MR I R LEWIS v CORUS GROUP LTD [2003] UKEAT 0026_03_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0026_03_0702Case No Appeal No. EAT/0026/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR I R LEWISAPPELLANTCORUS GROUP LTDRESPONDENT
Before
His Honour Judge J McMullenDate 7 February 2003
[1]APPEARANCES For the Appellant MR PAUL DRAYCOTT (Of Counsel) Instructed by: Messrs Whittles Solicitors 23 Princess Square Albert Square Manchester M2 AER For the Respondent MR TIMOTHY PITT-PAYNE (Of Counsel) Instructed by: Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF24 OEE JUDGE McMULLEN QC This case is about Employment Tribunal procedure. We will continue to refer to the parties as Applicant and Respondent. It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Cardiff on 28 October 2002, Chairman Mr Geoffrey Davies, promulgated with extended reasons on 26 November 2002. The Applicant was represented there and here by Mr Draycott of Counsel. The Respondent was represented by a Solicitor who today instructs Mr Pitt-Payne. The issues[2]The Applicant claimed redundancy pay. What else he claimed is the subject of the present proceedings. The Respondent denied liability. The history of this matter reflects poorly upon the Employment Tribunal system and we will set it out.[3]The essential issue for the Employment Tribunal was to decide whether or not the Originating Application had properly been made including claims under the Disability Discrimination Act 1995 and the Employment Rights Act 1996. The Tribunal decided that it did not and regarded an attempt to amend it as making new claims rather than re-labelling existing timeous claims. The question for us is whether it erred in law in so doing. The facts[4]Our history of the events is necessarily tentative since there has been no hearing on the merits of this case. The Applicant was employed by the Respondent in the coke ovens of its plant in South Wales. The Applicant had been employed at Llanwern since February 1997. He had been off sick for a period of time and eventually decided that he would leave. His resignation was contained in a brief notice to the Respondent dated 3 April 2001which said this:
"I am writing to inform you that from 23 rd April I will be starting a new job at Tescos in Magor. So this letter is my notice. I am just wondering the position in regards to my redundancy and how will I sort in transferring my pension."
[5]The Applicant submitted an Originating Application dated 7 June which was presented on 11 June 2001. In the box when asked what his type of complaint was he said:
"No redundancy money. Total redundancy package to all Corus Employees."
In box 11 where he was asked to give the details of his complaint he referred to a document which he had attached and which was a letter to his union, ISTC. It is important to read this in full. It is accepted that this is the Originating Application:
"I am at the present time employed in the coke ovens at the Corus Llanwern Plant. Currently I am on the sick with a reocurring back problem with which my own G.P will not let me start back to work unless I can operate on light duties. I went to see both the human resource personnel and my shift manufacturing manager to see if this was possible. They both informed me due to the high level of sickness rate in the coke ovens at this present time it was not feasible. After considering my options I decided to try and find some sort of employment with a less highly manual content than that of the coke ovens. After many attempts I have a successful response from Tesco warehouse to be employed as a forklift operator. They informed me they would leave the position open until the 23 rd April 2001, after which they will readvertize the position. I went to see my shift manufacturing manager and human resource personnel to request being made redundant under the present conditions. I was informed that if I finished working in the coke ovens they would have to work overtime to cover my job, also at the present time no-one could finish with their redundancy due to the negotiations taking place. The only way I could terminate my employment was to resign my position in writing and forgo my redundancy package. Firstly, if I decided to stop at work I would be continuing on the sick for a quite a long time, as my G.P will not allow me to restart back to work, so I would have to be covered on overtime anyway. There are a few people in the sinter plant who have been fortunate enough to leave for other job opportunities with their redundancy package. I feel with my bank problem I am a special case as when I do look for a job in September after the coke ovens finish producing, my opportunities would be greatly reduced once future employers knew of my condition. I therefore had no choice but to hand my notice in writing to the human Resources Department so I could start my new job in April. I am just writing to see if you feel I deserve to have my redundancy package paid although I have tendered my notice to Corus."
[6]The Notice of Appearance provided by Mr Martin, the manager of Employee Relations at the Respondent, noted that the Applicant was paid about £16,000 a year plus 30% bonus and gave the following particulars of the ground on which he on behalf of the Respondent was to resist the application:(1) The claim is unjustified as the Applicant formerly resigned on 3 April to take up alternative employment on 23 April 2001.(2) The Respondent is not aware of any legislation supporting redundancy payments retrospectively after an employee formerly resigns.(3) The Respondent believes the claim to be frivolous due to the resignation.(4) The Respondent wished to have a preliminary hearing if the case is to be heard.(5) If the case is found to be frivolous the Respondent would be looking to recover costs associated with this Employment Tribunal submission.[7]The Applicant was assisted through his union by Messrs Whittles, Solicitors. On 28 June 2001, that is before the Notice of Appearance had been lodged, Whittles wrote asking the Employment Tribunal to provide the firm with a copy of the Originating Application since they had now been instructed on the Applicant's behalf. On 3 July 2001 the Tribunal acknowledged that letter but did not provide a copy of the Originating Application. On 10 July a further attempt was made by Whittles to obtain it. On 22 July the primary time limit for lodging the claims relevant to this case expired. On 27 July Whittles again wrote complaining that they had not received the Originating Application and on 30 July the Tribunal faxed a copy and apologised for the delay. Whittles had a conference with the Applicant on 21 August, and on 23 August faxed a letter seeking to amend the Originating Application to include claims of disability discrimination and constructive unfair dismissal. It was thus about a month late. This was refused by the Tribunal on 3 September. EAT Directions and the second appeal[8]An appeal was heard on 23 October 2001 before Mr Justice Lindsay P. and members. The judgment allowed the appeal and made directions for the further conduct of the hearing. These were that the matter should go ahead to the Employment Tribunal to decide first, having seen the exact form of the amendment, whether time should be extended and to deal with the procedural matters prior to a full hearing. Why are we dealing now with a further appeal so long after that direction? The unchallenged chronology indicates substantial delays some of which are due to applications on behalf of the Applicant and the Respondent and some are due to errors by the Employment Tribunal. For example, on 11 March 2002 a listing was made of the inter partes procedural hearing to take place on 18 June, pursuant to the Employment Appeal Tribunal's direction. However on the 17 June this was postponed because of the lack of availability in Cardiff of Tribunal members. It was re-listed for 28 October and took place on that day. Sadly however, the Employment Tribunal did not carry out the directions of the Appeal Tribunal due to lack of time, so that the matter is still in limbo being referred to a hearing on 3 March 2003 when it will decide, subject to our decision, on whether to extend time.[9]The Employment Tribunal decided that the amendment sought was more than a re-labelling and was the presentation of new claims. Thus it ought to have considered whether it was proper to extend time according to the different jurisdictional provisions applying respectively under the Employment Rights Act and the Disability Discrimination Act. The Applicant appeals against the decision. Submissions[10]Mr Draycott has argued that the Tribunal made a number of errors of law. He contends in a skeleton argument which we have pre-read and in a Notice of Appeal that the Tribunal incorrectly adjudged the application to be presentation of new claims when it was properly a re labelling - See Selkent Bus Co Ltd t/a Stagecoach Selkent -v- Moore [1996] IRLR 661 and Jesuthasan -v- London Borough of Hammersmith & Fulham [1998] IRLR 372. The approach to this case must be based upon a construction of the Originating Application, he submits, and on that construction this amendment is a refinement: a re-labelling rather than the presentation of a new claim. The Tribunal erred in considering the termination letter and the witness statement of the Applicant in the bundle. He contends that the Tribunal misconstrued the holding in Burns International Security Services (UK) Ltd -v- Butt [1983] ICR 547 and in attributing the Applicant's subjective intention to the writing of the letter and finding against him by reference to his statements. It is further contended that the Tribunal relied upon an authority Walker -v- Wedgewood & Sons Ltd [1978] ICR 744 which was not before the Tribunal and the Tribunal failed to give an opportunity to the advocates to make submissions upon it if it was going to be directed by it. That, he contends, is breach of the principle in Hereford and Worcester County Council -v- Neale [1986] IRLR 168 CA as recently followed in Albion Hotel (Freshwater) Ltd -v- Maia E Silva [2002] IRLR 200 EAT.[11]For the Respondent it is contended by Mr Pitt-Payne that the application is truly a submission of fresh claims. Four matters are missing from the Applicant's Originating Application which would require to be the subject of new factual assertions. These include the duty to make reasonable adjustments, a knowledge in the Respondent that the Applicant was disabled, a knowledge of a refusal to allow the Applicant to undertake light duties and a claim of constructive dismissal because the Applicant refused the opportunity to take up light duties. Conclusions[12]In our judgment, the submissions of Mr Draycott are correct. The Notice of Appearance has to be the sole source of a review by the Tribunal in circumstances such as this. We accept that if an Originating Application refers to another document it will of course be incorporated expressly. If it impliedly refers to another document, or to something said at a meeting, that too, or the substance of it, would be incorporated into the Originating Application. However, in general terms the principle which should apply is that the Tribunal should look at the Originating Application any such express or implied references and consider whether an application to amend involves a new claim or mere re-labelling.[13]As we construe the document we find the following to be asserted:(1) The Applicant had a recurring back problem.(2) He could not work at Llanwern unless given light duties.(3) His request for such was refused.(4) He had no alternative but to resign(5) He should be entitled to the benefits of the Redundancy package.[14]Those illustrate claims for redundancy pay, for constructive unfair dismissal and, under the Disability Discrimination Act, that he had been treated less favourably, that he had been subjected to a detriment and that the Respondent had declined to make a reasonable adjustment for him. It is of course not necessary for us to make any comment about the strength of any of those but a simple reading of the document written by a manual worker without advice except from his father indicates that he was putting forward those claims.[15]In our judgment therefore what occurred when Whittles wrote, having been directed by the Employment Appeal Tribunal to put their proposal in writing, was simply a way of giving further details and reorganising the handmade Originating Application into a form that would be justiciable.[16]Throughout Mr Pitt-Payne's submissions here and below, it has not been contended that there is any prejudice to the Respondent in allowing this matter to go forward. We say that since if we are wrong on our construction of the Originating Application, the issue may arise as to whether or not it would be just and equitable to extend the limitation period. We accept Mr Pitt-Payne's submission that that matter has yet to be determined by the Employment Tribunal and we regret that the Employment Appeal Tribunal's direction has still not been complied with.[17]At the outset of this judgment, we indicated our grave concern over the delays in this case. We are acutely conscious of the judgments of the Court of Appeal particularly in Tran v The Greenwich Vietnam Community Project [2002] ICR 1101 and of the European Court of Humans Rights in Somjee v UK [2002] IRLR 881 in which criticisms are made of the Employment Tribunal and Employment Appeal Tribunal for delays. We ventilated with the advocates that the delay in the Cardiff Employment Tribunal office in failing to send the Originating Application to Whittles may well have been the cause of the problem.[18]As a matter of chronology, had Whittles done exactly as they did a month earlier, no issue would arise since the Applicant would have been entitled to present new claims. We recognise that we have a duty under Section 6 of the Human Rights Act 1998 to avoid violations of an Applicant's Article 6(1) rights to a trial within a reasonable period. We are also conscious that a breach of the Applicant's rights by a public authority may sound in a claim by him if brought within the appropriate time period. A practical solution is that we could ourselves decide this matter on the basis of the extension of times in the respective statutes. This would at a stroke cure any further delays and any injustice which the Applicant might otherwise suffer for the delay at the hands of the Cardiff Employment Tribunal, both initially and in postponing the case once and then failing to allocate enough time on 28 October.[19]Mr Pitt-Payne sensibly sought time to argue this point but we are grateful to him for the submissions which he made on the hoof. They have clarified our role in this. As we have said we decide the point on the re-labelling issue which it is common ground would result in the matter going ahead to a full hearing without recourse to the Human Rights Act 1998.