MR IAN OAKLEY & OTHERS v KVAERNER REDPATH ENGINEERING SERVICES LIMITED [2001] UKEAT 1278_99_2404

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1278_99_2404

Case No Appeal No. EAT/1278/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR IAN OAKLEY & OTHERSAPPELLANT

KVAERNER REDPATH ENGINEERING SERVICES LIMITEDRESPONDENT

Before

His Honour Judge D Pugsley Mr B R Gibbs Mr A E R Manners

Date 24 April 2001

[1]APPEARANCES For the Appellants MR O HYAMS (of Counsel) Eversheds Permanent House 91 Albert Road Middlesborough Cleveland TS1 2PA For the Respondents MR S JONES (of Counsel) Beachcroft Wansbroughs 100 Fetter Lane London EC4A 1BN JUDGE DAVID PUGSLEY : By a fax received by the Regional Office on 30th November 1998 Mr Oakley stated that he was bringing a case of unfair dismissal and damages for breach of contract on behalf of himself and 17 former employees of the respondent company. Mr Oakley said:

"I write to you by letter rather than using the IT1 Form because we have only today been advised that our claim must be made by tonight and sent to the Employment Tribunal to reach the building by midnight tonight."

Mr Oakley outlined the fact that they all believed that they had been unfairly selected for redundancy and also the company were in breach of their contractual obligation.

[2]By a summary reasoned decision, promulgated on 30th June 1999, the tribunal, sitting at Newcastle-upon-Tyne, dismissed the applications as all being out of time. The summary reasons stated that the respondents had employed all the applicants in various capacities for varying period of time. All were employed on 14th July 1998 when by letter of that date the respondents terminated their employment giving redundancy as a reason. That letter told all of them that their employment was terminated with effect from 17th July and that they would receive a payment in lieu of notice. The letter of the 27th July subsequently sent to each, confirmed the termination date would be 31st July. After finding that the complaints were lodged on 30th November, the tribunal then went on to ask what was the effective date of termination. The tribunal found that the effective date of termination was 31st July 1998 and that therefore the claims were out of time. They asked the question: was it reasonably practicable for the applicants to present their claims within the time limits, and found that in each case it was. They stated:

"We find as a fact that each of them was made aware of the impending termination of the employment and that each understood the situation. We do not accept that they failed to understand the meaning of pay in lieu of notice nor that they believed that they were entitled both to a lump sum payment for a 'notice' period and to be employed during that time. Further we have no evidence that any of them were prevented from presenting a claim earlier than they did. For those reasons, we do not exercise any discretion in respect of the late claims under S 111 of the ERA or article of the Order."

[3]The tribunal then promulgated extended reasons in which they amplified their various findings.

[4]They rejected a somewhat ingenious argument that as a matter of law a breach does not end a contract if the party who suffers the breach chooses not to treat it as so doing. The tribunal said that it did not accept that that argument could apply where claims were brought under the employment legislation which was specific. It noted that in making specific provision for employment cases Parliament must be taken to have intended that to override any other principle of contract law which, if applied, would defeat the application of the specific legislation. The tribunal identified the issue whether it was practicable for the applicants to present their claims within the time limits. They found that in each case, considered individually, it was practicable and said:

"We do not admit any of the claims under that discretion."

[5]The tribunal at paragraph 9 of their decision stated:

"It was common ground between the parties and as between the applicants themselves that the applicants acted in these matters in concert and followed the lead of Mr Oakley."

[6]The tribunal noted that after the issue of the letters, certain employees of the respondents made statements to some of the applicants to the effect that they were still employed for the next 12 weeks. The argument used by the applicants was that information which was passed to some by others caused them to believe that they were still employed and so raised a misunderstanding as to the start of the time limits for the claims. The tribunal noted that these statements were not made by the personnel department. They were made by the allocations department in a different connection. After the redundancy notices were issued a particular job arose. It was the task of the allocations department to find enough men to cover this. It was the respondent's policy in such circumstances to take on for the duration of a particular job if necessary first and foremost men who were known to them as having worked for them in the past. When certain fitters applied for this temporary work, they were told that there was some confusion as to why they could not be used and they were told that they could not be engaged because they were still employed by the respondents. The tribunal stated that:

"Personnel was the authorised source of the letters of termination. Insofar as anything said by any other employee conflicted with those letters, the clear and reasonable course would have been to contact personnel to clarify the position. That was not merely a possible course but an obvious one. That applies to each and every one of the applicants who rely upon those comments being said to or relayed to them."

[7]The tribunal then went on to consider the individual evidence of the various applicants and having done so, they came back to the position of Mr Oakley.

[8]The tribunal pointed out that:

"Mr Oakley was the co-ordinator of the group of applicants. Mr Oakley says that he always believed that employment did not end until 23 October and that time ran from then. That was because of the way he understood the expression payment in lieu."

They pointed out that Mr Oakley took legal advice from two separate sources about an injunction against the respondents in relation to the dismissals. He said that by the time he took the second advice he had only three or four days left to act. Clearly if he thought that in relation to the injunction, he must have had it within his contemplation that employment was about to end. The tribunal decided that Mr Oakley was an experienced trade unionist who had held responsible senior union offices and been on training courses and that they did not find it credible that in the light of that he believed that payment in lieu was only capable of the interpretation he wished to place on it, i.e., that employment must continue to the end of the contractual notice period. The tribunal then decided that they, in all the circumstances, did not find it credible on the balance of probabilities that the question of time limits and their commencement in relation to unfair dismissal and breach of contract did not arise in the discussions and advice being undertaken. The final conclusion of the tribunal was that:- "Even if Mr Oakley had himself believed that employment ended in October, it must have been apparent from the circumstances, e.g., the DSS meetings on site, the fact that two of the applicants went off and found alternative work, the statement of the allocations employees, that that was not a universal view. If he had not otherwise taken advice or considered the time limits of these claims, it would have been reasonably practicable then for him to do so. If he chose not to consider these questions because he was certain he knew the answers, that does not amount to showing that it was not practicable to claim in due time."

[9]Before us the appellants have argued that evidence was adduced at the hearing of the Employment Tribunal that some of the number had been told by representatives of the respondents that they remained technically employed by the respondents during their notice period and they therefore believed their employment with the respondent ended on the dates when their notice expired. This evidence was given by a number of witnesses and the evidence was referred to in the tribunal with one important exception.

[10]The thirteenth appellant, Mr Peter Owen, gave evidence in person that after the 31st July 1998 he had been told by Mr Leo Hall, who was at that time the respondents' personnel service manager and who had written the letters referred to, that it was incumbent on Mr Hall to inform him, Mr Owen, that he was still technically employed during his notice period. This was said in connection with an application which Mr Hall had said on 29th July 1998 he would make for an ill health early retirement pension for Mr Owen. Mr Owen also said that he had also told Mr Ian Oakley, the first appellant and Mr Charles Counter, the fifth appellant, of this conversation with Mr Hall. Mr Oakley was acknowledged by the tribunal as the co-ordinator of the group of the applicants. This was put to Mr Hall in cross-examination who said the conversation was rather different and that it was incumbent on him to continue with Mr Owen's application for an early retirement pension whether or not the respondents employed him. The point taken by the appellants is this was a conflict of evidence on a significant issue of fact to which the tribunal should have referred. Relying on the case of Levy v Marrable & Co Ltd

[1984] ICR 583

EAT and Meek v City of Birmingham District Council

[1987] IRLR 250

CA , it is said that this is a finding of fact that the tribunal should have made. It is further argued that the tribunal gave insufficient regard to the oral communications made by employees of the respondents concerning the continuation of the appellants' employment and in particular the appellants rely on Leech v Preston Borough Council [1985] 192 EAT and Carmichael and another v National Power plc

[1999] ICR 1226

HL .

[11]Although stated in various ways, the ultimate thrust of the grounds of appeal is that the tribunal did not give sufficient weight to the evidence of what certain of the appellants had been told about the fact that they were still technically employed by the respondents and that is why they could not be taken on for the fresh work that had materialised.

[12]Mr Jones, who appears for the respondents, has understandably and correctly pointed out that the tribunal has made certain adverse findings of fact about the evidence of Mr Oakley and he and his state of knowledge and belief was the fulcrum on which this case swings. As Mr Jones put it in his skeleton argument:

"At its highest, The Appellant's submission comes to this; there was overwhelming evidence that Mr Oakley was aware that some employed by the Respondent, including those working in personnel, were suggesting that a "technical" employment continued beyond 31 July 1998 and thus that Mr Oakley genuinely believed that it was unnecessary to bring a claim. However, that point is dealt with directly by the Tribunal, which decides that even if Mr Oakley was convinced that he continued in employment, there was sufficient uncertainty that it was unreasonable for him not to have sought specifically to clarify the issue (EAT Bundle page 23). This is a decision that was open to the Tribunal on the facts, clearly expressed in its decision and not specifically challenged by the Appellants."

The appeal, therefore, Mr Jones says, should be dismissed.

[13]We are well aware that Employment Tribunals are the judges of fact. We are also well aware of that stream of authority which deprecates the combing through of decisions and giving them quite myopic scrutiny which is wholly inappropriate. However, all the members of the tribunal have a sense of unease about this decision.

[14]The meaning of the words "reasonably practicable" has been the subject matter of considerable litigation in the courts. In Palmer v Southend on Sea Borough Council

[1984] ICR 372

, May LJ, in a reserved decision, exhaustively reviewed the authorities. At 384G to 385G said this:

"… However we think that one can say that to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view too favourable to the employee. On the other hand "reasonably practicable" means more than merely what is reasonably capable physically of being done-different, for instance, from its construction in the context of the legislation relating to factories: compare Marshall v. Gotham Co Ltd [1954] AC 360. In the context in which the words used in the Employment Protection (Consolidation) Act 1978, however ineptly as we think, they mean something between these two. Perhaps to read the word "practicable" as the equivalent of "feasible" as Sir John Brightman did in Singh's case [1973] ICR 437 and to ask colloquially and untrammelled by too much legal logic – "was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?" – is the best approach to the correct application of the relevant subsection. What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an industrial tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the industrial tribunal to investigate whether at the time he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisers' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the industrial tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account."

[15]We are troubled by the fact that at times in its extended reasons the tribunal refers to whether it was "practicable" to claim in time. We have noted that in paragraph 10 of the summary reasons the tribunal said, " we have no evidence that any of them [the appellants] were prevented from presenting a claim earlier than they did." At no stage is there any elucidation of what the words "reasonably practicable" mean and we are unsure from the overall context that the tribunal had in terms the reasonably feasible test in mind. Moreover, in the passage from May LJ's decision he in terms pointed out that one of the matters that would require investigation would be whether or not there had been misrepresentation about any relevant matter by the employer to the employee.

[16]Looking at this decision we are concerned about the way in which the tribunal have dealt with the conversation to the effect that the men were still technically employed. We are concerned at the suggestion that no reliance could be placed on what was said by management and that the parties should have gone back to the personnel department. We are not at all sure that the tribunal was justified in their assertion that this was a clear and reasonable course which should have been taken. Mr Bartlett, who was one of the employees who was concerned with allocating work gave evidence that he had contacted the personnel office before telling the employees that they were still technically employed.

[17]We are aware that this tribunal made adverse findings about Mr Oakley, but we are concerned that although they rightly viewed Mr Oakley's position as crucial, there is no clear finding by this tribunal as to the exact extent of Mr Oakley's knowledge about what he had been told by other employees about still being technically employed.

[18]In the context of this case we consider it was vital that there were clear findings by the tribunal as to exactly what was the state of knowledge of Mr Oakley about what other people have been told. Of course in any workplace, where there is change, whether it be redundancy or re-organisation, it is inevitable that there will be gossip and speculation. However, we consider that in the light of the evidence emanating from representatives of management itself that men were being told they were technically employed until the expiry of their notice, we consider that this is a matter that should have been carefully scrutinised and very precise findings of fact made.

[19]With some reluctance, we have decided that the only proper course is to allow this appeal and to direct that the matter be remitted to another tribunal for them to reconsider the matter afresh. We do so with reluctance because we are well aware that it may be that that tribunal may reach the same conclusion. However, for the reasons that we have given, taking all the matters that have raised before us into consideration, we are troubled that we cannot be sure that the correct test of reasonable practicability was in the mind of the tribunal in view of the oscillation of the terminology used; the failure to give any account of what they believed that term "reasonably practicable" meant and also by the skeletal way in which findings were made about the knowledge of Mr Oakley of what was being said to those who sought work and others who claimed to have been told that they were still technically employed. There is no one single issue on which this matter is determined, but having regard to the totality of the points raised, we consider this is a case where the whole issue should be considered afresh.

[20]We have not found it necessary to go into detail as to the argument that the phrase "money in lieu of notice" is ambiguous. Certainly neither of the industrial members of this tribunal consider that this would be an ambiguous phrase in the context of modern industrial relations. However, it should be said that we were told, although there is no evidence about this, that men at this factory had little cultural experience of redundancy since until the factory was sold by ICI to another undertaking there had been a no compulsory redundancy policy. This is a matter which no doubt could be explored if thought relevant at the next hearing. The appeal is therefore allowed to the extent of being remitted to a further fresh tribunal to reconsider the case.