MR I PATCHETT v GREENWOOD INTERIORS [2000] UKEAT 634_00_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 634_00_1210Case No Appeal No. EAT/634/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR I PATCHETTAPPELLANTGREENWOOD INTERIORSRESPONDENT
Before
Mr Justice LindsayDate 12 October 2000
[1]APPEARANCES For the Appellant MR M J TUTT (Representative) Dewsbury Citizens Advice Bureau Unit 5 & 6 Empire House Wakefield Old Road Dewsbury WF12 8DJ MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a preliminary hearing the appeal of Mr I Patchett in the matter Patchett –v- Greenwood Interiors . On 14 January of this year the Employment Tribunal received a hard copy of an IT1 from Mr Patchett; it might be that on 8 January it had earlier received a fax copy. Mr Patchett's IT1 claimed a redundancy payment.[2]The date specified as the date of the event complained of was given as 21 May 1999, although exactly what had happened on that day was not entirely clear from the IT1 itself. Greenwood Interiors put in an IT3 which claimed that Mr Patchett had been dismissed on 21 May 1999 by reason of a fire and fire damage at the factory.[3]The case came before the Employment Tribunal at Leeds under the Chairman alone, Mr Simpson, on 24 March of this year on a preliminary issue raised under section 164 of the Employment Rights Act 1996 which I will need to turn up. Section 164(1) - and I will leave out 1(a) and (b) and (d) as irrelevant for immediate purposes, provides:- "(1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date …. (c) a question as to the employee's right to, or the amount of, the payment has been referred to an [employment tribunal]"[4]As the IT1 was not presented until 14 January of this year and as the relevant date appeared to be 21 May 1999, that six months referred to would have expired before the lodging of the IT1. However, one then goes on to 164(2):
"(2) An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee … (b) refers to an [employment tribunal] a question as to his right to, or the amount of, the payment"
So that the position is that something results if, within 12 months of the relevant date, the employee does so refer a question. Mr Patchett's IT1 was within a year from 21 May 1999, as it was on 14 January, or even 8 January, of this year.[5]What is it, then, that results if section 164(2)(b) is satisfied? Well, the foot of 164(2) goes on:
"and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment."
So the Employment Tribunal should have asked itself was it just and equitable that the employee should receive a redundancy payment.[6]The next question arises: what is the Employment Tribunal to take into account in determining that question, and that is answered by 164(3):
"(3) In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an [employment tribunal] shall have regard to: (a) the reasons shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1). and (b) all the other relevant circumstances."
[7]So the failure to act in time, and the reason for the failure to act in time, is not the only consideration; all other relevant circumstances have to be looked at - see in particular, on this point, Harvey Volume 1 paragraph 2137. 01 where it says:- " The relevant question for the Employment Tribunal includes whether the Applicant is, in a broader sense, deserving of a redundancy payment"[8]It is in our view arguable, (and, of course, at this stage we are not concerned with anything beyond arguability) that here the Tribunal never examined that broader sense. In paragraph 5 of his determination, the Chairman said:
"I have to consider whether it is just and equitable for me " it should read "to extend the time limit", and a little later, "
By reason of the Applicant's explanation for the delay, I do not consider that it would be just and equitable to extend the time limit and accordingly I have no jurisdiction to hear the complaint"[9]But he was not, under the statute, to enquire whether it was just and equitable to extend the time limit, but whether it was just and equitable that the Applicant should receive a redundancy payment, as we have seen from section 164. It is thus in our view arguable that the Chairman asked himself the wrong question, asking more the sort of question that would have been appropriate in relation to the time bar provisions that one finds in the unfair dismissal, sex discrimination or race discrimination legislation.[10]Thus in our view there is something here reasonably arguable, and accordingly we permit it to go to a full hearing. Mr Tutt ….. A request will go out to the Chairman, Mr Simpson, to provide the whole of the notes of the evidence of Mr Patchett.