DR LAWRENCE SINGER (FAMILY HEALTH CARE) v MS D R ORR [2001] UKEAT 917_00_1501

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 917_00_1501

Case No Appeal No. EAT/917/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR LAWRENCE SINGER (FAMILY HEALTH CARE)APPELLANT

MS D R ORRRESPONDENT

Before

Mr Justice Lindsay

Date 15 January 2001

[1]APPEARANCES For the Appellant MR C GLYN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Dr Lawrence Singer, in practice as "Family Health Care". The original proceedings were brought by Ms Doris Orr against Dr Singer as Family Health Care. This morning we have been greatly assisted by argument by Mr Casper Glyn under the ELAAS system, who has argued on behalf of Dr Singer. On 18th November 1999 Ms Orr presented an IT1 for unfair dismissal. In her Box 1, which is headed "Please give the type of complaint you want the tribunal to decide (for example: unfair dismissal, equal pay). A full list is given in Booklet 1. If you have more than one complaint list them all.", all that was written was "unfair dismissal". The dismissal in question was alleged to have taken place on or about 7th October 1999. Ms Orr had been employed only from 7th September 1998 to 7th October 1999, in other words, only for a year and a month, and she was over 65 years of age. But in Box 11, headed "Please give details of your complaint. If there is not enough space for your answer, please continue on a separate sheet and attach it to this form", inter alia, Ms Orr wrote this:

"ACAS have advised me that because of my date of birth I cannot have him for unfair dismissal but they also advised me that:- 1. He should pay one weeks salary in lieu of notice 2. He should pay outstanding holiday pay 3. He should pay me for 3 days worked on Sept 1st, 2nd or 3rd – not 2 (advised by my Bank) 4. To give him 7 days to comply. I delivered these instructions by hand on Tues 9.11.99. He has not answered and on checking with my Bank, he has not paid any monies into my Account."

[2]There is an undated IT3 (I am not saying the original was necessarily undated, but it is undated in our version) in which Dr Singer says this:

"I believe the allegation of unfair dismissal does not apply in this case for the following reasons: 1. Doris's employment with the practice was on a temporary basis only and she was advised of this both prior to her commencement with us as well as periodically throughout her employment. 2. Doris worked at the practice for less than one year and therefore she is not covered by legislation. 3. Doris is over the age of 65. 4. Doris on her submission, admits that although her application is for unfair dismissal she cannot "have him" for unfair dismissal because of her date of birth. With regard to moneys claimed from the practice for holiday's etc., Doris was asked to contact the practice manager, who, as she is well aware, deals with all of the financial aspects of the surgery, to agree on any amounts that might be outstanding to her. A copy of the letter that she sent is enclosed. No mention of any outstanding money is made."

It is notable there that there is no mention of any cross claim or set off raised by Dr Singer.

[3]On 11th May 2000 there was a hearing at the Employment Tribunal, both sides appearing in person. On 2nd June 2000 summary reasons were given by the tribunal, which were sent to the parties. The decision was:

"The unanimous decision the Tribunal is that the Respondent should pay the Appellant damages for breach of contract in the sum of £124.80 in lieu of notice of termination to which she was entitled."

The summary reasons say:

"3 The issues for the Tribunal are as to- (i) whether the Applicant was entitled to be paid for 3 September 1999; (ii) whether the Applicant was entitled to holiday pay in lieu of taking holiday to which she was entitled; (iii) whether the Applicant ought to have been given notice of the termination of her employment."

Under the heading " The Tribunal's conclusion ", in paragraph 5(b), the tribunal says:

"Dr Singer did not dispute that, by virtue of section 86 of the Employment Rights Act 1996, the Applicant was entitled to one week's notice of termination of her employment. He accepts that she was not given such notice and would be entitled therefore to the sum of £124.80 as damages in lieu of notice."

In paragraph 5(f), the tribunal say:

"In all the circumstances the Tribunal concludes that there has been no wrongful deduction of wages and the Applicant's complaint in this respect is not well-founded. However, she is entitled to damages for breach of contract in the sum of £124.80 in lieu of notice of termination to which she was entitled."

[4]On 18th July 2000 extended reasons to exactly the like effect were prepared and sent out to the parties. They contain a point, as had the summary reasons, to which we need to give attention, because it relates to set off or counterclaim.

(d) and (e) of the extended reasons:

"(d) As regards holiday pay, the Applicant was unable to give particulars of the holiday which she had taken. The Respondent's records indicated that she had taken 22 days' holiday over the relevant period instead of the 15 days to which she was entitled. The records were kept by an independent member of his staff. Accordingly, the Tribunal is not satisfied that the Applicant has made out any case for an entitlement to holiday pay or a wrongful deduction in respect thereof. Dr Singer asserted in evidence that, having been allowed to take seven days' holiday more than she was entitled to, the Tribunal should in effect 'set off' her admitted entitlement to £124.80 in lieu of notice of termination. He invited the Tribunal to make no award of damages on the basis that he would waive the balance of two days' recovery of holiday pay to which he claimed he would then be entitled. (e) The Tribunal have considered their powers to entertain an employer's claim within the meaning of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The claim by Dr Singer has not been presented within the prescribed period of six weeks beginning with the day on which he received a copy of the Originating Application in this case. The Tribunal is not satisfied that it was not reasonably practicable for the complaint to be presented with that period. Accordingly, the Tribunal has no jurisdiction to entertain an employer's claim by Dr Singer."

I was reading there from the extended reasons sent to the parties on 18th July 2000.

[5]In the meantime, on 16th June 2000, Dr Singer had lodged a Notice of Appeal deriving, in effect, from the summary reasons that had already been given. In the Notice of Appeal he takes up a complaint about set off or counterclaim. He says this:

"The application to the industrial tribunal Box 1 "type of complaint" was for "unfair dismissal"

. Box 1 stated that all complaints were to be listed. No other complaints were listed. In Box 11 "details of complaint" reference was made to other matters as well as the complaint referred to in the tribunal (Box1) and the tribunal has considered one of these at the hearing. My written response has much focussed on Box 1 believing that this is the complaint in my reply needing a response. I did not give details of the overclaiming of holiday pay by the claimant as Box 1 had stated that all complaints should be inserted in that box and there was only inserted "unfair dismissal". The tribunal has ruled that my submissions to them were too late to be taken into account within the six week period (Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994) but I submit that it is unreasonable for the tribunal to have expected a response to a matter that was not stated in the appropriate box (Box 1) of the originating application. A claim for payment in lieu of notice was not stated in Box 1 and the decision of the tribunal to hear and additional complaint at the 11th May hearing was one of which I did not have appropriate notice. Hence if the tribunal decided to hear this claim then the six week rule of the Employment Tribunals Extension of Jurisdiction Order should not have been applicable. Box 1 clearly stated that all complaints should be stated therein as I believed that the complaint to be heard was that of unfair dismissal, a complaint that was the one to which I responded and was fully able to rebut. I therefore invite the Appeals Tribunal to find that the Employment Tribunal has erred in law in this case in the interests of justice."

[6]Well, it is true, of course, that Box 1 of Ms Orr's complaint does mention only unfair dismissal. It also is quite plain that unfair dismissal was, so to speak, a non-starter. Box 11 of the IT1 recognised that, as we have already cited. Ms Orr said:

"ACAS have advised me that because of my date of birth I cannot have him for unfair dismissal."

But that was followed by a 'but': "But they also advise me …" and there then there was then reference to the types of additional claim which Ms Orr was making, in other words, that the doctor should pay a week's salary in lieu of notice and holiday pay.

[7]Within the broad manner in which claims are framed and dealt with in the relatively informal circumstances of the Employment Tribunal, that description within Box 11 of types of monetary claim can properly be taken to be a claim for salary in lieu of notice and for holiday pay. But Dr Singer did not oppose it in his IT3 or cross-claim or seek a set off in his IT3. Indeed, salary in lieu of notice was not opposed, as we have already cited. The only argument to reduce its impact was the holiday money set-off point. So the question arises – was the Employment Tribunal wrong in law to exclude the employer's claim in the way that they did? In order to answer that, one has to look at the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 , at pages 1282-1283 of Butterworths Employment Law Handbook , Ninth Edition; it says this:

"8 An employment tribunal shall not [ our emphasis ] entertain a complaint in respect of an employee's contract claim unless: - (a) it is presented at a time when there is before the tribunal a complaint in respect of a contract claim of a particular employee which has not been settled or withdrawn;" [ Well that, if there had been a presentation, would have been satisfied. ] (b) it arises out of a contract with that employee; and (c) it is presented- (i) within the period of six weeks beginning with the day, or if more than one the last of the days, on which the employer (or other person who is the respondent party to the employee's contract claim) received from the tribunal a copy of an originating application in respect of a contract claim of that employee; or (ii) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable."

Looking at 8(c)(ii), reasonable practicability, as we have already cited, the tribunal held against Dr Singer as to reasonable practicability and, indeed, it is difficult to see why it was not reasonably practicable for him to have presented a cross-claim earlier than he did. Reasonable practicability is quite a stern test and the tribunal held, on the facts, that he failed it. As a conclusion on fact it is not one that is open to us to look at.

[8]The condition about six weeks in 8(c)(i) plainly was not satisfied. The IT1 was presented around about the 18th November 1999. There is no mention of an employer's contractual claim in the IT3 and it looks as if, indeed, there was no mention of an employer's contractual claim until the hearing on 11th May 2000. Indeed, strictly speaking, there was no formal presentation of a claim at all.

[9]The Rule that is embodied in paragraph 8 of 1994 Jurisdiction Order that we have cited maybe thought to be hard on employers but if they wish to raise a cross-claim they must do so as the Rule prescribes. I revert to opening words: "An employment tribunal shall not entertain a complaint … unless"[ Our emphasis ] then the conditions are then set out. The employer has to raise his claim if: "(b) it arises out of a contract with that employee" and so it is not the nature of the claim stated against him in Box 1 of the IT1 that is to trigger to a cross-claim; the employer, if he has any claim that arises out of a contract with that employee, whether or not it is in response to Box 1 or is any other form of contractual claim which he wishes to deploy, has to raise it in the manner and within the period prescribed by Regulation 8. The employer has to raise the claim if it arises out of a contract with the employer, whether it arises out of the employee's claim or not. So viewed, it seems to us, there is here no arguable point of law. The claim which Dr Singer wished at the hearing to raise was one that was already out of time within the provisions of subparagraph (c) of Rule 8 and, on investigation into the facts, reasonable practicability was an issue which he lost. There is, as it seems to us, no error of law involved in the tribunal's decision and, notwithstanding Mr Glyn's helpful argument, we hold that even at this preliminary stage, seeing no arguable point of law, we must dismiss the appeal.