Roberts v. First York [1999] UKEAT 283_99_1203

EAT
Roberts v. First York
[1999] UKEAT 283_99_1203 · 1999-03-12

JUDGE PETER CLARK :

The Appellant, Mr Roberts, was employed by Rider York Limited t/a First York as a bus driver. His period of continuous employment stretched from 31 March 77 until his summary dismissal on 22 January 1999. Prior to his dismissal he was a member of the Transport and General Workers Union, the recognised union, and was the Trade Union branch secretary and senior lay official at First York.Following his dismissal he presented an Originating Application to the Employment Tribunal on 27 January 1999 on the standard form IT1. In box 1 he described his complaint as including "Interim Relief/Unfair Dismissal for Trade Union activities and membership". He added further complaints with which we are not concerned in this appeal. He nominated as his representative, Mr Long, a full time official of the Union.Box 5 of the form, in which the Applicant is asked to give the name and address of the employer, other organisation or person against whom the complaint is being brought is sub-divided into three boxes. The first box is headed "Name of the employer, organisation or person". In that box he wrote Mr B Asquith, who was the general manager of First York. The second box is headed "address". There, the Appellant wrote "First York, 1 James Street, York" and gave the postcode. The third box is immaterial.In the particulars of his complaint he alleged that it was his actions as a Union steward there set out, that directly lead to his being summarily dismissed. He described himself as Trade Union Branch Secretary and Senior Lay Union official at First York.Accompanying the form IT1 was a certificate signed by Mr Long and complying with s.161(3) of the Trade Union and Labour Relations Consolidation Act 1992 , which was headed "Between: Mr Dennis Roberts, Applicant and First York, Respondents" further there was a certificate of the Transport and General Workers Union's Independence and an authorisation for Mr Long to act on behalf of the Union. S.161 provides that where an application for interim relief in a case alleging unfair dismissal on grounds related to Union membership or activities contrary to s.152(1) of the Act is made, the following requirements must be fulfilled:

(1) the application must be made within 7 days of dismissal

(2) the certificates mentioned must be lodged within the 7 day period.The interim relief application came on for hearing before a Chairman, Mr A J Simpson, sitting alone at Leeds on 17 February 1999. By a decision with Extended Reasons dated 18 February the Chairman held that he had no jurisdiction to hear the application for interim relief. Further, by consent, he ordered that the name of the Respondent be amended to Rider York Limited t/a First York and that this complaint be consolidated with another complaint brought by the Appellant against the Respondent.It is against the decision to dismiss the interim relief application that this appeal is brought.The Chairman found that the Originating Application seeking interim relief was presented on 27 January and was accompanied by the relevant s.161 certificate. However, he took a point of his own motion, then taken up on behalf of the Respondent by Mr Graham, that the Originating Application was defective in that it named Mr Asquith as employer in Box 5, whereas he was not the employer, but the manager of the true employer, Rider York Ltd t/a First York.He concluded that the complaint was defective; that that defect should not be corrected by way of amendment and that the complaint was not properly presented within 7 days as required by the strict provisions of s.161. Accordingly, he held that he had no power to grant the interim relief sought and dismissed that application without consideration of its merits.The principal question in the appeal is whether the Appellant presented a valid complaint for the purposes of Schedule 1, paragraph 1(1) to the Employment Tribunal Constitution etc. Regulations 1993 .Paragraph 1(1) provides:
"1(1) Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out - (a) the name and address of the applicant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent; (b) the names and addresses of the person or persons against whom relief is sought; and (c) the grounds, with particulars thereof, on which relief is sought."
In Dodd v British Telecom Plc [1988] IRLR 16, Scott J said this at paragraph 15:
"There is clear authority that although the requirement that the originating application must be in writing is mandatory, and must be complied with, the requirements of sub-paragraphs a), b) and c) are not mandatory but are directory only. That authority is to be found in Burns International Security Services (UK) Ltd v Butt [1983] IRLR 438. That was a decision of the Employment Appeal Tribunal presided over by Mr Justice Neill. At the bottom of p.439, Mr Justice Neill gave guidance as to the approach to the form of originating applications. He said this:
"It seems to us that in the field of Industrial Relations where application forms are frequently completed by individual employees without professional assistance, a technical approach is particularly inappropriate."
At p.440 he said this:
"It was pointed out in Cocking v Sandhurst [[1974] ICR 650] that the rules did not require that the complaint as presented should be free of all defects, or should be in the form in which it finally came before the Tribunal for the adjudication. The purpose of the rules is to ensure that the parties know the nature of the respective cases which are made against them. The present rules give considerable powers to the Industrial Tribunal to control the conduct of the proceedings both before and at the hearing. We are satisfied that the originating application which the applicant presented in December 1981 constituted a complaint that he had been unfairly dismissed, and was presented within the statutory time limit. The Industrial Tribunal had jurisdiction under s.67 of the Act of 1978. In our view, the requirements contained in Rule 1(1) save for the requirements in writing are not imperative, but directory."

Mr Justice Scott went on to say at paragraph 16:

".... The written application as presented must contain sufficient to identify who is making it and against whom it is made, and must contain sufficient to show what sort of complaint it is. That at the least must be present. We think that an application whose contents did not comply with those broad minimum requirements would not be capable of being described as an originating application at all. ...."
Applying that approach in this case it is absolutely clear to us that the Originating Application and accompanying documents sufficiently identified First York as the employer against whom the Appellant sought relief. Mr Graham candidly accepts that his clients were under no illusions as to who was the real Respondent. It was not Mr Asquith, the General Manager of the company, but the company, Rider York Ltd t/a First York. The company attended the hearing ready to contest the interim relief application by evidence.In our judgment, the Originating Application complied with the minimum requirements of paragraph 1(1) to the Schedule, as explained in the cases. First York, the trading name of the employer, was mentioned in box 5 of the Originating Application; in the particulars of that complaint and in the certificate signed by Mr Long.In these circumstances we have no hesitation in upholding Miss Moor's submission that the Chairman fell into error in holding that no application had been presented within 7 days of dismissal. It had and he ought to have gone onto consider the interim relief application on its merits, having allowed an amendment to delete Mr Asquith and to substitute the proper name of the Respondent, as he did for the purposes of the substantive application.We shall allow the appeal and direct that the interim relief application proceed to a hearing on its merits before a different Tribunal consisting of a Chairman sitting with lay members. For that purpose the order made as to the amendment of the Originating Application and the order for consolidation of the Appellant's complaints stand.Following delivery of our judgment in this case, Miss Moor on behalf of the Appellant made an application for costs under Rule 34 of the EAT Rules.The rule provides by Rule 34(1):
"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bring or conducting the proceedings the Tribunal may order the party at fault to pay any other part the whole or such part as it thinks fit of the costs of expenses incurred by that other party in connection with the proceedings."
The basis of Miss Moor's submission, is that here it was so patently obvious that this appeal would succeed, that the Respondent ought to have conceded the appeal. In these circumstances, bearing in mind paragraph 13(4) of the Practice Direction, it would have been necessary for the Appellant or representative to attend before the Appeal Tribunal, but that would have been a less expensive exercise than instructing Counsel to appear at a contested hearing as was today's.We accept that the structure of Rule 34(1) does not preclude, in principle, an order for cost being made against a Respondent to an appeal, but her application is limited to the words, "unreasonable conduct in conducting the proceedings on the part of the Respondent".The question arises as to whether it is in this case, unreasonable conduct on the part of the Respondent not to concede the appeal. We understood Miss Moor to submit that during the course of argument before us, Mr Graham had conceded that there was here a valid Originating Application. We certainly did not understand him to make that concession; he contended throughout that this was an invalid application and sought to uphold the Chairman's decision on that basis.In these circumstances, we think that the Respondent was entitled to resist the appeal to a concluded hearing. We also bear in mind that whereas the Appellant's argument has been put clearly and ably before us today by Miss Moor, before the Employment Tribunal, it would appear that the Appellant's representative took at best a neutral stance rather than to argue the point clearly and indeed to press for an order that he be granted leave to amend the Originating Application and overcome the difficulty which the Chairman found existed. In these circumstances we do not think it is a proper case in which to make any order for costs.