MR M M N HOSSAIN v SONALI TRADE & FINANCE UK LTD [2003] UKEAT 176_02_1701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 176_02_1701Case No Appeal No. EAT/176/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M M N HOSSAINAPPELLANTSONALI TRADE & FINANCE UK LTDRESPONDENT
Before
Mr Justice Rimer Mr A E R Manners Ms P TatlowDate 17 January 2003
[1]APPEARANCES For the Appellant The Appellant in person THE HONOURABLE MR JUSTICE RIMER This is a preliminary hearing in respect of an appeal brought by Mr Mian Mohammad Nazmul Hossain against a decision of the Employment Tribunal, chaired by Mr J Scannell, sitting at Stratford. The hearing occupied some nine days and the Tribunal's extended reasons were promulgated on 14 December 2001. The Notice of Appeal is dated 24 January 2002.[2]The matter before the Tribunal was something in the nature of a test case. Mr Hossain was one of 26 applicants with similar claims and his application was selected as appropriate to be the lead application. It was hoped that the decision in his case might obviate the need for further proceedings in respect of other cases.[3]Mr Hossain's originating application raised three claims:(1) for arrears of rent allowance;(2) for earned leave entitlement on termination, and(3) in respect of pension payments. That is how the issues before the Tribunal were identified at the beginning of their extended reasons. The first two claims failed and were dismissed, and - at least on the face of the Tribunal's reasons - the third claim succeeded. The respondent, Sonali Trade & Finance UK Ltd (which we will call "Sonali Trade") was ordered to pay £1,440 to Mr Hossain, having been held to have made an unauthorised deduction from his pay.[4]The Notice of Appeal has been drawn by Mr Hossain personally. Mr Hossain is modest about his abilities as a lawyer, which he is not, and, of course, he would not have found it the easiest of things to do, to draft the Notice of Appeal in what was quite plainly a difficult case, but he did the best he could with it, although it is not perhaps the easiest of documents to follow What it does make clear is that Mr Hossain does not challenge in it the Tribunal's rejection of either of claims 1 or 2, that is for arrears of rent allowance and for earned leave entitlement on termination. His appeal is directed solely to its decision on the third claim, in respect of which he was in fact successful, and the burden of his appeal is that he claims (and does so effectively on behalf of those in like interest, which do not, as I understand it, include all 26 of the people I mentioned, but only about eight of them) that the Employment Tribunal did not give him as much as he was entitled to.[5]The background to the claim is that Mr Hossain had been an employee of Sonali Bank, a Bangladeshi bank based in Bangladesh, although he was based at its United Kingdom branch in London. His employment had lasted from 1 November 1974 until he was dismissed on the grounds of redundancy on 30 June 1999. Sonali Bank closed on that day, with part of its operation being transferred to Sonali Trade.[6]The originating application sought various heads of relief against both Sonali Bank and Sonali Trade, but the only paragraph in it of immediate relevance is paragraph 12.11 reading:
"The Respondent has failed to pay the Applicant his pension entitlement and provident fund which should have been paid in Taka in Dhaka."
The respondents' response to paragraph 12.11 (which was in fact pleaded in response to a number of like complaints by other applicants) in their Notices of Appearance was that:
"Paragraph 12.11 is denied. By virtue of the First Respondent's staff regulations (which formed the conditions of the Applicants' employment) the Applicants were not entitled to any payment in respect of pension or provident fund balance at all. However, the First Respondent made an ex-gratia payment to the Applicants calculated by reference to the "pension" the Applicants would have been paid had they qualified (paid to the Applicants on 10 October 1999) and the Applicants' provident fund balance (paid on 29 September 1999). Please see attached schedule for available payment details"
[7]Mr Hossain's complaint about the pension paid to him, and to the other applicants in a like interest, is explained more fully in paragraphs 39 - 55 of the outline written submissions prepared by his Counsel, Mr Millar QC, for the purposes of his closing address at the hearing before the Employment Tribunal. That identified that there was no dispute that Mr Hossain was entitled to a compensatory pension on redundancy. The dispute was as to the "final pay" used in calculating it. The submissions pointed out that Bangladeshi "basic pay" had been used in calculating it, apparently in reliance on regulation 52(3) of certain 1995 Regulations which the Tribunal had earlier held governed the terms of Mr Hossain's employment with the bank. But Mr Millar pointed out that the respondent had conceded during cross-examination that it had been wrong in so placing reliance on regulation 52(3), and sought instead to rely on an alternative basis for calculating the pension.[8]In paragraph 45 of its reasons, the Tribunal rejected that alternative line of defence and accepted Mr Millar's submission that what it called the "personal/protected pay element" should have been included in the calculation of a pension lump sum payable to Mr Hossain and to the other applicants in the like position. The Tribunal concluded its reasons on this aspect of the case by saying in paragraph 46:
"It follows that Mr Hossain and the other relevant Applicants succeed in this element of their case. The calculation should have been done on the basis that the personal/protected pay element was included. The amounts due to each Applicant are known to the parties. The lump sum payable to each of these persons at termination is an emolument "referable to the employment"
. The Tribunal therefore declares that, insofar as the payments did not include an element calculated on the basis of their personal/protected pay, the Respondent made unauthorised deductions from their pay and is ordered to pay them the difference."[9]To this extent, therefore, Mr Hossain and the other applicants were successful. But Mr Hossain's Notice of Appeal seeks to argue that they should have been even more successful. The relevant point is identified in paragraphs 54 and 55 of Mr Millar's outline argument which is effectively, as we understand it, adopted in Mr Hossain's Notice of Appeal. Those paragraphs read:
"54 It has emerged in the course of the hearing that [the Respondent] considers that all of the sums received by its UK optee staff each month (basic pay, protected pay and allowances) to be part and parcel of their net "salary" [see 1.282] or "take home pay" [see especially the evidence of Mr Latif on day 8 when cross examined about 1.282]. The claim as pleaded and articulated in evidence by [Mr Hossain] is, however, limited to basic pay plus protected pay (see the "other allow" column at 2.282 for the eight of the [Applicant's] ) "final" pay for pension purposes. 55. Accordingly the ET is invited to consider whether the reality of the [Applicants'] employment in the UK requires that the phrases covering "final" pay for pension purposes be construed so as to cover not only protected/personal pay but this full final monthly pay . Those acting for [Mr Hossain] and the union are concerned to ensure that guidance capable of resolving all the [Applicants'] grievances is obtained from the ET's decision. If this point is not considered (but merely the claim as pleaded) this may not occur."
That was, therefore, an invitation to the Tribunal, in the light of what was said to be effectively in the nature of the concession by the respondent, to declare that Mr Hossain and his co-applicants had a greater pension entitlement than they had in terms pleaded.[10]However, in its extended reasons, the Tribunal makes no reference to this point at all. We have no satisfactory explanation of why the Tribunal did not make any reference to that because Mr Millar's skeleton argument flagged the point up with unambiguous clarity and - in the absence of any explanation or any suggestion that the point was abandoned or withdrawn, and we see no basis for so concluding at this stage - we consider that it is right to approach this appeal on the footing that that point, or the points reflected in those two paragraphs of Mr Millar's skeleton argument, were squarely put to the Employment Tribunal and that it was invited to rule upon the matter. Nevertheless, it did not do so and gives no reasons for not doing so, and in those circumstances, we consider that Mr Hossain should be entitled to proceed to a full hearing on that point and we so direct.[11]However, Mr Hossain has taken the opportunity at this preliminary hearing not just to seek to make good his claim that he should be entitled to proceed to a full appeal on that element of the case, being in fact the only element raised by his Notice of Appeal. He has also - in his very comprehensive skeleton argument submitted to this Appeal Tribunal on 8 January 2003 - sought to argue that he should be given leave to proceed to a full hearing on two further points, which are headed in his argument "Redundancy Gratuity" and "Leave encashment"[12]We have heard Mr Hossain's explanations as to the points he wants to make in relation to those matters, which are not all that easy to identify. The first point which emerges is that it is by no means clear to us that these points were, in terms, argued before the Employment Tribunal at all and insofar as Mr Hossain is disappointed that the Employment Tribunal did not rule on them, it follows from what we have already said that that disappointment did not extend to including any claims in respect of these matters in the Notice of Appeal. If there is any substance in either of these points, and if they were matters which were considered and effectively ignored by the Employment Tribunal, then it is obvious that they are matters which could, and indeed should, have been included in the Notice of Appeal when it was issued on 24 January 2002.[13]There is, therefore, simply no appeal in respect of those matters and this preliminary hearing is not an occasion for considering applications for permission to present appeals which have not hitherto been presented: it is an occasion for considering whether an appeal which has been made should proceed to a full hearing. That, of course, is not to say that we would not have a jurisdiction and discretion to permit the Notice of Appeal to be amended to include these matters, but the question is whether we should do so.[14]The position in relation to appeals to the Employment Appeal Tribunal is that a generous period is allowed for giving a Notice of Appeal, a period of six weeks following the obtaining of extended reasons, which allows would-be appellants a very full period within which to assess what matters may or may not be the subject of their appeal. There is no absolute right to come along a year later, which is effectively what Mr Hossain is doing, and to expect to be given permission for amendments to raise points which had not hitherto been raised, and being points which it is far from clear were even raised before the Employment Tribunal at all. We accept we have a discretion, but it is one which has to be exercised by reference to proper principles. We do not simply have a discretion to extend time simply because an extension of time has been sought; if that were so, there would be little or no point in imposing the sort of time limits which the relevant Rules impose.[15]Mr Hossain explains that he has been ill, indeed, quite seriously ill during the last year, and we take full account of that. But his illness did not, of course, prevent him from presenting the Notice of Appeal on 24 January 2002. He made no suggestion that he needed an extension of time for doing that because of his then state of health, and we find it difficult to see any sound reason why the points he now seeks to raise, if they were before the Employment Tribunal, could not have been in his original Notice of Appeal.[16]We have come to the conclusion, albeit with some reluctance, since we fully understand that this case is a matter of considerable importance to Mr Hossain, and he no doubt wishes to have the most comprehensive hearing at a full hearing on his appeal that we should not permit him to appeal out of time in respect of these matters. In those circumstances, we will simply direct that his appeal, that is to say the appeal in respect of the correct calculation of his emoluments for pension purposes, goes to a full hearing.[17]We would add that we do not find it all that easy to extract from the Notice of Appeal, as currently drafted, the precise nature of the point which Mr Hossain seeks to argue in relation to the pension point. We have endeavoured to explain it as we understand it, but the arrival at the conclusion involved more labour than perhaps ought to have been necessary if the Notice of Appeal is drafted in the way it should be.[18]We accordingly consider that it would be of assistance both to the respondent and to the panel at this Appeal Tribunal hearing this appeal if Mr Hossain could amend his Notice of Appeal to spell out, with as much precision as he can, the precise nature of the points he wants to argue in support of his contention that the Employment Tribunal was in error in limiting, in the way they did, the elements of final pay relevant for pension purposes. DIRECTIONS So we will direct you to amend your Notice of Appeal in that respect. We will direct that that Notice of Appeal goes to a full hearing. We should impose a time limit on you for amending your Notice of Appeal - could you do that in three weeks? There is a standard provision in the Order which will enable you to try and reach agreement with the other party as to any notes of evidence you may wish, that is by agreement between you. If that does not achieve what you want, the Order will provide that you are at liberty to make an application for that. So we will not do it at this stage. You will find the Order will contain a provision which will, we hope, help you in this respect, but if it does not produce what you want, you would be at liberty to make an application for the Chairman's Notes. The only other thing we ought to do is to direct that there is an exchange of skeleton arguments which, in this case, will be of vital importance, not later than fourteen days before the hearing of the final appeal.