MR R BROWN v FIRST SECURITY (GUARDS) LTD [2003] UKEAT 0364_03_1510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0364_03_1510Case No Appeal No. EAT/0364/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R BROWNAPPELLANTFIRST SECURITY (GUARDS) LTDRESPONDENT
Before
His Honour Judge J R ReidDate 15 October 2003
[1]APPEARANCES For the Appellant MISS ANNA BEALE (of Counsel) Instructed by: Messrs Johns & Saggar Solicitors 223A Kentish Town Road London NW5 2JT For the Respondent MR EDMUND WALTERS (of Counsel) Instructed by: Messrs L Bingham & Co Solicitors Chancery House 53-64 Chancery Lane London WC2A 1QU HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at London (Central) on 3 February 2003. The decision was promulgated on 27 February. The relevant part of the decision was that in case number 2204653/02 the Applicant's complaint was dismissed on the grounds the Tribunal had no jurisdiction to determine them, they having been presented outside the prescribed time limit.[2]The issue on this appeal turns on whether or not either of the two letters sent on behalf of the Applicant Mr Brown to the Tribunal should have been considered as an Originating Application. The Tribunal held that neither letter could be so regarded.[3]The factual background to the case is this. Mr Brown commenced employment with Rentokil on 17 March 1995. On 21 April 1999 his contract of employment was transferred to Chubb Security under the provisions of Transfer of Undertaking (Protection of Employment) Regulations 1981 ("TUPE"). That contract was further transferred to the Respondents, First Security (Guards) Ltd on 1 December 2001.[4]On 23 April 2002 Mr Brown submitted an Originating Application to the Employment Tribunal in which he asserted that there had been an unlawful reduction in his wage and non-payment of wages. The application was in fact eventually disposed of by withdrawal.[5]On 10 May 2002 the Respondents entered a Notice of Appearance to the Originating Application and thereafter, on 29 May, Mr Brown resigned from his employment with the Respondents.[6]On 1 July 2002 solicitors acting on behalf of Mr Brown wrote to the Employment Tribunal in a letter headed " Re: Mr Roger Brown – v – First Security Guards Ltd Case No. 2202109/2002 " (that is to say, the reference number of the case commenced on 23 April), which begins thus:
"We act on behalf of the above-named Applicant. Our client informed us that on 29 th May 2002, he was left with no alternative but to leave the employment of the Respondent. Our client has given us instructions to apply [to the Chairman of the Tribunal] for leave to amend his complaint to add the following claims (arising from the same facts as pleaded before that caused our client to suffer personal injury and has had to take time off sick)"
There were then 8 paragraphs of grounds set out and the letter concluded:
"We await to hear from the Chairman of the Tribunal on our client's Application for leave to amend his Complaints. Thank you."
[7]On 17 July a letter was written in response on behalf of the Regional Secretary of Tribunals in these terms:
"Thank you for your letter of 1 July which has been referred to a Chairman of the Tribunals, Miss Potter. As the allegations contained in your letter relate to events after the date of your existing Originating Application, please include the new allegations in a fresh Originating Application and then apply for the two cases to be consolidated."
No issue is taken as to the correctness of the decision apparently there taken, that an application could not be made to amend to add matters arising after the date of the Originating Application.[8]The next thing that happened was that on 13 August 2002 solicitors acting for Mr Brown wrote a further letter confirming receipt of the letter of 17 July and apologising for delay in submitting a fresh Originating Application to consolidate the two cases together. The letter continued:
"We are taking our client's instructions and will lodge the new application shortly. Our client will be applying to the legal services commission to extend the legal help available to him so that we may prepare a fresh Originating Application."
[9]On 27 August the solicitors wrote again:
"Further to our letter of 13 th August 2002, we attach a copy draft of fresh grounds of complaints, to be attached to our client's fresh Originating Application. A copy of the attached has been sent to our client by post, for his approval and signature. As soon as it approved and signed by our client, we will fax you a finalised copy with fresh Originating Application. We have not received an extension to our client legal aid to fund further work on this case. We will advise you of progress in this regard."
Enclosed with that was a document giving the case number of the old case and headed " Amended Grounds of Complaints ".[10]On 28 August the three month time limit ran out. On 11 September the Regional Secretary for Tribunals wrote chasing, saying nothing further had been heard and a further chaser asking for a reply on 24 September was sent on 17 September.[11]Mr Brown, who had by this time parted company with his solicitors, wrote to the Tribunal on 13 September, that letter evidently not having been received by the time the letter of 17 September was written. On 23 September he sent a new letter enclosing a new Originating Application. On 25 October a response was lodged to that and then following a hearing the decision holding that this application was out of time was sent to the parties, as I have said, on 27 February.[12]On behalf of Mr Brown it has been submitted that one or other of the two letters of respectively 1 July and 27 August ought to be treated as a fresh Originating Application. In support of that submission we were referred to a number of cases. The first of those in terms of time was Smith v Automobile Proprietary Ltd [1973] 2 All ER 1105. In that case Sir Hugh Griffiths as Chairman of a panel of the National Industrial Relations Court said this at page 1107:
"Be it observed that there is no requirement that any particular form [of Originating Application] shall be used. In fact, for the convenience of litigants a form has been prepared and is available throughout the county at employment exchanges and at the offices of the tribunals. In the ordinary course of events, when people become more familiar with these regulations and the practice of the court, one would hope that this form will be used by litigants when commencing their application; but we repeat that it is not mandatory, and an application will not fail merely because the form is not used, provided such application contains the necessary information required by r.I."
[13]The application that was held to be good in that case was in the form of a letter. The crucial passages, so far as this case is concerned, are contained at the end of the letter and are in these terms:
"We have written to the Royal Automobile Club to try and obtain a clear statement for the reason for Mr Smith's dismissal, but in view of the time limit imposed under the Industrial Relations Act 1971 we would be obliged if you could take this letter as a formal notification to you on behalf of our client, Mr R C Smith, of his complaint that he therefore wishes to bring his claim before the Industrial Tribunal. We appreciate you will probably require information and facts from us but in order to preserve our client's rights within the time limit of the act could you please confirm this letter will be accepted as formal notification of our client's complaint."
[14]It seems to us that that authority does not assist in this particular case, because in this case what is asserted on behalf of the Appellant is that we should (and the Employment Tribunal should have) read letters which did not, on their face, purport to be Originating Applications, or notifications of Originating Applications, as being such. The letter in that case expressly did ask that it should be treated as "formal notification of our client's complaint".[15]The second case, in terms of time, referred to was the case of Dodd v British Telecommunications Plc [1988] IRLR 16. In that case the Employment Tribunal had held that an application had not been made within time because it took the view that the Originating Application that was lodged did not contain sufficient particulars to be registered by the Officer of the Industrial Tribunal and so was not effective.[16]The decision of the Employment Appeal Tribunal under the Chairmanship of Scott J (as he then was) contained at paragraph 15 a reference to the decision of Neill J (as he then was) sitting in the Employment Appeal Tribunal in Burns International Security Services (UK) Ltd v Butt [1983] IRLR 438 and went on at paragraph 16 to say:
"The written application as presented must contain sufficient to identify who is making it and against whom it is made and must contain sufficient to show what sort of complaint it is. That at the least must be present. We think that an application whose contents did not comply with those broad minimum requirements would not be capable of being described as an originating application at all."
[17]The position in that particular case was that the application, so-called, had been made on a form IT1 but was defective in the extent of the information that it gave. It does not seem to us that that case is of any assistance because that again is a case where it was perfectly clear on the face of the document that what the Applicant intended to do was to make an application.[18]The next case in order of time (to which we were referred) was Alex Munro (Butchers) Ltd v Nicol [1988] IRLR 49. The position in that case was that a Miss Nicol left her employment in circumstances she alleged amounted to constructive dismissal and she consulted a solicitor. The solicitor wrote to the Central Office of Industrial Tribunals in these terms:
"We act on behalf of Miss L Nicol who was employed by Alex Munro (Butchers) Ltd until 25.1.86. Our client considers that she was constructively dismissed by her employers. We wrote to her employers on 27.2.86 requesting written reasons for our client's dismissal but have not yet received a reply from them. Our client wishes to submit a complaint to the Industrial Tribunal. We should therefore be obliged if you would forward the appropriate form to us as soon as possible."
[19]For whatever reason the form did not come to the hands of the solicitors until the end of May and it was presented on 4 June duly completed. The majority of the Employment Appeal Tribunal, chaired by Lord Mayfield, held that the case could be distinguished from the Smith case because the solicitor had not made it clear in her letter that it should be regarded as a formal notification of her client's complaint and registered by the Industrial Tribunal, but on the contrary since the letter went on to ask that the appropriate form for presenting an unfair dismissal claim be forwarded as soon as possible, it was evident the solicitor herself did not regard the letter as being an application.[20]That, it seems to us, is a case much more likely to be of assistance to us than the earlier cases cited to us. At paragraph 8 Lord Mayfield giving the view of the majority of the Tribunal said this:
"Furthermore, the latter part of the letter, 'our client wishes to submit a complaint to the Industrial Tribunal and we should therefore be obliged if you would forward the appropriate form to us as soon as possible' makes it impossible, in the majority view, to accept that the letter of 27.3.86 can be regarded as an application. The passage in the letter we have referred to makes it clear the solicitor herself did not regard the letter as an application form. Nor were her persistent attempts to obtain a form from COIT consistent with that view."
It was therefore held, allowing the appeal, that the letter did not amount in that case to an application.[21]The fourth of the cases to which we were referred was Laing v Department of Social Security (EAT/754/97), decided by an Employment Appeal Tribunal under the chairmanship of Lord Johnston on 13 October 1998. The letter written on that occasion contained the following passage:
"I refer to the above. Enclosed is the IT1 against the dismissal from the employment of the above employers." but nowhere stated the address of the employers. The point being taken was that the application was defective because it did not give the employer's address. What the Employment Appeal Tribunal said as to that, was in these terms: "
In our opinion the submissions of Mr O'Dempsey are to be preferred in respect that we consider that the issue of whether or not a submission to an Industrial Tribunal to be regarded as an Originating Application requires an objective test to be applied to the material submitted to ascertain of whether it contains sufficient to meet the substance of reg 1 Form is immaterial. We use the word 'substance' because we accept that the approach of Scott J in Dodd , is correct when he talks about basic essentials in terms of a 'must' before the substance of reg 1 is met, without being concerned of either the form in which it is presented, or, at the end of the day, with any differences that might arise in interpretation, so long as the facts can be properly interpreted. We are concerned that on the face of the document that was presented, there is no address as to the employer, but we are prepared to follow the general trend of the cases, that such is not necessary if the matter can easily be resolved." So that again was a case where there was a document which, on the face of it, was clearly an attempt to launch an Originating Application but which was said to be formally defective.[22]In the present case, the difficulty which faces Mr Brown, and with which Miss Beale on his behalf has gallantly struggled, is that neither of the two letters purports on the face of it to be an Originating Application, neither asks to be treated as such and, in our view, to adopt the words used by the Employment Tribunal at paragraph 36 in their decision:
"The Tribunal would be flying in the face of reality if it were to hold that the Applicant had submitted Originating Applications at times when his solicitors clearly acknowledged this was not the case."
[23]In relation to the first, clearly it was not intended to be a fresh Originating Application. It was, on the face of it, an attempt to amend and the solicitors made it clear by their subsequent actions that what they then proposed to do was to submit an Originating Application. It does not seem to us that their client can subsequently turn round and assert that because no application was subsequently made that he now wishes to treat that earlier letter as having been an Originating Application.[24]So far as the second letter was concerned, on the face of it the document did not purport to be an Originating Application. The solicitors make it clear that that is not their intention. What they say is they "attach a copy draft fresh grounds of complaints, to be attached to our client's fresh Originating Application". They make it clear that the document does not, as yet, have their client's approval. They say that it has been sent to their client by post for his approval and that "As soon as it is approved and signed by our client, we will fax you a finalised copy with fresh Originating Application."[25]In those circumstances, neither the letter nor the draft grounds can be treated as an Originating Application. That it was not intended to be such is made even clearer by Mr Brown's subsequent conduct when eventually, on 23 September, he did submit a fresh Originating Application containing grounds which were not entirely at one with the grounds enclosed in draft with the August letter.[26]In those circumstances it seems to us that the Tribunal were right and reached the only possible conclusion when they held that neither of those letters could amount to an Originating Application; that therefore Mr Brown's application was out of time and that therefore they had no jurisdiction. It follows that this appeal must be dismissed.