Tribunal would have been driven to the inference that what was said and persisted in by the company in 1992 was good enough, as an admission, and that in the absence of a clear explanation that would be conclusive. They might not have been driven to that inference. It was entirely a matter for them but one would have expected them to deal with it. They have not dealt with it and therefore, in our view, Mr Newton, to use colloquial language, has not been told adequately why he lost. An important matter is missing from this decision. In those circumstances we are all of the opinion that although it may very well be that this very stale matter is going to yield nothing of interest or use but is simply going to lead to further expense we cannot allow the decision to stand. We think we must send it back to a Tribunal differently composed so that they consider the question of time anew and consider what was the true, effective date of termination. In those circumstances we have nothing further to say.

On an application for leave to appeal:

You must seek leave from the Court of Appeal, Mr Gorton, we are not prepared to give leave for appeal.