MR C VYTELINGUM v CAMDEN AND ISLINGTON COMMUNITY HEALTH NHS TRUST [2000] UKEAT 1455_98_0512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1455_98_0512Case No Appeal No. EAT/1455/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C VYTELINGUMAPPELLANTCAMDEN AND ISLINGTON COMMUNITY HEALTH NHS TRUSTRESPONDENT
Before
His Honour Judge Peter Clark Dr D GrievesDate 5 December 2000
[1]APPEARANCES For the Appellant Mr S Olanrewaju 94 Newington Green Road London N1 4RG For the Respondent MR MARTIN WARD (of Counsel) Instructed by: Messrs Beachcroft Stanleys Solicitors 20 Furnival Street London EC4A 1BN JUDGE PETER CLARK This is an appeal by the Applicant before the London North Employment Tribunal, chaired by Mrs M H Don, against that Tribunal's decision with extended reasons promulgated on 3 September 1998, following a hearing held on 5 August 1998, dismissing all his complaints against his former employer, the Respondent NHS Trust. Background[2]The Appellant was employed by the Respondent, or its predecessor from 28 March 1988 until his dismissal on grounds of alleged misconduct on 16 October 1996. On dismissal he received 4 weeks pay in lieu of notice and 11 days holiday pay.[3]On 15 January he presented an Originating Application to the Employment Tribunal complaining of unfair dismissal. The body of the complaint also raised allegations of discrimination and victimisation contrary to the Race Relations Act 1976 . At that stage he was represented by an official of his trade union, the Transport and General Workers Union. The claim was resisted. On 17 June 1997 the Appellant himself wrote to the Tribunal giving further particulars of his Originating Application, setting out his case on race discrimination and victimisation and in addition contended that he was dismissed for his trade union activities.[4]On 9 February 1998 he wrote to the Tribunal listing a number of claims. In particular:(a) Insufficient notice pay, and(b) Outstanding pay awards for the years 1995/96 and 1996/97.[5]On 9 April 1998 the Hornsey Advice Bureau wrote to the Tribunal on the Appellant's behalf, applying for permission to amend the Originating Application and enclosing a copy of the letter of 9 February. On 1 May a Duty Chairman granted the permission sought.[6]When the matter came on for hearing before Mrs Don's Tribunal on 5 August 1998 the first order of business, we see from the note taken by the Respondent's solicitor and Counsel Mr Ward respectively, was whether the Appellant could raise certain claims outlined by him in a letter to the Tribunal dated 28 April 1998, and written by his then new representative Samuel Olanrewaju. We have now seen a copy of that letter, which is not referred to in the Duty Chairman's letter to the parties of 1 May 1998. One of the claims, which was new, related to outstanding holiday pay.[7]It seems that the Tribunal went through the claims there listed and accepted the Respondent's submission that they were out of time, save for the original complaint of unfair dismissal and the complaints of dismissal by reason of trade union activities, race discrimination and victimisation. In the event the Tribunal adjudicated only on those claims, it seems to us, they regarded as being in time. In the event all claims were dismissed.[8]In the course of their reasons the Tribunal said this, at paragraph 29:
"According to the terms and conditions of employment, which he states that he has never received but which was referred to us, undated (exhibit R2), Mr Vytelingum is entitled to eight weeks' wages in lieu of notice. We cannot understand why he was only given four weeks wages in lieu of notice and we trust that the Respondent will provide him with the suitable extra four weeks' wages in lieu of notice. This is his entitlement."
And at paragraph 37:
"We note that Mr Vytelingum may be entitled to unpaid holiday pay and he may also be entitled to unpaid increments. We should apply to the payroll department for these sums that are allegedly owing to him and we trust that the Respondent will deal with any valid claim sympathetically."
[9]Against the Tribunal's decision the Appellant appealed by a Notice dated 9 October 1998. The appeal came on for a preliminary hearing before a division on which I sat on 28 April 1999. The position was then unclear to us, on an ex-parte hearing, and we adjourned the preliminary hearing, identifying two potential arguable points of law, namely a failure by the Tribunal to adjudicate on the claims mentioned, first at paragraph 29 and then at paragraph 37 of their reasons. We sought the assistance of the Chairman, who wrote to the EAT on 18 June 1999 and directed that the Appellant lodged amended grounds of appeal identifying the two points mentioned in our judgment. That was done on 17 June 1999.[10]On 7 June the Respondent's solicitors tendered a cheque for £682.37 in respect of four weeks outstanding notice pay. That cheque was returned to the Respondent's solicitors by Mr Olanrewaju.[11]I directed that the preliminary hearing be restored for hearing. That hearing took place on 14 October 1999. On that occasion we permitted both points mentioned earlier to proceed to a full hearing with some reluctance, indicating that the outstanding claims for notice pay, holiday pay and in respect of outstanding pay award monies ought to be capable of settlement.[12]On 17 December 1999 the Respondent's solicitors wrote an open letter to the Appellant's representative offering a total of £954.59 in respect of the outstanding claims made up as follows:(i) Additional pay in lieu of notice £710.02(ii) Outstanding holiday pay £142.00(iii) Outstanding pay award for the year April 1996 to March 1997 £102.57 In that letter the Respondent gave notice of a cost application under Rule 34 if the offer was refused and the matter proceeded.[13]The offer was not accepted and on 2 December 1999 the Appellant's representative wrote to the EAT asking for the matter to be listed for a full hearing. I gave that direction by letter to the parties dated 23 December 1999, in which I also gave a costs warning in the event that the Appellant failed to recover more than had been offered in the Respondent's letter of 17 November.[14]Further procedural steps then took place during the course of this year and now the matter finally comes before us for the full appeal hearing. The Appeal[15]Mr Olenrewaju, on behalf of the Appellant, submits that in determining that all the outstanding claims were out of time the Don Tribunal was setting itself up as an appeal court from the Duty Chairman's Order of 1 May 1998 and further that permission had been granted in a subsequent Tribunal letter for the amendments contained in his letter of 28 April 1998. As to the latter point, no such letter has been produced to us and, we accept on Mr Ward's account, he having appeared below, none was produced to the Don Tribunal. That also fits in with Mrs Don's comments to EAT.[16]As to the first point, an Employment Tribunal has power to reconsider and vary or revoke an earlier Interlocutory Order of a Chairman, particularly one made ex-parte. That is what, it seems to us, happened in respect of the Duty Chairman's Order of 1 May. At the outset of the hearing on 5 August Mr Ward, on behalf of the Respondent, made application for the Duty Chairman's Order, made ex-parte, to be set aside. In effect that is what the Don Tribunal did.[17]It follows that the real question for us is whether it was permissible for the Don Tribunal to rule the outstanding claims out of time as appears from paragraph 9 of the Tribunal's reasons. We think that it was. There was no error of law in their approach, bearing in mind that the application for permission to amend was first made on 9 February 1998, and a further application made by letter of 28 April 1998, in circumstances where the Originating Application was first presented on 15 January 1997.[18]In these circumstances it is quite understandable that at paragraphs 29 and 37 of their reasons the Don Tribunal did not adjudicate on claims which they had ruled out of time, but did give indications which might enable the parties to reach agreement on three outstanding matters, so as to save the cost and inconvenience of those claims being pursued through the civil courts.[19]In fact no agreement has been reached between the parties. This morning, Mr Olanrewaju tells us that the Appellant's total claim in respect of the three outstanding matters is £2,049.30. the Respondents sticks to their total figure of £954.59, as indicated in their earlier letter of 17 December 1999.[20]In these circumstances we have concluded that no error of law was made out in this appeal, and consequently it must be dismissed. …but we do not think this is a proper case to make an award for costs, and there will be no Order as to costs. But can I on behalf of, I am sure my colleagues and myself, make this earnest plea to all of you, to get your heads together and settle these outstanding matters. It cannot be that difficult, anyway that is the end of our part in it. Thank you all very much.