MR R K SNELL v ST PIERS LINGFIELD [1999] UKEAT 898_99_0112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 898_99_0112Case No Appeal No. EAT/898/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R K SNELLAPPELLANTST PIERS LINGFIELDRESPONDENT
Before
Mr Justice LindsayDate 1 December 1999
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE LINDSAY (PRESIDENT) : We have before us as a preliminary appeal the appeal of Mr Richard Snell in the matter Snell against St Piers Lingfield. It is now 8 minutes to 12 noon and no one has appeared on either side. There are no indications that anyone has been delayed who had hoped to be here and so, I think, we have to take it that it is a case in which no one is to address us. We give judgment, therefore, without having the advantage of having heard any argument. The history of the matter is that on 25 August 1998 Mr Snell lodged an IT1 claiming "Unfair Dismissal, Breach of S.188 of the Trade Union Law Reform (Consolidation) Act, Breach of contract, S.13 ERA and" [rather oddly] "If redundancy?". It was his then-asserted case that his employment had ended on 31 May 1998. That is what appears in box 4 of his IT1 and it is also what he asserts in details of complaint where he said:
"1. … The respondent having failed in that in the case of the applicant terminated the employment contract on 11 May 1998 effective on 31 May 1998."
[2]On 23 September 1998 the Respondent's IT3 claimed that Mr Snell had resigned and had done so after his IT1 had been lodged. At this point we need to have in mind the time bar provision of the Employment Rights Act 1996. Section 111 (2) says:
"(2) Subject to subsection (3), an employment 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, 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."
[3]On 25 September 1998 the Respondent, St Piers Lingfield, raised a request for Further and Better Particulars and on 25 November 1998 there was a Directions Hearing and apparently leave was given, granting to Mr Snell the ability to add a complaint that he had been unfairly dismissed on 3 September 1998. Particulars were required to be given within 14 days. There was already an existing request for Further and Better Particulars of the case as it had earlier been, and those, too, were to be supplied within 14 days.[4]There is nothing in the papers before us to suggest that Mr Snell's newly proposed claim for unfair dismissal as at 3 September 1998 was already framed in some form of words, still less that it was in a form of words laid before the Tribunal at the Directions hearing.[5]We do not have the Order of 25 November 1998. We should have it, though we have not. It does seem to us a bizarre procedure - giving leave to add to an IT1 of August 1998 an allegation of unfair dismissal as at September 1998 - but that is what appears to have been done. But a grant of leave to amend is one thing, receipt of the actual amendment in a form of words is another matter.[6]It cannot, in our view, be that a complaint can be taken to be presented for the purposes of Section 111 (2) upon the mere giving of leave to amend. Of course, sometimes leave is given and the amendment is never made. Particularly may that be so where, as here, no formula of words seems to have been laid before the Tribunal at the time leave was granted and, moreover, where there was an Order for particularisation within a specified period. That was the position as at November 1998.[7]On 20 January 1999 the Respondent's Solicitors sought directions. On 9 March 1999 there was the hearing before the Tribunal. Presumably the result was given orally, because on 15 March 1999 Mr Snell sought a Review. On 8 April 1999 the employer's Solicitors resisted that Review and on 21 April that Review was refused.[8]It was not until 8 June 1999, quite a long gap, that the decision of the Employment Tribunal was sent to the parties and what it said was that:
"The unanimous decision of the Tribunal is that having regard to the effective date of termination on 3 September 1998 of the Applicant's employment and the time limit contained in section 111 (2) of the Employment Rights Act 1996 (three months), a Tribunal does not have jurisdiction to consider the Applicant's complaint that such dismissal was unfair."
[9]The Tribunal described the new form of complaint that had been put in front of it. They say at their paragraph 3:
"3. Following an interlocutory hearing on 25 November 1998, at which all 10 Applicants were represented, this Applicant has submitted to the Tribunal a claim, amounting to a claim for unfair dismissal in the circumstances of constructive dismissal which became effective not on 31 May 1998 (as was the case of the original claim for unfair dismissal), but on 3 September 1998."
[10]The Tribunal in their Reasons mention what they call "a subsequent or amended application to the Tribunal dated 21 December 1998". They use that phrase in their paragraph 10 where they say:
"10. In his subsequent or amended application to the Tribunal dated 21 December 1998, the Applicant maintains that his employment continued under new employment terms and conditions commencing 1 June 1998. …"
And a little later:
"The Applicant has treated such situation as a breach of the terms of his contract of employment of trust and confidence, and according to his complaint by letter of 2 September 1998 the Applicant accepted the Respondent's alleged repudiatory conduct and resigned effective 3 September 1998."
[11]We have not seen that application of 21 December 1998. There is a letter of that date, which asks for an extension of time for particulars, but it cannot be regarded as an application, subsequent or amended.[12]Next, the Tribunal refers to a document of 23 December 1998. In their paragraph 12 they say:
"12. In his application for a Review, subsequent to the Hearing on 9 March 1999, the Applicant has raised with the Tribunal that this conclusion was made 'on the grounds of serious mishap, namely the Tribunal letter of 23 December 1998 was overlooked'. …"
We do not have that letter either.[13]The Tribunal then returns to what had actually happened on 25 November 1998 and that is in paragraph 13:
"13. As reflected in the Tribunal Chairman's Refusal of that application for a Review, and here noted for completeness, the Tribunal expressly took into account the effect of the decision made at the Interlocutory Hearing on 25 November 1998 that 'the applicant Snell has leave to amend his Application by adding a claim of unfair dismissal on 3 September 1998. This claim to be particularised within 14 days'. The Tribunal is satisfied that the Applicant had at that Interlocutory Hearing been given leave to amend his original claim for unfair dismissal: it is satisfied on the evidence that the Applicant had not then been granted leave to introduce what, on all the facts so far as they have been made available to the Tribunal and as has been decided above, was a wholly separate unfair dismissal claim. The Tribunal accepted on the evidence that at the Hearing on 25 November 1998 at the very least, the Applicant's representative failed to explain and set out these essential distinctions."
[14]We are bound to say that we find that rather confusing. A claim for unfair dismissal as at 3 September 1998 was bound to be a separate unfair dismissal claim when compared with one for unfair dismissal as at 31 May 1998, as embodied in an IT1 of 25 August 1998. However, when the Tribunal turned to consider if and when any new claim for unfair dismissal had in fact been presented, which seems to us the most important question, they proceeded upon surer ground, albeit then in the absence of any representation or appearance from Mr Snell. They concluded that the new claim was not presented until either 21 or 22 December 1998. They concluded that the time for particulars had been extended informally to 9 December 1998 but nothing, they held, justified delay until presentation on 22 December 1998. On that they say:
"17. In the event, the Applicant's complaint was presented on 22 December 1998. This is outside the three month period referred to above."
[15]Then the reasonable practicability of Mr Snell having acted earlier was considered; that is in paragraphs 18 and 19 of the Tribunal's decision, which read as follows:
"18. As a consequence, the Tribunal has then addressed within the terms of section 111 (2) (b) whether or not it was reasonably practicable for the Applicant to have presented his complaint by not later than 2 December 1998. 19 In a subsequent letter to the Tribunal, the Applicant's representative has sought to explain what were the reasons for the delay. He cites his own illness with flu, his heavy workload, and the fact that he was moving accommodation. The Tribunal has analysed each of these. It rejects each of them. None satisfies the Tribunal that it was not reasonably practicable for the complaint to have been presented at the latest by 9 December 1998."
And hence, of course, there was no jurisdiction to hear the case.[16]We have considered whether we ought to adjourn in order to obtain copies of the Order of 25 November 1998, the application of 21 December 1998 and the letter of 23 December 1998. However, in the face of a clear finding by the Tribunal that there was no presentation until 21 or 22 December 1998 and no reason to delay after 9 December 1998, we cannot see that a sight of the documents would lead to any possible change in terms of our being able to detect any error of law.[17]We find no error of law even at this preliminary stage. Accordingly, we dismiss the appeal. Whether Mr Snell has any remedy against the representative acting for him, Mr Peter O'Brien, is not a matter for us, but for Mr Snell, to consider.