MR P CHILDS v PEGASUS ENGINEERS LTD T/A ACORN GARAGE AND MOT CENTRE [2003] UKEAT 57_02_2201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 57_02_2201Case No Appeal No. EAT/57/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P CHILDSAPPELLANTPEGASUS ENGINEERS LTD T/A ACORN GARAGE AND MOT CENTRERESPONDENT
Before
Mr Justice BurtonDate 22 January 2003
[1]APPEARANCES For the Appellant MR CRABBE (Representative) Crabbe's Legal Consultancy Little Lodge Hensting Lane Owslebury Winchester For the Respondent MR O L LEIGHTON (Representative) Employment Law Consultants 11 Edgehill Road Southampton SO18 2AH MR JUSTICE BURTON (PRESIDENT) : This is the hearing of the appeal by Mr Childs, from the decision of the Southampton Employment Tribunal on 23 November 2001, when it dismissed his Originating Application dated 22 August 2001, which we shall call "the Second Originating Application", as being out of time, and concluding that there were no grounds for extending the period of time.[2]Mr Childs has been, since 29 May 2001, represented by Mr Crabbe, an Employment Consultant who has appeared before us today, but before that date he had been representing himself. He is plainly a young man, and, we are told, suffers from a degree of dyslexia[3]The Respondent has been represented before us today, as it was before the Employment Tribunal, by Mr Leighton, who is also an Employment Consultant.[4]The circumstances which led to the decision by the Employment Tribunal are as follows. Mr Childs admittedly made a complaint about his employers, alleging that they had been involved in illegal conduct, to the Vehicle Inspectorate, in November 2000. The Vehicle Inspectorate attended at the Respondent's workshop on 1 December 2000. Without going into the case that is put forward by either side, in any detail at this stage, it is common ground that he was dismissed without notice on receipt of a letter at 6 o'clock on 4 December 2000. He says that he was dismissed, and, indeed, abused, because he had made the complaint to the Vehicle Inspectorate.[5]The Respondent's case, as set out in its Notice of Appearance to an Originating Application issued by the Appellant dated 20 January 2001, which we shall call "the First Originating Application", is to accept that he was dismissed, because of his complaint to the Vehicle Directorate, but to assert that complaint was wrong, and was malicious, because, on its case, the Appellant did not make it genuinely, and did not believe it to be true, and that he had admitted at the time that he had made a false and untruthful accusation, which is what led to his dismissal.[6]The ambit of dispute is thus not a large one, in relation to the underlying events, but it will be very heavily contested. The first application was well in time, as is apparent. It claimed breach of contract, and quantified the amounts claimed, as sums, as follows:
"One week in arrears = £ 307 Four weeks in lieu of notice = £ 1228 Six days holiday pay = £ 368.40 20 hours sick pay = £ 153.50 Total = £ 2056.90"
The First Originating Application indicated that the type of complaint in box 1 was breach of contract, and box 10, which was to be filled in by unfair dismissal applicants only, was consequently left unticked.[7]The evidence by the Appellant, which was accepted by the Tribunal below, was that he had sought to find out whether he could make a claim for unfair dismissal, and had been told that the qualification period, for making a claim for unfair dismissal was, as indeed it is in normal circumstances, 12 months, such that, as he had only commenced work on 14 August 2000, he did not have that qualification. But he, of course, asserted that he had been dismissed for making what, as a lawyer would describe it, was a protected disclosure within Part 4A of the Employment Rights Act 1996 , and, if he has such a claim, then, of course, there is no qualifying period, and the 12 month period does not apply. He said, and as we have indicated, his evidence was accepted by the Tribunal in this regard, that he had asked the Tribunal Office for assistance as to whether he could bring a claim for unfair dismissal, and had been told, as is perfectly understandable, that they were unable to assist. He had also contacted the Citizens Advice Bureau, and he had been given the advice that he could not bring a claim in less than one year for unfair dismissal. It is unclear to us, and we think there is no specific finding, as to whether he expanded to the Citizens Advice Bureau on the fact that he had what could be characterised as a protected disclosure, such that the advice could be said to be even more wrong than it appears to have been. But, on any basis, it would seem that he was not told that there was any exception to the 12 month rule, which might have enabled him then to have concluded that he fell within it. He said that he also contacted ACAS, who told him that they were unsure about the position, and that he rang a Solicitors' helpline who, again, like the CAB, told him that the 12 month period was necessary. In those circumstances, Mr Childs said, he issued the Originating Application, unadvised and unrepresented, as he was, in the form that we have described.[8]On 20 February 2001 a Notice of Appearance was entered, to which we have referred, by the Respondent, and a letter was sent to him explaining the Respondent's case more thoroughly, and indicating that there was a cheque payable for a very small part of the amounts of money that he was claiming.[9]A Tribunal hearing was fixed for 12 June 2001. With a view to representation at that hearing, he sought assistance on 29 May from Mr Crabbe. Mr Crabbe has told us, as he no doubt told the Employment Tribunal, that the Appellant told him that he had made a claim for unfair dismissal but, of course, on his seeing the Originating Application it became quite apparent to him that he had not made such a claim, and, on 5 June, Mr Crabbe on his behalf made an application for postponement of the Employment Tribunal hearing of 12 June, and for an amendment of the Originating Application.[10]We do not need to set out in detail the events that occurred thereafter. Suffice it to say that there was one period, between 23 July and 22 August, which the Chairman considered constituted delay by Mr Crabbe, but the majority of the Employment Tribunal disagreed, and there is no cross-appeal against that conclusion of the majority of the Employment Tribunal. So we do not need to address precisely the passage of time after 29 May, but in general the following occurred. The Employment Tribunal dismissed the application, on paper, for an amendment of the First Originating Application. Mr Crabbe sought review of that decision, and the review was refused, and the suggestion was made by the Chairman, Mr Twiss, who had refused the review, that the Appellant could issue a fresh Originating Application, although, of course, once issued, the question as to whether it was out of time, and, if so - which it clearly would be - the question of its extent and effect would then have to be considered by the Employment Tribunal.[11]It appears clear to us, as will become apparent, that that amendment ought to have been granted by the Employment Tribunal, either on the original application or on the review, but it was not. Mr Crabbe did not appeal to the Employment Appeal Tribunal, but took up the suggestion of the Chairman as to issuing, and he did so issue, the Second Originating Application; and it is the perfectly understandable challenge to that second application, which had been anticipated by Mr Twiss, which came before the Employment Tribunal on 23 November. The Employment Tribunal at this time was chaired by Mr Simpson, not by Mr Twiss, and the two members were Mr Withey and Mr Murphy. The decision of the Tribunal was a majority decision, and there was a minority judgment from Mr Murphy, which is full, and clear. The decision of the majority was that they held that they were not satisfied that it had not been reasonably practicable to issue the Second Originating Application in time, and, consequently, it was out of time without excuse, and they dismissed it, leaving, of course, the First Originating Application to go on to a hearing.[12]Apart from the view that the Chairman had taken, as to which the majority disagreed, about delay between 23 July and 22 August, there was no specific consideration of any delay, and they do appear, as we have indicated, to accept the account given, by the Appellant, as to how it came about that the First Originating Application did not include the claim for unfair dismissal, he believing, as a result of the preponderance of the advice which he described that he had been given, that he was not qualified to bring it. But the conclusion by the majority was plainly underpinned by the contents of paragraph 8 of the Extended Reasons, which reads as follows:
"The originating application presented on 31.1.01 makes reference to the Applicant being asked to perform an illegal act. It also refers to the Applicant reporting these matters to the Vehicle Inspectorate and following a visit by an inspector the Applicant asserts he was abused by the Respondent. The Chairman and Mr Withey find that the Applicant does not say, either expressly or impliedly, that he was dismissed [and the word, as we have indicated, is underlined] for reporting the matter to the Inspectorate."
[13]It is, in those circumstances, necessary for us to consider the terms of the Originating Application. It reads as follows, first, in material part, having set out the events of November 2000, when he made the complaint to the Vehicle Inspectorate:
"1 December 2000 – Back at work. Vehicle Inspectorate came in to workshop. When he left I was called into the office and told I was a 'fucking liar', 'lower than low', 'bad person', etc, because I had reported him and given the company a bad name. Received pay p.m. with two and a half day's pay deducted which my contract says I am entitled to. 4 December 2000 – Feeling unwell. Told I would not receive sick pay. Leave work to go to doctors. 1:30 pm meet manager and work shop manager with my fiancé present. Said I was unhappy working there. I was told to come back at 6:00. At 6:00 pm I received a letter of termination of employment. It stated 'termination without notice'. 'Paid to you on the 8 th December'. '1 week's salary for payment in lieu of notice'."
[14]The Respondent's Notice of Appearance, to which we have referred, which was served on 20 February 2001, still well before the Appellant had consulted Mr Crabbe, reads as follows, in material part:
"1. The Applicant was dismissed on 4 December 2000 for gross misconduct; 2. At an investigatory hearing on 1 December 2000, the Applicant was asked about a complaint he had made to the Department of Transport's Vehicle Directorate in which he apparently wrongly and maliciously accused the Respondent of issuing him with an illegal order regarding the conduct of MOT tests; 3. In response he freely admitted he had made such an accusation to the Vehicle Inspectorate, and accepted that his action was false and untruthful; 4. The Respondent, after due consideration, held that his action constituted gross misconduct, and at a disciplinary hearing held on 4 December 2000, he did not retract that previous admission; 5. A letter of that date was later handed to him in which he was advised the employment was being terminated without notice."
[15]On that basis, the claim for payment for four weeks in lieu of notice and for holiday pay were resisted. It is, of course, apparent, that the Notice of Appearance was responsive to the claim for breach of contract, and the claim, in particular, for damages in respect of payment in lieu of notice, and they were justifying the dismissal on the basis that there was, indeed, a dismissal for misconduct, but the misconduct in question was what they regarded as his false, and malicious, complaint to the Vehicle Directorate. That issue, which was going to be tried on 12 June, would have required consideration by the Tribunal of whether, in fact, the dismissal was lawful and justified.[16]If the employers prove that the complaint, which was admittedly made to the Vehicle Directorate, was false and maliciously made, and, what was more, that he had admitted that he had made it falsely, and maliciously, on 4 December, and did not withdraw that when the matter was first put to him, then plainly they would be entitled, one would have thought, as a matter of course, to establish that the dismissal was fair. If, on the other hand, he made the report which was true, or possibly, if he made a report which was false but reasonably believed by him to be true, there would be an issue on the lawfulness of the dismissal. So far as unfair dismissal is concerned, the issue would be more or less the same, except this; that for the purposes of fair dismissal or unfair dismissal, there is no middle ground in the sense that, all that has to be shown for the purposes of there being a protected disclosure, by virtue of section 43(c) of the Employment Rights Act 1996 , is that the worker made the disclosure in good faith, when he reasonably believed it to be true, and so, whereas, perhaps, there might be some doubt about whether the making of a false complaint, in good faith, would be nevertheless a ground for a dismissal without notice at common law, it would plainly be no defence for the employer in relation to the statutory claim for unfair dismissal. But, subject to what the consequences would be, the issues would be the same.[17]It appears to us, in those circumstances, incomprehensible that, following the principles of Selkent Bus Co Ltd v Moore [1996] ICR 836 , the Employment Tribunal did not allow the Originating Application to be amended. There was an explanation before them of the delay; there was no doubt, in our judgment at all, that the facts, which were the subject-matter of the proposed amendment, were the same as those which had formed the subject-matter of the Originating Application, and that there was no prejudice to the Respondent arising out of the delay in the making of the amendment, if delay there had been. In those circumstances it is unfortunate that Mr Crabbe did not appeal, but perhaps understandable, given that he may have thought he was being given a helpful suggestion by the Employment Tribunal, which would have avoided bringing the matter up to this Tribunal, and, perhaps, causing delay. But, in any event, he did not appeal against the making of an order which, in our judgment, was unjustifiable by the Employment Tribunal, but this matter came on in the way that we have described.[18]For the reasons we have given, we conclude that the buttress of the majority decision set out in paragraph 8 is unsupportable. It is totally clear to this Tribunal, for reasons we have given, that the First Originating Application made clear, expressly, but certainly impliedly, that the Appellant's case was that he was dismissed for reporting the matter to the Inspectorate, and, if there had been any doubt in relation to that, it would have been even clearer by reference to the Notice of Appearance, which showed the understanding by the employers, and, indeed, which positively confirmed that he had been dismissed for making the report, albeit, of course, on the employers' case, that he had made it falsely, and maliciously. That buttress having gone, it appears to us that the discretion, which was then exercised by the majority of the Tribunal in the decision, must be falsified, and must be re-exercised by this Tribunal.[19]We have no doubt at all that this is an appropriate case in which an extension of time should be granted for the issue of the Second Originating Application. The false position in which the Appellant was put resulted from a combination of his youth, his lack of advice until he consulted Mr Crabbe, and the inaccurate, or at any rate unhelpful, advice which he obtained from otherwise appropriate sources, and that state of ignorance remained until he consulted Mr Crabbe, a relatively short, but not criticisably short, time before the date of the Tribunal hearing.[20]We conclude that the conduct of Mr Childs should not be criticised. Mr Crabbe acted, in our judgment diligently, certainly in the period before July, and, in the period subsequent to July, also then in the opinion of the majority of the Employment Tribunal, which we do not re-visit; and we conclude that he is certainly not to be criticised, or if to be criticised, such criticism is not to be laid at the feet of his client, for his having followed the course which he did, rather than having appealed the refusal of the amendment to the Employment Appeal Tribunal, which would, no doubt, have caused as much or even more delay than has, in fact, occurred in this case.[21]In those circumstances, we have no hesitation in allowing this appeal, and directing that the Second Originating Application should proceed; that it should be consolidated with the First Originating Application, and the two together should be remitted for further hearing; and in the circumstances, we conclude it is appropriate it should be heard by a different Employment Tribunal from that which made the decision in November, and before a Chairman who has not previously dealt with this case, but should otherwise remain within the Southampton Employment Tribunal.[22]It is to be hoped that this relatively short case can now be speeded up at the Employment Tribunal, and can, consistent with fairness, be heard as soon as possible.