MRS A RHODEN-BURKE v 1) LONDON BOROUGH OF LAMBETH 2) CAPITA BUSINESS SERVICES LTD [2002] UKEAT 1482_01_1801

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1482_01_1801

Case No Appeal No. EAT/1482/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS A RHODEN-BURKEAPPELLANT

1) LONDON BOROUGH OF LAMBETH 2) CAPITA BUSINESS SERVICES LTDRESPONDENT

Before

Mr Recorder Langstaff

Date 18 January 2002

[1]APPEARANCES For the Appellant MR D MASSARELA (Of Counsel) Instructed by: Messrs Deighton Guedella Solicitors Top floor 30/31 Islington Green London N1 8DU For the Respondent Mr J Donovan (Of Counsel) Instructed by: London Borough of Lambeth Borough Solicitors Office Lambeth Town Hall London SW2 1RW MR RECORDER LANGSTAFF QC We propose to allow this appeal against a decision made at an interlocutory matter on 23 November 2001 at the London (South) Employment Tribunal. Because of the hour, as the parties accepted when the case began to be argued, the reasons will be short. They are capable of expansion but essentially our reasoning is this. The Chairman directed that a time point apparent on the face of the documents should be determined as a preliminary issue. It is whether all or any of the claims submitted by the Applicant are out of time, and in relation to any that are found to be out of time, having regard to the relevant principles for extending time limits in respect of each such claim whether the time should be extended.

[2]The time limit point, despite the history of this claim, had not been explicitly raised before as a knock out blow. The Chairman in making that direction was exercising case management powers under the Tribunal's rules of procedure. Those powers are matters of discretion. We are not entitled in this Tribunal to interfere with the exercise of a discretion unless the Court or Tribunal below exercise the discretion under a mistake of law, disregard principle, misapprehension as to fact, or where they take into account irrelevant matters or fail to take into account relevant matters – see paragraph 32 of Noorani v Merseyside Tec Ltd

[1999] IRLR 184

[3]However, it seems to us, on the basis of the submissions we have heard and our review of the material before us, that implicit in the Chairman's decision was a view that the matter could be dealt with at a preliminary hearing without any extensive trawl into the evidence which would properly be the subject matter of a full hearing. There would be no point in having a preliminary hearing if the evidence to be considered was similar in extent to that which a full hearing would consider.

[4]The Chairman records her decision in these terms at paragraph 9:

"… I decided that the question of whether or not the application was in time could potentially produce the "knock out point" in the case and could be dealt with by hearing discrete parts of the evidence. On the face of it the claim appeared to be potentially out of time and therefore I considered it important for a Tribunal to consider its jurisdiction in those claims before looking at the substantive complaints"

[5]That, we think contains one implicit understanding: that whether or not the claims were out of time could be determined if not by reference to a fixed date at least to the extent that the claims must be out of time whatever fixed date was chosen. Contrary to what the Chairman said, however, the claims were not out of time "on the face of it" in that in paragraph 4 of her IT1 the Appellant gave the dates of her employment as being from September 1985 to "date". (The date being 25 April 2000.)

[6]She there complained of unfair dismissal that seems a curious complaint to make given that she complained that her employment was continuing at the date of her IT1. Be that as it may we think that the problem arises out of the nature of an agreement which is central to this case.

[7]That agreement is, at least to an extent, recorded in a letter of 8 September 1994. It provides for a five year period within which the employee may return to work after giving birth and provides that she must give three months notice within the five year period. The Council will then make every effort to find a similar job on the same grade as the previous post. What happens if no job is found is specifically then dealt with. That is:

"… consideration will be given to offering you a temporary job on the same grade", and "this stage you can raise any question about arrangements concerning your return to work with your trade union."

[8]It is not on the face of it clear at what time the employment is to be treated as determined. This may be contrasted so far as the contract is concerned with specific provisions on the first page in the first two paragraphs underneath the heading of "The five year option."

[9]Accordingly the date at which the contract of employment ceased is a matter for construction of the contract which has to be informed by some evidence. That evidence is likely to be evidence of the factual matrix in which the contract was made, and it may be a conversation or practice since. But it appears to us, just as it appeared to his Honour Judge Clark and the Employment Appeal Tribunal in an earlier appeal to them from an interlocutory decision of the same Tribunal, that that is a complex matter. When we first viewed the contract today we thought as did the Chairman that the construction of it might be a very discrete matter. On reflection, albeit brief, we agree and adopt HHJ Clark's assessment of it as complex. Indeed we think on reflection that Mr Massarella was too modest in his ambitions for his case in describing it as a situation which one "could not rule out" live evidence. It seems on reflection to us that it is a case in which live evidence will be critical, or it may well be critical.

[10]Given that, and given the centrality of that issue to all the issues apparently raised by the complaint, resolution of the time issue is likely as we see it to give rise to a hearing of most of the evidence that would be heard where the claim to proceed as a full merits hearing. If that is right as we think it is then it negates the implicit basis upon which the Chairman determined that she should order a preliminary hearing.

[11]We therefore think that she is wrong in two respects: first in saying in paragraph 9 that the matter could be dealt with by hearing discrete parts of the evidence if by that she intended (as we think she did) to describe relatively small and five parts of the evidence compared to the evidence as a whole. Second, as we have pointed out "on the face of it" the claims might well have been in time and therefore that comment, although colloquial, we think may indicate a misapprehension of the document before her, the IT1.

[12]We had three arguments addressed to us by Mr Massarella on behalf of the Appellant. The first was that the decision of this Tribunal earlier on 1 March 2001 given by his Honour Judge Peter Clark precluded this decision by the Employment Tribunal. We do not think it did, because there was then no knock out point which the Preliminary Hearing then suggested would have dealt with except for the supposed potential knock out blow in relation to the construction of the contract. We are fortified by thinking that on that issue we have come to the same conclusion as did this Tribunal earlier and we think that the Chairman perhaps ought to have had that particular passage more clearly in mind in exercising the discretion that she did. But we observe, however, that on the previous appeal the issue of time limits was before the Employment Appeal Tribunal. It was referred to in paragraph 3. If no point was made to this Tribunal on that occasion in terms, it was hinted at, any rate, in the skeleton argument of the Respondent. This Tribunal did not choose to make any order directing nor any judgment suggesting that there might be a Preliminary Hearing of such a point notwithstanding that might have been thought to be of obvious significance and we draw comfort from that, too, in thinking that the emphasis of the previous Appeal hearing was on proceeding to a full and not to any preliminary determination.

[13]He secondly made the point that in order to determine the issues there will need to be a very considerable investigation of evidence amounting nearly to a hearing of the whole claim and therefore the supposed advantage of the Preliminary Hearing (that it could deal with a discrete issue) will be negated. We agree..

[14]Finally he urged us that it would be in breach of the overriding objective to hold a Preliminary Hearing because it would lead to further undesirable delay in a case which has already been substantially delayed. We can understand the general content of that. We do not think it has particular force when one of the possible consequences of this interlocutory ruling may be that a hearing set for 25 January will be set aside if it cannot be utilised for a full hearing of all issues. It seems unlikely to us therefore if there would be any significant expedition gained by not having the preliminary point dealt with.

[15]For the Respondents Mr Donovan makes three points. He says and we agree that the Employment Tribunal's order is capable of giving rise to a knock out point. It is only in such circumstances, according to copious case law which need not in this judgment at this hour be set out in detail, that a preliminary point should be heard. Secondly, he argues that only a limited enquiry would be needed. Beyond that there would no need to investigate further. It is on that basis as I have indicated that we think that the Tribunal below was in error and upon which we have allowed this appeal. Thirdly he argues that we have no right to interfere with the judgment below because it was an exercise of discretion in case management powers. We have indicated the basis upon which we think the law permits us to do so and we do.

[16]We therefore direct that this appeal be allowed and that the Employment Tribunal be invited to consider as a matter of some urgency the utility of the hearing presently scheduled for 25 January, and to proceed as soon as may be to a full merits hearing at which the issues of the knock out issues of time limits may be heard and determined in the context of the evidence as a whole.

[17]The unsuccessful Respondents made an application for leave to appeal. In support of it Mr Donovan makes two points. First he argues that the construction of the letter relating to return from maternity leave is capable of very simple construction and that is indeed the only sensible construction of it.

[18]I think that on reflection when pushed in argument on that he second thoughts, but be that as it may, it seems to us that it is not a simple and straightforward matter and as we indicated earlier requires a consideration of the evidence and does appear to us to be central to the claims made by the Appellant.

[19]The second point he raises is that although paying lip service to the principles in Noorani v Merseyside Tec Ltd the decision of this Tribunal has in effect re written the exercise of Employment Tribunal's discretion. To the contrary, we have endeavoured to apply certain of those principles and to establish no new one, and for that reason we decline his application. This case raises no controversial principle of law.