MR M J BELLAS v MERSEYRAIL ELECTRICS [2001] UKEAT 641_01_0510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 641_01_0510Case No Appeal No. EAT/641/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M J BELLASAPPELLANTMERSEYRAIL ELECTRICSRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 5 October 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a preliminary hearing the appeal of Mr Michael John Bellas in the matter Bellas v Merseyrail Electrics . Mr Bellas has earlier written in to say that he would be unable to attend and has instead put in a written argument.[2]On 17 October of last year he put in an IT1 for unlawful deduction of wages, refusal to pay expenses and stoppage of redundancy travel time. On 8 November, the Respondent, Merseyrail, put in its IT3. It urged that the expenses or redundancy payments, with which Mr Bellas was concerned, were not "wages", and, so Merseyrail argued, the Employment Tribunal had no jurisdiction and they referred to Section 13 of the Employment Rights Act , and to Section 27(2)(b) and 27(2)(d). In any event, they said, no deductions were improperly made.[3]Mr Bellas' IT1 was homemade, so to speak, and he then amplified it in a letter of 17 November of last year that was addressed to the Employment Tribunal, the last paragraph of which said:
"The articles concerning additional travelling time to and from work is part of my conditions of service which were protected under privatisation and therefore part of my contract of employment which I signed 22 years ago when I joined the railway and I believe that Merseyrail electrics management have broken in their actions."
He seemed to be making there a claim for breach of contract.[4]On 22 March of this year there was a hearing at Liverpool before the Chairman alone and on 26 March, the Decision was sent to the parties. Summary Reasons only were given; it was the Decision of Mr D Reed (sitting alone) and the Decision was that the application was dismissed, and the Summary Reasons say this:
"1. This was a preliminary hearing to determine whether the Tribunal had jurisdiction to deal with the applicant's claims. 2. Those claims were for non-payment of sums which the applicant claimed were due to him under his conditions of service. 3. Those conditions provided that he was entitled to a travelling allowance (i.e. a payment at his ordinary hourly rate for additional time spent travelling) and a payment representing additional travelling costs, in circumstances where he had been relocated as a consequence of redundancy. 4. I took the view that the payments were referable to redundancy. 5. A claim of unauthorised deductions from wages can only be brought in relation to certain payments. Payments referable to redundancy are expressly excluded from the ambit of the relevant legislation. 6. I therefore concluded that the Tribunal did not have jurisdiction to consider the claims of the applicant, which were dismissed."
That is the totality of the Summary Reasons.[5]On 19 April of this year, a Notice of Appeal from Mr Bellas was received at the Employment Appeal Tribunal and in paragraph 6 of it, which is intended to set out the grounds, he says:
"I took Merseyrail Electrics to the Tribunal on two issues. The first I understand why it cannot be heard, but the second issue on refusal to honour my contract of employment surely is a matter for the Tribunal to hear and make a judgment on. To dismiss my whole claim on the first matter is an error in law."
Very likely Mr Bellas was told by the Employment Appeal Tribunal that Extended Reasons would be needed if he was to pursue his appeal, and he applied to the Employment Tribunal to get those Extended Reasons.[6]On 1 May of this year, the Employment Tribunal refused Extended Reasons on the sole ground that they had not been applied for within twenty one days of the sending out of the Decision on 26 March. On 2 May of this year Mr Bellas appealed against that refusal and that is the appeal chiefly before us.[7]On 17 September, Mr Bellas indicated that he is unable to be here today, but, as I mentioned, he has put in a short written argument. We have, of course, discussed the matter between ourselves and we are of the view that it is arguable that the Employment Tribunal Decision failed to deal with the contractual side of Mr Bellas' case, as amplified in his letter of 17 November and as at least touched on, if not wholly particularised, in his original IT1.[8]We accept also that the argument is such as could, without real inconvenience, be addressed on the Summary Reasons as they stand, and that the appeal of 19 April can therefore proceed notwithstanding the absence of Extended Reasons.[9]As we see Mr Bellas' case on the Decision of 26 March to be arguable, we direct the Notice of Appeal of 19 April to go to a full hearing inter partes. The Respondent and Mr Bellas will need to agree the production of documents for the full hearing, which will need to include all relevant terms and conditions of Mr Bellas' service and any terms agreed in relation to his earlier redundancy or as to his movement from one place of work to another, either in consequence of, or to avoid, redundancy.[10]Given the relative resources of the parties, if production of documents is not agreed between them in good time before the full hearing, then it is to be the responsibility of the Respondent to see that the documents are produced in good time for the hearing. They must be supplied to the Employment Appeal Tribunal not less than ten days before the date fixed for the full hearing.[11]Beyond the possibility of the contractual side not being adequately dealt with by the Tribunal, there arises the question of what quite is meant by "any payment referable to the worker's redundancy" in Section 27(2)(d), and by "payment in respect of expenses incurred by the worker in carrying out his employment" in the section. These are questions of general importance and wide applicability. The case where, upon or to avoid his redundancy, a worker moves from one place of work to another on terms, for example, that his greater travelling costs are to be met for a period by his employer, are not unfamiliar and, as we say, of wide application.[12]The question also arises whether such payment of extra travelling costs, or other like expenses, are incurred "in carrying out his employment". It might be said that that contemplates that the expenses are actually part of the carrying out of the employment, but alternatively, it may be merely a preliminary outlay, incurred with a view to his putting himself in a position to begin employment. There may be analogies with the tax approach under which, broadly speaking, the Commissioners of the Inland Revenue and the Law take the view that ordinary travel to and from work is merely a consequence of the fact that the worker has chosen to live other than next to his place of work, and that the expense that a worker incurs going to and from work is thus not incurred in the course of employment. This is not an easy question in the particular context in which it here arises.[13]The questions, as we see it, are of some difficulty and importance and so we ascribe this full hearing to Category A, half a day. Skeletons are to be exchanged not less than fourteen days before the date fixed before the hearing.[14]As there are questions of wide application and some difficulty that will arise in the course of the case, we suggest that Mr Bellas, who has so far been in person, should, if the financial conditions permit, apply for legal aid and, for the reasons we have given, we will commend his case to the legal aid authority for receipt of legal aid because difficult and wide-ranging questions are likely to arise.[15]We do not hold out any great expectation that the Chairman's Notes will be substantial, because there is an indication in the papers that Mr Bellas has been told that they are not. However if any party does wish for Chairman's Notes to be made available, then, in the first place, they must make written application to the Registrar.