MR J R EDWARDS v (1) THE SECRETARY OF STATE FOR TRADE & INDUSTRY (2) MELSTAN INDUSTRIAL CHEMICALS LTD [2002] UKEAT 1117_01_1802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1117_01_1802Case No Appeal No. EAT/1117/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J R EDWARDSAPPELLANT(1) THE SECRETARY OF STATE FOR TRADE & INDUSTRY (2) MELSTAN INDUSTRIAL CHEMICALS LTDRESPONDENT
Before
Mr Justice LindsayDate 18 February 2002
[1]APPEARANCES For the Appellant MR ANDY GEORGE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Mr J R Edwards in the matter J R Edwards v(1) The Secretary of State for Trade and Industry(2) Melstan Industrial Chemicals Ltd . Today, of course, the Respondents do not appear but Mr Edwards has appeared by Mr George under the ELAAS Scheme and again we are grateful to him (I say "again" because we have had an earlier address from Mr George that was very fruitful) and so also should Mr Edwards be grateful to Mr George.[2]The story begins with an IT1 on 5 February 2000 for: "Discrimination." It was age discrimination that Mr Edwards asserted. On 18 December 2000 his employment ceased. It transpired that his employer had been put into liquidation (on 20 December 2000, I think) and he had been told that as he was over sixty five he was not eligible for payment of redundancy by reason of his age. The Company, Melstan, put in no Notice of Appearance but the Secretary of State became the First Respondent.[3]On 30 May 2001 a solicitor assisting Mr Edwards wrote to the Employment Tribunal to say:
"I would be grateful if you would please place this letter before the Chairman for his consideration prior to the hearing listed for tomorrow. The issue in this case is Mr Edward's entitlement to a redundancy payment following the insolvency of his former employer. The Secretary of State for Trade and Industry submits that he is not due to the fact that Mr Edwards was over 65 at the relevant date. I would refer the Chairman to paragraph 44 in the Redundancy section of Volume 1 of Harvey, a copy of which is attached. At paragraph 44.02 it is noted that a case on this matter was referred to the ECJ in 1998 (Simpson v British Timken, case number 1200143/98). Given that this case was referred some time ago I would imagine that a decision is likely to be imminent. I have endeavoured to ascertain the current position with the ECJ but so far I have been unable to do so. In the circumstances, and having discussed the matter with Mr Edwards, I submit that it would be in the interests of justice to stay proceedings in his case pending the ECJ's decision."
The hearing went ahead the next day, 31 May 2001. The Secretary of State put in written representations and, as I mentioned, Melstan had entered no appearance and did not appear. On 11 June Summary Reasons were sent to the parties. Mr Edwards then requested Extended Reasons. Even before he got them, on 25 June 2001 he put in a Notice of Appeal. On 21 August 2001 Extended Reasons were sent out by the Tribunal. It was the Tribunal at Nottingham under the Chairmanship Mr T R Capp. The decision was:
"The unanimous decision of the Employment Tribunal is that the applicant does not have the right to a redundancy payment."
On 14 September 2001 further and better particulars of the Notice of Appeal were given. The Tribunal had held Mr Edwards to have attained sixty five on 11 August 1999. They said in their paragraph 3:
"The Applicant claims a redundancy payment. The Secretary of State contends that Mr Edwards is not entitled to such a payment as he was over sixty five on the relevant date."
In their paragraph 4(c) they say:
"Just before Mr Edwards reached the age of sixty five, he was given the opportunity to continue his employment and decided to do so. He was age sixty six when he was dismissed."
They refer to Section 156 and Section 145 of the Employment Rights Act 1996 . On the face of things and simply looking at British legislation, the provisions of those Sections of the Employment Rights Act appear to deny Mr Edwards any right to a redundancy payment.[4]Mr Edwards in the Notice of Appeal of appeal raises two issues. The first one is this:
"The Tribunal's Decision not to adjourn the case pending a Decision in the case Simpson –v- British Timpkin was perverse."
He then explains why that was so. As to that, we think that is an appropriate ground to go forward to a Full Hearing. We have already taken some steps to try to find out what has happened to Simpson v British Timken . Unfortunately, in the time available, it has not yet been ascertained what has happened to the case. We think an opportunity ought to be afforded to Mr Edwards for us to find out what did indeed happen. Moreover, the case might give rise to quite what are the principles of law that are applicable where a decision in the European Court of Justice is awaited which may touch the particular individual's case. So we think it appropriate for that to go forward to a Full Hearing.[5]The second ground concerned the first protocol. This is a Human Rights Act argument and raises the question of whether Mr Edwards has been in effect denied a possession. The H uman Rights Act 1998 Part II, The First Protocol, Article 1, Protection of property states: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. It is easy enough to see an argument that this case of Mr Edwards does not involve his being deprived of any possession. There are some possessions which become valueless simply because of the events that surround them. A life policy paying £10,000, let us say, if a man shall die before 1 June has a value in May, a rather lower value in late May and on 2 June might have no value at all if the man had survived. He has not lost a possession. It is just that the possession that he had had inherent within it the fact that it might become valueless depending on events. The same analysis could be applied to, let us say, a betting ticket or a lottery ticket.[6]Mr George argues, and we see force in the argument, that here the very factor that causes the loss of value is itself discriminatory, discriminatory in terms of age. There are analogies in other parts of the law, for example, in considering directives on discrimination where, if the statute providing an exception is itself based on discriminatory factors, then the statute cannot be used as a defence. We see some possible force in that argument. We certainly do not say it is not arguable. We think that that second ground also should go forward to a Full Hearing.[7]The very fact that there is inherently some delay before the Full Hearing will, of course, give an opportunity to find out what has happened to Simpson v British Timken . Perhaps also, as Mr George pointed out, it may be that in the meantime the Crown will have brought forward whatever justification it had in mind to refer to in the Employment Tribunal in Harvest Circle v Rutherford .[8]We allow both points to go forward to a Full Hearing. When the matter comes back it would seem to be likely that it is a case of some complication so we will mark it as Category A. Skeleton arguments are to be exchanged between the parties and sent to the Employment Appeal Tribunal not less than fourteen days before the hearing. I will ask the Associate to make a note that, if and when, we find out the fate of Simpson v British Timken , we inform the parties what it is. Subject to that - Mr George, there is nothing else we can do as this stage, is there? Sir, might I repeat for the avoidance of doubt, that there was a submission I made as to a third ground of appeal that was not contained in the notice. That was, that in the event that it proves that Simpson is a red herring such that although the Tribunal erred, in fact it made no difference, that had they adjourned, it later found the case had died for whatever reason, I make the alternative submission that they gave insufficient reasons. …………………[inaudible] how they didn't consider the merits of the case as we now have in Harvest Circle v Rutherford the way that such cases should have been ………… You would need leave to amend the Notice of Appeal would you? Yes, sir. Can you do that within fourteen days? Yes, sir. We give you leave to amend the Notice of Appeal within fourteen days, to add that alternative ground, as an alternative ground to number one. In this case I do not think I need to have it sent to me, it can just go forward. That too can go to a Full Hearing. [The EAT's later inquiries suggest (though it should be verified) that the Simpson v British Timken case at the ECJ was not pursued and that no substantive decision was ever given in it.]