MR D BRACEWELL v SECURICOR GUARDING LIMITED [2001] UKEAT 1267_00_2603

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1267_00_2603

Case No Appeal No. EAT/1267/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D BRACEWELLAPPELLANT

SECURICOR GUARDING LIMITEDRESPONDENT

Before

Mr Recorder Burke

Date 26 March 2001

[1]APPEARANCES For the Appellant MR D BRACEWELL (the Appellant in person) MR RECORDER BURKE QC This is the Preliminary Hearing of Mr Bracewell's appeal against the decision of the Employment Tribunal at London South, chaired by Mr Crawford and sent to the parties with extended reasons on 20 September 2000, striking out Mr Bracewell's application to the Employment Tribunal dated 1 March 2000, on the basis that there was no jurisdiction in the Tribunal to allow that application to proceed to a merits hearing.

[2]The factual background can be shortly set out. Mr Bracewell was employed by the Respondents from December 1993 or 1994 as a Security Guard. In 1995 while in the course of his employment, he was working at the new British Library near St Pancras station, he claims that he fell in the dark and injured his left knee. It is plain that as a result of the condition of his knee or his knees his employment was terminated on 11 November 1997.

[3]Mr Bracewell claims that the employment was not only terminated forthwith but was terminated without any payment in lieu of notice. He brought proceedings before the Tribunal in 1998, claiming that he had been wrongfully and unfairly dismissed. Those proceedings were disposed of by a settlement which was carried out through the ACAS conciliation process, which is recorded in a formal document issued by ACAS and signed by the parties, including Mr Bracewell, dated 29 June 1998, whereby Mr Bracewell accepted the sum of £750.00 in full and final settlement of all claims he had against the Respondents. Thereafter, Mr Bracewell sought to recover damages for the injuries to his knee but appears to have been advised that he could not avoid the effect of the primary three year limitation period which applies to personal injury claims and which would have expired in November 1998; the original accident having taken place in November 1995.

[4]Mr Bracewell, in his second originating application to the Tribunal, which is that which has led to this appeal, refers in passing to discrimination on the part of the Respondents. Essentially, as he has confirmed to us today, his complaint, so far as his employers are concerned (leaving aside his claim that he should receive damages in respect of his personal injuries) is a complaint of wrongful and unfair dismissal. He plainly feels, and perhaps, for all we know, entirely justifiably feels, that he was extremely badly treated by his employers. Not only was he deprived of money in lieu of notice but he has also been deprived of benefits as a result of the conduct of the employers; and that, on top of the injuries which he has sustained which are obviously serious, leads him to feel, not surprisingly, aggravated, distressed and annoyed at what he has gone through at the hands of the Respondents.

[5]If one reads the originating application of last year, one can see that although Mr Bracewell today says that his principle complaint is as to the dismissal, in reality his most prominent complaint was, that he should be allowed to proceed with his personal injury claim, despite the expiration of the primary time limit to which we have referred. In his written submissions he refers to various authorities and legislative provisions which, he says, bear on that topic although, strangely, he does not seem to refer to the provision which gives rise to a discretion to extend the time for a personal injury claim, namely Section 33 of The Limitation Act 1980.

[6]However that may be, Mr Bracewell's complaint to the Employment Tribunal came before the Tribunal, chaired by Mr Crawford, on 28 July 2000, for the Tribunal to decide whether, insofar as the originating application gave rise to claims of unfair dismissal, wrongful dismissal, breach of contract and discrimination those claims were out of time and whether any such claims were barred by the agreement that had been entered into through ACAS in 1998. The Tribunal was plainly not minded to exercise its discretion under the various statutory provisions which relate to the time limits for the institution of proceedings in the Tribunal, to extend those time limits for any of those claims. All of those claims were prima facie well out of time. The dismissal, as we have indicated, occurred in November 1997. The originating application was dated 1 March 2000. All of those claims were therefore prima facie out of time by two years or more. The Tribunal at paragraph 5 of its decision said:

"….. we would not have been minded to exercise our discretion to extend time, so and to allow this application to proceed."

However, the Tribunal did not formally decide on the time issue because it records in paragraph 6 of its decision:

"…………. Mr Bracewell conceded that he does not wish this Tribunal to consider any matter flowing from the termination of his employment which occurred on 11 November 1997. He stated quite unequivocally that what he wished this Tribunal to consider is the issue of compensation for his injury arising out of the accident which he suffered while working for Securicor at the British Library in March 1995."

The Tribunal expressed sympathy to him because he clearly appeared to them to be in agony from his knee injury; and he clearly appears to us to be suffering substantially from the problems with his knee or his knees. The Tribunal pointed out that, if he wanted to proceed with a personal injury claim then the Employment Tribunal was the wrong place in which to do so. Because Mr Bracewell only wanted the Tribunal to hear a personal injury claim and the Tribunal had no jurisdiction to hear a personal injury claim, the Tribunal struck out the originating application.

[7]Mr Bracewell has submitted to us lengthy grounds of appeal and arguments in support of an appeal from that decision of the Tribunal, all of which we have read with care, as we have indeed read the numerous other documents which appear in the bundle. We have listened also with care to what Mr Bracewell has said this morning and have been careful, firstly, to ensure that he had every opportunity to say everything that he wished to say to us and, secondly, that we have understood what are the complaints that he has about the decision of the Tribunal which is the subject matter of this appeal. We have summarised those as we understand them. We have put them to Mr Bracewell and he has accepted that those grounds are, indeed (in our words not his) a summation of the criticisms he has of the position which has been reached and the grounds which he would urge us to consider in deciding whether he has or does not have an arguable appeal.

[8]Mr Bracewell, we hope, has understood that it is not possible for us today to decide that he was unfairly or wrongfully dismissed, or to award him compensation but that our task is only to consider, on this Preliminary Hearing, whether he does have any arguable grounds of appeal. Those grounds, as we have put them to Mr Bracewell and as he has accepted, can be summarised under five heads in this way -

[9]Firstly, Mr Bracewell submits that there was a legal flaw in the process by which the agreement negotiated through ACAS in 1998 was concluded and that that agreement should not be regarded as binding on him. We can detect no flaw in that process, having considered at length Mr Bracewell's written and oral submissions. In any event it does not seem to us to matter because the Tribunal decision to strike out Mr Bracewell's claim was not made on the basis of the ACAS settlement, consideration of which the Tribunal put on one side as a result of what Mr Bracewell said to them about what the nature of his claim really was.

[10]The second ground, is that Mr Bracewell did not have the opportunity before the Tribunal to put forward his evidence, documentary and oral, and his arguments to demonstrate that he had been wrongfully and/or unfairly dismissed. Unfortunately Mr Bracewell, in putting that point to us, has misunderstood the nature of the hearing before the Tribunal on 28 July 2000. The Tribunal was only considering preliminary issues as to whether or not a hearing on the merits should or should not occur. The Tribunal was right not to permit Mr Bracewell, on that occasion, to put forward arguments and evidence as to the merits of his claims.

[11]Thirdly, Mr Bracewell submits that the Tribunal in its decision in July 2000 was acting "outside legal procedures" to use his words; in other words that somehow it was acting unlawfully. It is not entirely clear whether that is a separate submission from the previous submission which we have recorded; but insofar as it is we can see no basis on which it could be said that the Tribunal was acting without jurisdiction or otherwise erroneously in law in reaching the decision that it did on that occasion.

[12]Fourthly, Mr Bracewell says that the person he describes in his written submissions as the 'certificate officer' (we have identified, by discussing it with Mr Bracewell, that he means the Chairman of the Tribunal when he uses that term) was dismissive of his attempts to put forward his case, in effect stopped him from doing so and was not as polite to Mr Bracewell as he should have been. We of course were not present at the hearing before the Tribunal in July of last year and cannot say whether there was any impoliteness, if there was it is to be regretted but if the Chairman, as we believe to have been the case, was politely or impolitely stopping Mr Bracewell from seeking to advance his case on the merits, he was of course correct to do so. Mr Bracewell does not suggest that he was not allowed to put forward his case on the matters which were central to the Tribunal's consideration on that occasion, namely, first of all the time limits and secondly, whether there was any claim other than a claim for personal injury.

[13]Finally, we come to the central part of the Tribunal's decision, namely paragraph 6, which is based on what Mr Bracewell told them was the real nature of his claim. Mr Bracewell today, with admirable frankness, does not suggest that the Tribunal has wrongly recorded what he said. He accepts that he did say what he is recorded as saying; and in so doing he implicitly accepts that that was the real thrust of his complaint, as indeed appears from a reading of his originating application. He says that he did not mean to make that concession because he was very depressed, aggravated and agitated by the employer's conduct and that he was suffering from his knee and should not have said what he did; he says that if he had not been suffering and depressed and agitated as we have described, would not have said it. We can understand that he was depressed and agitated by the Respondent's opposition to his claim; and we can understand that it is difficult to cope with the affects of serious knee damage and the pain that results. However there is no doubt, and Mr Bracewell as we say, has conceded today, that he did say what he said to the Tribunal; and there is no doubt that that realistically reflects what his second complaint was all about. Whereas in certain circumstances a complaint of racial or sex discrimination can lead to compensation for psychiatric loss as part of injury to feelings, here it is not alleged that the accident which caused the knee injury was anything other than just that, ie an accident. It is not suggested that it arose out of any form of discrimination. In those circumstances the Employment Tribunal had and has no jurisdiction to deal with the personal injury claim. Thus this last ground of Mr Bracewell's appeal, we regret to say, has no arguable content to it.

[14]It follows that, although this will be a great disappointment to Mr Bracewell and we express our sympathy to him as to this result, there is in our judgment no arguable ground of appeal here and this appeal must be dismissed.