HOWLETT MARINE SERVICES LTD v K BOWLAM AND OTHERS [2000] UKEAT 876_99_0811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 876_99_0811Case No Appeal No. EAT/876/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HOWLETT MARINE SERVICES LTDAPPELLANTK BOWLAM AND OTHERSRESPONDENT
Before
Mr Justice LindsayDate 8 November 2000
[1]APPEARANCES For the Appellants GERARD CLARKE (of Counsel) Messrs Watson Burton Solicitors 20 Collingwood Street Newcastle-upon-Tyne NE99 1YQ For the Respondents For the Secretary of State for Education and Employment BRUCE CARR (of Counsel) Messrs Rowly Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE MISS INGRID SIMLER (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE LINDSAY (PRESIDENT) : This is the full hearing of the appeal of Howlett Marine Services Ltd in the matter Mr K Bolam and 62 others v Howlett Marine Services Ltd . It gives rise questions of construction as to protective awards, the protective period and, in particular, the time within which complaint may properly be presented under section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992 ['the 1992 Act']. We shall also have to touch briefly on the so-called Recoupment Provisions. The appellant, Howlett Marine, the erstwhile employer of all 63 respondents appears by Mr Gerrard Clarke. The 63 employees by Mr Carr. Because questions of construction of possibly wide application arise, the EAT at the preliminary hearing of this appeal ruled that the Secretary of State should be asked whether he wished to be joined; he did wish to be joined, and accordingly we have received argument also from Miss Simler on behalf of the Secretary of State for Trade. She has not entered the fray between the parties, but has been concerned as to the true construction of section192, in particular.[2]The question for us is as to the period during which an employee might be permitted to present a complaint to the Employment Tribunal as to his employer's failure to pay him his due under a protective award. It is a question on which the only authority even remotely in the area is, as all have agreed, not really close enough to be of any true assistance.[3]We first set out the bare bones of a chronology. Between 7th February 1997 and 21st or 23rd February 1997 the 63 employees were dismissed by reason of redundancy. Their union, the AEEU, applied under section 189 of the 1992 Act for a protective award to be made. There was a hearing of that application at the Employment Tribunal on 10th and 26th September 1997. On the last day of the hearing, on 26th, the Company orally indicated to the union, before the decision of the Employment Tribunal was given, that it would be likely to appeal if it lost. On 26th December 1997 the tribunal gave its decision and extended reasons. The Company had lost and protective awards were then made.[4]As it said that it would, the Company appealed to the Employment Appeal Tribunal, but on 23rd July 1998, in a judgment delivered orally that day, the Employment Appeal Tribunal dismissed the appeal. The Employment Appeal Tribunal made an order bearing the date 23rd July 1998 dismissing the appeal. (Precisely on what day a sealed order issued does not appear from our papers.) The transcript of the Employment Appeal Tribunal's judgment was sent to the parties in September 1998.[5]The employees were not paid for any part of the protective periods. On 6th October 1998 the employees presented IT1's complaining under section 192(1) and setting out briefly the history of the matter as they saw it. Their IT1 said:
"… The Applicants have since then not been paid by the Respondents. Each of the Applicants seeks an order that the Respondents should pay to them wages for the number of days as awarded by the Employment Tribunal."
[6]On 20th November 1998 the Company answered that with its IT3 and that said:
"The respondents have been making enquiries relevant to recoupment of benefits regarding the 64 applicants. To date a response has been received from the benefits agency in respect of two applicants only. The respondents have ceased trading and have no funds to pay the amounts ordered."
[7]At some point attention must have turned to the time within which complaints can be made under section 192(1) and as to whether the complaint that had been lodged on 6th October 1998 had been within or without time.[8]On 13th May 1999 there was a hearing at the Employment Tribunal at Newcastle-upon-Tyne under the chairmanship of Mr J Hunter which was concerned with the tribunal's jurisdiction to hear the complaints.[9]On 10th June 1999 the decision was sent to the parties. It was unanimous and it said:
"1 On a preliminary issue (a) it was not reasonably practicable for the applications to be submitted within the period set out in section 192(2)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992; (b) the applications were presented within a further period which the Tribunal considered to be reasonable; 2 the complaints of the applicants under section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well-founded; 3 the respondent shall pay to the applicants the sums shown in the Schedule to this decision."
There is no appeal as to those second and third parts as to the complaint being well-founded and, as to the amounts in question, they were not in issue. What is truly in issue then and before us are the first passages that are concerned with the time within which a complaint can properly be lodged. That decision, as I say, was sent to the parties on 10th June 1999 and on 21st July 1999 the Company lodged a Notice of Appeal.[10]It is best if we first look to the statutory background. Under the 1992 Act an obligation upon an employer to consult, in certain cases, about proposed dismissals for redundancy is created by section 188(1). The dismissals in question under section 188 may be some way off into the future but the discussions must begin (if, as here, the proposed dismissals concern between 20 and 99 people) at least 30 days before the first proposed dismissal (see section 188(1A)(b). If the provisions as to consultation are not complied with then complaint can be made to the Employment Tribunal under section 189(1) by four different classes of complainants who are there described. If the tribunal finds the complaint well-founded, it may make a "protective award" (section 189(2)). What is a protective award, when does it begin and how long does it last? Those are questions answered by sections 189(3) and (4), which provide as follows:
"(3) A protective award is an award in respect of one or more descriptions of employees- (a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and (b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period. (4) The protected period- (a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and (b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer's default in complying with any requirement of section 188; but shall not exceed 90 days …"
It must be noted that the protective award may antedate any dismissal. Section 189(3)(a) and (b) both include cases of dismissals that are still only proposed rather than factual. That is consistent with section 189(1) because that includes as possible complainants to the Employment Tribunal persons who have not yet been dismissed or may not even be proposed to be dismissed and it contemplates complaints which can be complete before any dismissal takes place, for example, where one has an employee-representative complaining that the election of the employee representative has been unfair or representatives of a trade union complaining that, although the union was recognised, it had not in fact been consulted.[11]As for the time within which a protective award may be sought, that is provided for in section 189(5) as follows:
"(5) An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the date on which the last of the dismissals to which the complaint relates takes effect, or (b) during the period of three months beginning with that date, or (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented during the period of three months, within such further period as it considers reasonable."
[12]So far, therefore, one can expect a protective order which orders the employer to pay remuneration for the protected period. This is amplified by section 190(1) and (2); they provide as follows: "(1) Where an employment tribunal has made a protective award, every employee of a description to which the award relates is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period. (2) The rate of remuneration payable is a week's pay for each week of the period; and remuneration in respect of a period less than one week shall be calculated by reducing proportionately the amount of a week's pay." and there are further computation provisions in section 190.[13]Subsection (2) of section 190 seems to contemplate the possibility of a series of pay days on which appropriate parts of the protective award are paid as time elapses. It is to be noted that section 190(1) says " is entitled", it is not " shall be entitled", it is " is entitled". It is a present entitlement even if in respect of a future period. That has the result that in general, so far as concerns any parts of the protected period as are already for the time-being past or are immediately present, there is, looking only at the statute, an immediate entitlement in the employee to payment on the making of the protective award by the Employment Tribunal (although, arguably, it may be that one has to allow some small period to elapse in order that the mechanical requirements of calculating payment and making it should be permitted).[14]We shall go on to see that in this area statute is not the only guide, but, for the moment, we shall continue to look at the matter as if only statute were relevant.[15]What is the position if that entitlement conferred by section 190(1) is not honoured? Then one goes to section 192(1):
"(1) An employee may present a complaint to an employment tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award."
In point of the language there used in section 192(1), it is essential that at the date when the complaint is presented to the Employment Tribunal, there shall have been a failure to pay under the protective award. There cannot, as it seems to us, be what is to be regarded in law as a failure to pay without there having been a legal obligation to pay and there is no legal obligation to pay until section 189(2) has provided a protective award has been made under section 189(2).[16]Subject to a qualification which we shall need to return to later when we have to look briefly at recoupment provisions, on the face of things so far, and looking only at the statute, one therefore cannot have a complaint presented under section 192(1) until whichever is the later of the date of the making of the protective award and the beginning of the protected period, or, if later, the first date for payment falling due within the protected period. Those dates appear to provide the earliest possible dates for the presentation of a complaint under section 192. But there is also provision for the latest possible date and for that one has to look at section 192(2):
"(2) An employment tribunal shall not entertain 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 day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it may consider reasonable."
It may be added that section 192(4) makes it plain that the only remedy for an infringement of his right to remuneration under a protective award that is open to an employee is complaint under section 192; there is no other way of enforcing it.[17]Section 192(2)(a) requires one to examine when the three months it speaks of begins – what is the day or the last of the days "in respect of which the complaint is made of failure to pay remuneration". It is common ground between the appellant and the respondents that on facts of this case, where the protective award was made well after the end of the protected period and where no payment at all was made in respect of any part of the protected period, that the section 192(2)(a) date (namely the day or, if the complaint relates to more than one day, the last of the days in respect of which the complaint is made of failure to pay remuneration) is here the last day of the protected period. There are in fact three protected periods in our case, each is applicable to some only of the 63 applicants, but the three protected periods between them cover all the 63 applicants. The three protected periods are 15 days from 7th February 1997, that is to say until 22nd February 1997, with the three months therefore running out on 21st May 1997; 30 days from 13th February 1997, expiring therefore on 15th March 1997, with the three months expiring on 14th June 1997; and 30 days from 21st February 1997, expiring on 23rd March 1997, with the three months under section 192(2)(a) running out on 22nd June 1997.[18]There is no provision in the Act itself (and we shall deal with a qualification arising under the recoupment provisions later) such that one can complain under section 192 even before there has been, at the date of presentation of the complaint, a failure in section 192(1). If a protective award is made well after the expiry of the protected period, the failure under section 192(1) will post-date the section 192(2)(a) expiry date.[19]Miss Simler for the Secretary of State argues that in such a circumstance the three months section 192(2)(a) expiry date should be three months after the making of the protected award under section 189(2), in other words, a date which here would be 25th March 1997. Otherwise, she argues, one gets into a position in which, not only in this case but in the majority of cases, the employee's complaints will be prima facie time-barred before liability to pay under a protective award had even arisen.[20]We see the force of that argument, but we do not accept it for three reasons. Firstly, the words in section 192(2)(a), looking, in relation to the facts of this case, to "the last of the days in respect of which the complaint is made of failure to pay remuneration", seem to us inexorably, when nothing has been paid for any part of the protected period, to point to the end of the protected period, without any reference to when that protected period was first ascertained or ascertainable or ordered. Secondly, a complaint under section 192 is not barred unless neither subsections 192(2)(a) or (b) is satisfied - (a) and (b) are alternatives. One cannot therefore say that an employee's complaint is barred simply because it fails to satisfy section 192(2)(a). Thirdly, it would have been easy enough, had this been intended, for the legislature expressly to make the three months in some cases to run from the date of the award, where that would have provided a later starting date for the three months, and yet that seems quite clearly not to have been done. One could compare section 189(4) which has an express provision referring to the date of the award where that is intended and it is therefore arguable that where the date of the award is to be taken into account the draftsman shows that he knows how to provide for it; he did not so provide here and so it might be taken, therefore, that he did not here intend it.[21]Ms Simler argues convincingly that section 192, in conjunction with awards possible under section 189, are intended to amount to a real and effective deterrent so as, by deterrence, to ensure compliance with section 188, which is itself intended to implement Community Law.[22]We accept that but we take it as axiomatic that at all events (save in exceptional circumstances which we have been quite unable to foresee) it can never not be "not reasonably practicable" to present a complaint under section 192 in respect of a period where no award has yet been made under section 189(2). If that is right, then an employer, in a case where no payment at all has been made under the protective award or in respect of the protected period, will escape liability on account of the employee's delay in presenting his complaint only if during some spell of the balance, if any, of the remainder, after the date of the award, of the period of three months after the last date of the protected period, it was reasonably practicable for the employee to present his complaint and yet that he had failed then to do so or if his delay after that period of three months was unreasonable. It is hard to see how those possible escape routes, dependent upon oversight by the employees, their unions or advisers, can be likely so to affect the employer's judgment, when the employer is considering whether or not to perform his duty under section 188 and considering also the potential sanctions should he not perform them, as materially to undermine the deterrent force which section 189 awards should have; see Lord Hoffman's summary of the domestic and Community law in this area in Mann and others v Secretary of State for Employment [1999] ICR 898 .[23]As it was dealing with a case in which the three months from the last date of the protected period had expired well before the complaints were presented on 5th October 1998, the Employment Tribunal had to go beyond section 192(2)(a) to study section 192(2)(b). We have already said what we regard as axiomatic in respect of this first passage of time, but we reiterate that it was in our view manifestly not only not reasonably practicable but downright impossible for the employees to have presented any claim under section 192 until the Employment Tribunal had made the protective award on 10th December 1997, that is to say well after the expiry of the section 192(2)(a) period. In justifying the delay from the section 192(2)(a) dates in May and June 1997 down to 10th December 1997, the employees would have no difficulty whatsoever. No tribunal, properly instructing itself, could have concluded in respect of the period to 10th December 1997 other than that it was throughout that period not reasonably practicable for the complaint to have been presented. Thus the context in our case requires one to examine the period from 10th December 1997 to 6th October 1998. It is to be noted that under section 192(2)(b) the test of reasonable practicability is applicable to the period of three months that end with the section 192(2)(a) expiry dates, namely in May and June 1997. Once the delay goes on after that the question is not expressly whether it was not reasonably practicable to present a claim within the further period but simply whether the Employment Tribunal takes the view that the delay in the further period has been reasonable or unreasonable. Where, as here, the whole of the section 192(2)(a) period has expired before the section 189(2) award, the test of reasonable practicability as such is thus at no stage the test. One is instead asking whether delay during the further period (that is to say, on our facts, from 10th December 1997 onwards) was or was not reasonable. That is a much less confined test than that of reasonable practicability although, of course, the reasonable practicability of the presentation of a complaint is but one factor in the broader question of whether delay has been reasonable.[24]Moreover, the words of the Act "as it may consider reasonable" indicate that an unfettered discretion is here conferred upon the Employment Tribunal. Of course, it has to exercise the discretion judicially, but otherwise there is nothing in it which expressly either must or must not be considered in its evaluation of what has been or has not been reasonable delay. The legislature has not, for example, identified any characteristics of any period which are to be taken to make the elapse reasonable or unreasonable. That points to a difficulty for an appellant. It will not be enough for an appellant to say, for example, that the Employment Tribunal could well properly have concluded other than it did. Rather, the appellant needs to show that the Employment Tribunal took into account material which it should not have taken into account in the exercise of its discretion or failed to take into account that which it should have taken into account, or otherwise that it erred in principle of law or held in such a way that no reasonable tribunal properly instructing itself could have concluded as it did. As to error of law, the tribunal said:
"17 … It appears that one must first ascertain the period in respect of which the employer failed to pay remuneration. That must mean the days covered by the protective award, ie the protected period. The complaint is that the employer failed to pay remuneration in respect of the protected period. The period during which the section 192 complaint therefore, has to be made is a three month period beginning with the last day of the protected period. Both the applicant and the respondent submitted that this is the correct interpretation and we are bound to agree with them. …"
We do not take "bound to agree with them" meaning that in a formal legal sense they had no choice but to agree with them but rather that they felt the argument was compelling. We see no error in that passage.[25]Next the tribunal said in their paragraph 21:
"It was clearly impracticable for the applicants to submit their section 192 complaint in time, given that the time limit was established and defined by the Tribunal after the date had expired. The question, therefore, for the Tribunal to consider was whether the applications had been submitted within a further reasonable period."
We have no quarrel with that either.[26]Then the Tribunal turn to the facts which they regarded as material to their exercise of a discretion and they mention, firstly, that the Employment Tribunal's protective award was and was known by the employees' representative to be appealed against to the EAT; that the payments for the protected period could not be made until the Department of Employment served Recoupment Notices (or indicated that none would be served) and that the employees' representative knew that to be the case. Just pausing there, we will have to return to recoupment provisions. The tribunal said that they acknowledged that the complaint could have been presented prior to the outcome of the appeal. They recognise that the complaint could have been presented before Recoupment Notices had been served or before it had become clear that none would be served. They said that it was in their view reasonable, as to the appeal to the EAT, to await the Employment Appeal Tribunal's written decision; and they said "We also take note" that after the claims had been presented on 5th October 1998 the Company's solicitor wrote to say that the applications had been premature. Then the tribunal says:
"24. … Having regard to all of these circumstances, the Tribunal finds that the application was submitted within a period of time which was reasonable and accept jurisdiction to deal with the case. The Tribunal has, therefore, proceeded to make orders in respect of each applicant in the agreed sum."
That last passage is because it had been conceded as follows:
"1 … It was agreed between the parties that if the Tribunal had jurisdiction to hear the claims, then the applicants were entitled to payments and that the amounts of such payments were also agreed. …"
[27]In what respects does the appellant argue the process thus indicated by the Tribunal to be deficient or defective?[28]The appellant's argument is that as there is nothing about an appeal against a protective award and nothing about incomplete recoupment provisions, that, in law, precludes a section 192 application being made, such factors must be irrelevant and ought not to have been taken into account and that to take them into account, as the Employment Tribunal did, shows an error of law.[29]That argument seems to us to be fallacious. Quite often in this area one can get to a situation in which, whilst a complaint could in law be presented notwithstanding a given factor, the existence of that factor can nonetheless make it reasonable to delay the presentation. Suppose, for example, that one has an employer who has lost an unfair dismissal case at the tribunal and who is thus required to make a substantial payment to his erstwhile employee. Suppose that he is advised that the former employee is gravely ill and that the existence of a possibility that the award in his favour might be snatched away from him by an appeal and suppose that the possibility of the stress of continuing proceedings is said by his doctors to be very likely to exacerbate his condition still further. The employee's illness and what the employer is told by the doctor would not preclude, in law, the lodging of a Notice of Appeal by the employer, but surely the Employment Appeal Tribunal, asked to extend time for the lodging of a Notice of Appeal could, not improperly, take into account the existence of those factors when considering the reasonableness or not of delay on the employer's part. It is easy to suppose factors which are not, separately or even in conjunction, determinative, but which are nonetheless not irrelevant and as such may, without error of law, be taken in to account. Had the Employment Tribunal here taken the view that no complaint could be presented until the appeal against the protective award was concluded or until the recoupment position had settled down, that would have been an error of law. But the tribunal expressly recognised that that was not the case. What they said was:
"24. While it is true that an application could have been submitted to protect the applicants' position prior to the settling of the appeal and prior to the Recoupment Notices being served, we do not think that it was unreasonable to wait until the appeal had been disposed of and to give further time for the position regarding the Recoupment Notices to be ascertained. We also feel that it was reasonable to wait until the written decision of the Appeal Tribunal had been received. …"
[30]Mr Clarke for the appellants says in his skeleton argument:
"If, as a matter of principle, the appeal and the recoupment processes are irrelevant, then the employees here had no good reason for delaying so long in presenting their complaints."
But we do not find the appeal and recoupment processes irrelevant in the sense of their being such that it was improper even to take them into account.[31]As for whether the Employment Tribunal took into account another factor which it should not have done, the appellants refer to the Tribunal's mention of the letter of 5th October 1998 in which the appellants had asserted by their solicitor that the lodging of claims under section 192 was premature. We do not see that as irrelevant either. One factor a tribunal is likely to need to consider in such cases is whether the employee's delay would or would not materially delay the section 192 hearing to the prejudice of the employer. Where, even after the section 192 complaints have been presented, the employer is still urging that their presentation has been premature, then it is even more likely that he would have so urged if the complaint had been lodged earlier (i.e., in the period before the complaint was presented) and also it is likely that he would not be pressing for an early hearing nor complaining of a delayed one. Again, the factor, whilst very far from being determinative, cannot be described as outside the range of that which can properly have regard paid to it.[32]In its Notice of Appeal the appellant Company argues that the Employment Tribunal's decision was perverse. The only further ground, that is to say the only one we have not so far dealt with, is that the employees' representative knew that the Company's appeal to the EAT against the protective award had been lost not as late as September 1998 (when the EAT's transcript of the oral decision of 23rd July 1998 was handed out) but on 23rd July 1998 itself, the date of the oral hearing of the appeal, the oral hearing being followed by a full oral decision dismissing the appeal on the same day.[33]The effect of this argument would be to deny the awaiting of the appeal's outcome as a factor in the employee's favour after 23rd July 1998 rather than after September 1998, as would otherwise be the case. What is perhaps truly relevant is the date of the Employment Appeal Tribunal's order, as until then the oral judgment could, at any rate theoretically, have been changed or even reversed. And, as we mentioned earlier, it is not clear when the sealed copy of the order was issued. But that the judgment was given as it was on 23rd July 1998, and that it clearly dismissed the appeal, was plainly a matter which the Employment Tribunal had in mind. There had been an oral decision on 23rd July 1998 and the Employment Tribunal actually says so. In their paragraph 6 they say:
"A notice of appeal was lodged in the Employment Appeal Tribunal on 20 January 1998. The case was heard on 23 July 1998 and an oral decision was announced on that day. A written decision of the Employment Appeal Tribunal was received in September 1998."
We are not prepared to assume that the Employment Tribunal had forgotten that fact three pages later. How much weight has to be attached to that in an overall assessment of what is reasonable or what is unreasonable was very much a matter for the tribunal itself and we see no error of law in their handling of that issue.[34]So, even without a closer look at the recoupment provisions, we are unable to see any error of law in the tribunal's decision, and we emphasise, of course, that we can only deal with errors of law.[35]We have so far taken the position to be that the recoupment provisions are such that whereas no payment could be made to the employees under the protective award until either a Recoupment Notice had been served or it had been indicated that none would be, yet, even so, a section 192 claim could have been presented.[36]We could not improve on Miss Simler's summary of the reason for recoupment provisions which is found in paragraph 31 of her skeleton argument; it says this:
"So far as the effect of the Employment Protection (Recoupment of Allowances etc) Regulations 1996 are concerned, payments under a protective award are treated as earnings for the purposes of social security legislation. An employee who is entitled to payment under a protective award (or an enforcement order pursuant to section 192) is therefore, disqualified from claiming jobseeker's allowance for the same period. However, because the award may not be made until some time after dismissal (if at all) the employee is entitled to claim the allowance (or income support), and if and when a protective award is made, recoupment of the amount of jobseeker's allowance so paid is made out of the money due under the protective award."
[37]The Regulations expressly apply to payments of remuneration under a protective award; regulation 3(1)(b). The employer, on the making of a protective award, is obliged to send some information to the Secretary of State - regulation 6 - as also is the Employment Tribunal itself - regulation 5. Then comes Part III of the Regulations headed "Recoupment of Benefit". Paragraph 7 is headed "Postponement of Awards" and it reads as follows:
"(1) This Regulation shall have effect for the purpose of postponing relevant awards in order to enable the Secretary of State to initiate recoupment under Regulation 8 below."
[38]Employees are ultimately paid only the balance, if any, left over after due recoupment to the Crown - regulations 8(8), 8(9) and 8(10). The Employment Tribunal held that only two recoupment notices had been received by the Company. It is not said that even in the case of those two any balance was left owing to the employees. One can therefore arrive at the strange position in which an employee can complain of a failure to pay him even where the obligation to pay him has been stayed under regulations 7(3) and 7(2) and where the case is that, if the employer were to pay the employee, he could end up having to pay twice over - regulation 8(9). Yet all of this is occurring under a statutory provision - section 192(1) - that requires the employee to say that the employer has failed to pay him; section 192(1). The only way, as it would seem, to make sense of this paradox is to see regulation 7(3) as creating a deemed failure which can be acted upon under section 192(1) even when there is no real failure. Regulations 7(2) and 7(3) read:
"(2) Accordingly – (a) so much of the monetary award as consists of the prescribed element; (b) payment of any remuneration to which an employee would otherwise be entitled under a protective award, shall be treated as stayed (in Scotland, sisted) as respects the relevant employee until – (i) the Secretary of State has served a recoupment notice on the employer; or (ii) the Secretary of State has notified the employer in writing that he does not intend to serve a recoupment notice. (3) The stay or sist under paragraph (2) above is without prejudice to the right of an employee under section 192 of the 1992 Act to present a complaint to an employment tribunal of his employer's failure to pay remuneration under a protective award and Regulation 3(2) above has effect as respects any such complaint and as respects any order made under section 192(3) of that Act."
The mere fact that regulation 7(3) enables an employee to complain under section 192(1) before the employer has truly failed to pay him (in the sense that he has truly failed to honour an obligation that has not been stayed) does not, as it seems to us, of itself suggest that it is necessarily unreasonable for an employee to await the real failure before launching proceedings under section 192(1). Until the recoupment position is known, the employee will not know or may well not know whether he is about to launch proceedings for £5 or £50 or £500 or, indeed, possibly for nothing.[39]It cannot, in our view, be taken automatically and in every case to be unreasonable for an employee to wait to see if the game is worth the candle. We are not to be thought to be saying that it will invariably be the case that delay in order to await the recoupment position being ascertained must necessarily be reasonable delay within section 192(2)(b) but we do say that where an Employment Tribunal does recognise, as this one did, that section 192 proceedings can be begun before then, a continuing state of indecision or unknowingness as to recoupment is a factor which the Employment Tribunal may properly have regard to in judging the reasonableness of the delay in the "further period" described in section 192(2)(b).[40]We mentioned earlier that the only authority remotely in the area is regarded by all before us as not close enough to be really of assistance. It is Ledbury Preserves (1928) Ltd v Merrick & Others (Unreported – 8th October 1987 EAT/441/87) . We do not detect any part of our judgment as being inconsistent with it but it does have the merit of reminding us of the dictum of Shaw LJ in Walls Meat Co Ltd v Khan [1979] ICR 52 , at 57D, where he spoke of a different provision altogether as to reasonable practicability but made observations which seem to us to be appropriate in the case before us. Shaw LJ speaking of reasonable practicability said at 57C:
"It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs. The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the industrial tribunal, and that their decision should prevail unless it is plainly perverse or oppressive. …"
We find nothing perverse or oppressive about the tribunal's decision in this case. We add that Mr Carr reminds us also of Shaw LJ's passage at 58B-C, speaking of reasonable practicability:
"It is not to be decided in vacuo on some ideal or theoretical basis but in the world of practical affairs. This requires that account be taken of and consideration given to all material circumstances affecting the position of the complainant."
If that is true, as it plainly is, as to the test of reasonable practicability, then even more so is it appropriate where reasonableness generally is what is required to be considered which is the case before us. We have found, as we say, nothing perverse or oppressive and accordingly we dismiss the appeal.