Danquah v Sutcliffe Catering (UK) Ltd [1999] UKEAT 1444_98_2004

EAT

Danquah v Sutcliffe Catering (UK) Ltd

[1999] UKEAT 1444_98_2004 · 1999-04-20

MR JUSTICE LINDSAY: In this matter we have before us a preliminary hearing of an appeal by Mrs G F Danquah in the matter Danquah against Sutcliffe Catering (UK) Limited.

We will first deal with the practical procedural points:

On the 15 April Mr Robert Glah of Equity Barristers Chambers sent a fax to the EAT asking that this case be adjourned for a new date to be fixed on the ground that the date clashed with another Court appearance of Counsel in the matter. He added that the solicitor acting for the Respondent had no objection to an adjournment. It is not usual for Counsel's convenience to be, on its own, sufficient grounds for an adjournment and so it should be no surprise that on 16 April, the EAT replied (addressing "Mr R K Glad" rather than "Mr R K Glah) as follows:-

Your letter was referred to the Deputy Registrar who directed that the matter remains in the list for hearing on 20 April."

Today a fax has been received from Simon, Sarah & Company, Legal Consultants, who have been acting for Mrs Danquah which says this:-

"If our representative is not in court for the hearing for whatever reason, then we respectfully request a postponement. We regret the inconvenience."

That suggests, by the use of that word "if", that they are not entirely sure whether or not there will be a representative in court for the hearing.

We have heard nothing to suggest that any representative is on his way or her way and have elected to proceed with the matter. In choosing to proceed with the matter we think it is particularly desirable that we should give a judgment because this matter seems to us to represent some misunderstanding or confusion not helped by the form of the headings which were used when the Employment Tribunal dealt with the matter.

So far as concerns the background, Mrs Danquah worked for Sutcliffe Catering Limited. They had taken over the contract of her employment. Previously she had worked for Glaxo. Glaxo had a plan under which its employees acquired shares and also acquired an option to sell the shares to the trustees of the plan.

On 31 December 1997 Mrs Danquah's contract of employment with Sutcliffe expired. On 25 March 1998, Mrs Danquah lodged her IT1. It was given number 1278. It claimed what she called "wrong" dismissal as at 31 December 1997. For all that such dismissal was claimed to be "wrong", which was a potentially confusing title, the IT1 makes it clear that it was, in fact, a claim for unfair dismissal of the constructive dismissal type. When she filled in Box 10, which is headed "unfair dismissal applicants only", Mrs Danquah did put a tick in the box indicating that she wished to have compensation. She recognised herself as having made an unfair dismissal claim and the Employment Tribunal itself recognised that because in their paragraph 2 they say an "unfair dismissal application had been presented on 25 March 1998." So that is Mrs Danquah's first IT1, number 1278.

On 7 April of 1998, given the number 1491, Mrs Danquah put in another IT1 complaint describing the complaint as a dispute over the purchase of shares. It says "2. Dispute over purchase of 676 shares granted to Applicant on option certificate number..... and gives a date. Those shares, she claimed, had been redeemed at £5.33 per share instead of at whatever higher price had been paid to others. It is to be noted that it is far from clear that the Respondent to the share complaint should have been Sutcliffe's rather than Glaxo or trustees of Glaxo's scheme. At best it could only have been a claim in contract and it may have been that even if it was a claim in contract, it was not a claim in a contract against anyone who is Mrs Danquah's employee. At all events, it was difficult to see that it was a complaint in relation to a contract between Sutcliffe's and Mrs Danquah as their employee.

Let us assume, however, in Mrs Danquah's favour, that there was indeed here a complaint in number 1491 in respect of an employee's contractual claim. Then on 9 April 1998 there was an IT3. It seems to address only the earlier IT1, the 1278 IT1, which put in issue unfair dismissal. We can see no IT3 as to the 1491 share complaint. Then the matter moved forward. On 16 June 1998 there was the ET hearing and on 1 July the Employment Tribunal, by way of summary reasons promulgated its decision. Although, on the face of the paper, both headings are given, 1491 and 1278, the reasoning addresses only the reasoning necessary in the share complaint case. It was held was that the share complaint was out of time under Article 7 of the Industrial Tribunal Extension of Jurisdiction England and Wales Order 1994. It was held that it was impossible for the Employment Tribunal to hold that it had not been reasonably practicable for Mrs Danquah to have presented her complaint in time as to the share complaint, given that she had managed to present a complaint on 25 March 1998, the 1278 complaint, as to dismissal. So the Tribunal held that it had no jurisdiction to hear what they call "this claim", meaning, according to the logic of the reasoning, the share sale complaint.

On 8 September there was a Notice of Appeal. On 19 October 1998 the Employment Tribunal promulgated their Extended Reasons, but again, although the face of the front page gives both numbers 1491 and 1278, the logic of the reasoning is exactly as it had been in the summary decision and relates only to the contractual or share sale claim.

We must make it clear that the Employment Tribunal's decision does not bar Mrs Danquah from pursuing her IT1 for unfair dismissal, the 1278 complaint. Nor does it bar her proceeding in contract in the County Court. We must make it clear, equally, that we do not say that she should proceed with either of those. We have seen nothing to enable us to take an informed view one way or another on the subject and it is not for us to give advice or form a view on that. We must not be thought to be advising her to proceed in the County Court or necessarily actively to pursue her unfair dismissal claim. All we are saying is that the decision under appeal does not bar her claim 1278 for unfair dismissal and in no way stops her from proceeding in the County Court. However, so far as the decision under appeal does relate to the contractual claim, 1491, the share sale matter, it is, in our view, plainly correct. We have been able to discern no error of law in it. Moreover, contrary to the way in which the Notice of Appeal is framed, the Employment Tribunal did in terms address the question of whether they were satisfied that it had not been reasonably practicable for Mrs Danquah to present a contractual claim within 3 months of 31 December 1997. As she had managed to present the unfair dismissal claim within that period, their conclusion, which we will read out, seems to us impeccable. What they say in the latter part of their paragraph 7 is this:

"Accordingly we find that the Tribunal has no power to entertain this claim, which is out of time, and there are no grounds on which we can find it was not reasonably practicable for the complaint to be presented within the period of 3 months because the applicant had in fact presented her other claim within the time limit. There would be no logic in saying that it was not reasonably practicable for both to be presented at the same time and within the time limit. Accordingly the Tribunal has no power to hear this application."

We see no error in that and we dismiss the appeal, but make it clear that our decision relates only to the 1491 claim.