MR R S GREWAL v LONDON BOROUGH OF BARNET [2007] UKEAT 0573_07_0402

EMPLOYMENT APPEAL
TRIBUNAL
BAILII case number: [2007] UKEAT 0573_07_0402Case No Appeal No. UKEAT/0573/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y, 0DS
Between
MR R S GREWALAPPELLANTLONDON BOROUGH OF BARNETRESPONDENT
Before
His Honour Judge BirtlesDate 4 February 2007
[1]APPEARANCES For the Appellant MR R S GREWAL (The Appellant in Person) For the Respondent MR S KAPOOR (of Counsel) Instructed by: London Borough of Barnet Legal Services North London Business Park Oakleigh Road South London N11 1NP SUMMARY Claim in time Employment Tribunal entitled to find the first claim form intimidated a future claim for unfair dismissal and second claim form did not contain an unfair dismissal claim either. Furthermore, on the facts the Chairman was entitled to find that it was reasonably practicable for the Appellant to bring a claim for unfair dismissal in time. HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the preliminary hearing of an Employment Tribunal Chairman (Miss D Thomas) sitting alone at Watford on 11 June 2007.[2]The judgment on the preliminary hearing was that the Appellant's claim under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 was dismissed as misconceived and that his application to amend his form ET1 to include a claim under section 98 of the Employment Rights Act 1996 was refused. The judgment and reasons were sent to the parties and entered in the register on 5 July 2007.[3]At the hearing of the appeal Mr Grewal represented himself and the Respondent was represented by Mr S Kapoor. History[4]Mr Grewal was employed as Principal Accountant by the London Borough of Barnet. Following a restructuring process by the Resources Directorate of which he was a member he was notified that he was to be made redundant and on 7 August 2006 he was issued with a letter terminating his employment with effect from 20 October 2006. The notice period was said to commence from 21 July 2006 which was the date of Mr Grewal's appeal hearing. On 15 August 2006 that notice was amended and stated the notice period was to commence on 28 July 2006 with the termination date amended to 27 October 2006. On 25 August 2006 the notice of termination date was changed back to 20 October 2006. On 30 November 2006 Mr Grewal was issued with his P45 providing a "last date of service" date as being 27 October 2006.[5]Mr Grewal issued a claim form in the Watford Employment Tribunal on 4 September 2006. The case number was 3318116/2006: EAT bundle pages 21-43. The material parts of that claim form seem to me to be as follows:
"3.3 Is your claim, or part of it, that a dismissal by the respondent?"
Mr Grewal has ticked the box marked "No". "4.1 Please give the following information if possible. When did your employment start? 01 12 1997 When did or will it end? 20 10 2006 Is your employment continuing?" Mr Grewal has ticked the box marked "No". "5 Unfair dismissal or constructive dismissal Please fill in this section only if you believe you have been unfairly or constructively dismissed." Mr Grewal has not answered this question or box at all.[6]However, he has made an allegation of race discrimination in paragraph 6 of the form ET1 and attached to it an extensive explanation as to why he thinks he has been discriminated against on the grounds of his race: EAT bundle pages 27-34.[7]In answer to paragraph 9 which is headed "other complaints" Mr Grewal has written in "Please see attached – section 9". Section 9 is at EAT bundle pages 37-40. The material parts seem to me to be as follows: (1) "9 Other complaints I am making this complaint as an affected employee and being an employee that is in a position of being dismissed as redundant. Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C) A 1992) Information and Consultation of Employees Regulations 2004. I am making a complaint about the employer's failure to properly inform and consult. The restructure has been stated to be a directorate-wide restructure. Reference has been made in communications to staff that the consultation period is 90 days. A collective redundancy situation arises where an employer proposes to dismiss as redundant twenty or more employees at one establishment within a ninety-day period. In the context, this is a collective redundancy situation. There have been a substantial number of people affected by redundancy, much greater than 20 people. The facts are as follows. The legislation requires that Consultation must be completed, before any notices of dismissal are issued to employees, in a collective redundancy situation. There have been no notices of redundancy or dismissal issued to staff from the affected groups, prior to selection for redundancy or dismissal and I believe that this is an infringement of the legislation. Fair consultation means consultation at a point when proposals are still at a formative stage, thus giving the persons consulted a fair and proper opportunity to understand fully the matters about which they are being consulted and to express their views on those matters. I have received a notice of redundancy after the selection procedure but not before and I believe that issuing me with an individual notice of redundancy and dismissal after the event and not in advance shows that the employer has not carried out their duty to inform and consult me, in advance of the redundancy and dismissal. The legislation requires that the employer must disclose the following to employee representatives.• the reasons for the proposals;• the numbers and descriptions of employees it is proposed to dismiss as redundant;• the total number of employees of any such description employed by the employer at the establishment in question;• the proposed method of selecting the employees who may be dismissed;• the proposed method of carrying out the dismissals, taking account of any agreed procedure, including the the period over which dismissals are to take effect;• the proposed method of calculating any redundancy payments, other than those required by statute, that the employer proposes to make. I cannot recall seeing this information being communicated in the scope referred to above."[8]Mr Grewal then goes on to set out in detail his complaints about lack of consultation: EAT bundle pages 38-39.[9]Finally, Mr Grewal has written against paragraph 10 "other information" the following "Please see paragraphs in section 10". This is at EAT bundle page 40. The material part says this:
" 10 Other information In the event of dismissal I will be making a claim for unfair dismissal. I believe the dismissal will be unfair because: i) I believe there has been race discrimination ii) This is not a redundancy situation. Individual notices of redundancy have not been issued to the affected group. The redesignated group has the same number of posts as staff in the principal accountant group and all the other terms and conditions of the redesignated group remain the same, as the former principal accountant group. The job has not disappeared or significantly changed but has been redesignated by a name change. iii) Individual officers' have been recruiting new staff to fill jobs, at this level. There has not been a reduction in the workforce. iv) I do not believe that I'm legally redundant v) Statutory redundancy procedures have not been followed as Individual notices of redundancy have not been issued to the affected groups. vi) Fair selection has not applied - decisions on continued employment at this level have not been made on the basis of my personal statement and interview. i.e. my individual ability. vii) The appeal arrangements have not been heard in an independent manner. Individual Officers that have been closely connected in this matter and have interest in it have been involved in hearing this appeal. viii) Individual Officers' have not followed Council procedures that would otherwise have safeguarded employment, even though these procedures are there to ensure that a fair process is followed. ix) Officers' have reported to Members that there are no legal implications. x) Equal opportunities policy has not been followed. xi) I believe that the outcome of the interviews has been a foregone conclusion and that this is based on racial discrimination."
The Respondent's form ET3 is at EAT bundle pages 67-80. It is a flat denial that the Claimant was discriminated against on the grounds of his race or for any grounds whatsoever and sets out a defence of the procedures followed by the Respondent in making Mr Grewal redundant.[10]On 8 December 2006 Mr Grewal wrote to the Employment Tribunal Office at Watford: EAT bundle pages 55-57. The material part of his letter said this:
"Further to my claim, dated 4 September 2006 detailing my complaints relating to race discrimination, unfair dismissal and failure to inform and consult in a redundancy situation by my employer, Barnet Council, I am writing to inform you about further complaints. The original claim was made on the 4 September, in accordance with the three month time limit relating to the events of the claimed race discrimination and failure to inform and consult about the redundancy situation. As notice of dismissal had been given, I also presented a complaint of unfair dismissal, even though this was before the effective date of termination. These further complaints are all related to the intervening period after the 4 September, up to and including the 27 October 2006; this being the date of dismissal. In addition all of these further complaints are inside the 3 month time limit occurring from the date of dismissal, the 27 th October 2006."
[11]Mr Grewal then went on to make the following claims:(1) failure to provide a written statement of reasons for dismissal(2) failure to pay wages(3) failure to allow time off to seek work during a redundancy situation.[12]On 17 January 2007 Mr Grewal attended the Watford Employment Tribunals Office at Watford and handed in a second form ET1: EAT bundle pages 47-64. That was given the case number 3300167/2007. The material parts seem to me to be as follows:(1) "3.3 Is your claim, or part of it, about a dismissal by the respondent?" Mr Grewal has ticked the answer "Yes".(2) "3.4 Is your claim about anything else, in addition to the dismissal?" Mr Grewal has ticked the answer "Yes".(3) "5 Unfair dismissal or constructive dismissal Please fill in this section only if you believe you have been unfairly or constructively dismissed." Mr Grewal has not answered this section at all.(4) "8 Other payments you are owed" Mr Grewal made a claim for unpaid wages, holiday pay and notice pay.(5) "9 Other complaints" Mr Grewal has claimed (a) failure to provide a written statement of reasons for dismissal (b) failure to pay wages in notice period (c) failure to allow time off to seek work during a redundancy situation and (d) breach of contract. He has added an attachment at section 9 which is in part his letter of 8 December 2006 to which I have already referred. There is nothing in section 9 about unfair dismissal.(6) "10 Other information" Mr Grewal has put in here a reference to a section 10. Section 10 reads as follows:
"Further to your correspondence, dated the 4 January 2007, please find enclosed a claim form for the additional employment complaints, referred to in my letter to the Employment Tribunals dated the 8 December 2006. I would be grateful if you would note that these further complaints are additional to those documented in the original claim, case number 3318116/2006, for which a case management hearing had been arranged for the 16 January 2007. I have been informed that the case management hearing has been rescheduled and a revised date is being communicated. I would be grateful if you would note that I prepared the correspondence of the 8 December after giving my employer adequate opportunity to deal with the matters referred to in the correspondence dated the 8 December 2006. I believe that I have been particularly flexible in this respect I believe that my employer has further neglected my employment rights and as a result I have had to bring this second claim. In my view, there has been a consistent neglect of my employment rights by my employer. I received a P45 from my employer on the 2 December 2006. I would be grateful if this further claim is able to be consolidated with the claim, case number 3318116/2006, relating to race discrimination, unfair dismissal and failure to inform and consult in a redundancy situation."
[13]The Respondent's form ET3 is at EAT bundle pages 82-92. At paragraph 2.3 of that form ET3 the Respondent admits that Mr Grewal was dismissed and that his dates of employment are correct. The grounds of resistance deal only with the following issues(a) unlawful deduction from wages(b) time off to seek alternative employment(c) breach of contract and(d) failure to provide written reasons for dismissal. There was no attempt to answer any claim for unfair dismissal.[14]There was a case management discussion held at Watford Employment Tribunal on 14 February 2007 before a Chairman sitting alone (Mr N Mahoney). Mr Grewal relies on paragraph 3 of the order made at the hearing which says this:
"3. By 25 April 2007 the Claimant is to serve on the Respondent his written witness statement setting out all matters on which he relies in relation to his claims of race discrimination and unfair dismissal."
In my judgment paragraph 5 is also material. It says this:
"5. A Pre-Hearing Review is fixed for 11 June 2007 (one day allowed) for the Tribunal to determine the issues in the case and make any further appropriate orders under Rule 18 of the Employment Tribunals Rules of Procedure 2004."
The Employment Tribunal's judgment and reasons[15]That Pre-Hearing Review did take place on 11 June 2007 before Miss D Thomas. The judgment is at EAT bundle pages 1-2. The written reasons are at EAT bundle pages 3-9. Miss Thomas decided the following. First, she decided that the original form ET1 whether read alone or together with the second form ET1 did not contain a claim for unfair dismissal: reasons paragraphs 1-11. Second, she decided not to exercise her discretion to extend time beyond the original 3 month limitation period from 27 October 2006 ending on 26 January 2007 to permit Mr Grewal to bring a claim for unfair dismissal: reasons paragraph 12-20. Third, she decided that Mr Grewal's claim under sections 188 and 189(1)(d) of the Trade Union and Labour Relations (Consolidation) Act 1992 was misconceived: reasons paragraphs 21-22. The Notice of Appeal[16]The Notice of Appeal is at EAT bundle pages 12-18 and the Respondent's Answer is at EAT bundle pages 19A-19E.[17]In his excellent oral submissions Mr Grewal conveniently divided them into four. I will take each ground in turn. Ground 1[18]Mr Grewal submitted that he had made a claim for unfair dismissal in his first form ET1 in September 2006 and that the Chairman made an error of law in finding that he had not. He referred to the history of the case and complained that the issue had not been raised until the hearing before the Chairman on 11 June 2007. He complained of errors of fact in the reasons such as referring in paragraph 22(3) to his claim for unfair dismissal having been struck out when there was no striking out of the claim but a decision that no claim had been brought within the 3 month limitation period. Mr Kapoor contended that the original form ET1 in September 2006 did not contain a claim for unfair dismissal and in fact neither did the second.[19]I have deliberately set out the history and detail of the two claim forms in detail in this judgment because at the end of the day it is for Mr Grewal to persuade me that the Chairman made a mistake in her construction of the first form ET1. In my judgment it is crystal clear that the first ET1 form did not raise an unfair dismissal claim but merely stated an intention to do so at some later date. Mr Grewal sought to rely on section 111(3) of the Employment Rights Act 1996 which permits a Claimant to bring a claim for unfair dismissal if the claim form is presented after notice is given but before the effective date of termination and he relied on the fact that he had put the effective date of termination i.e. 20 October 2006 in his answer to question 4 on the first form ET1: EAT bundle page 24. However, I do not think that argument can avail Mr Grewal for the following reasons:(1) Paragraph 3.3 of the first claim form specifically denies that the claim or part of it is about a dismissal by the Respondent: EAT bundle page 23;(2) Question 5 which relates to unfair dismissal or constructive dismissal has been left blank: EAT bundle pages 24-25;(3) On the contrary Mr Grewal has made a substantive claim for race discrimination in box 6: EAT bundle pages 26-34;(4) on the contrary Mr Grewal has made a complaint about a failure to consult under section 188 and 189 of the Trade Union and Labour Relations (Consolidation) Act 1992: EAT bundle pages 36-40;(5) In his answer to question 10 on the form ET1 he categorically asserts that "I will be making a claim for unfair dismissal. I believe a dismissal will be unfair…" (my emphasis). He then sets out a series of reasons while he believes the dismissal will be unfair. In my judgment at that time Mr Grewal was quite clearly thinking about making a future claim for unfair dismissal in a further application.[20]However, a similar analysis of the second form ET1 results in the same conclusion. In the second form ET1 Mr Grewal has asserted in his answer to question to 3.3 that his claim or part of it is about a dismissal by the Respondent: EAT bundle page 49. However, I do note the following matters:(1) Question 5 which relates to unfair dismissal or constructive dismissal has been left empty: EAT bundle pages 50-51;(2) The answer to question 8 "other payments you are owed" makes a claim for unpaid wages, notice pay and holiday pay: EAT bundle page 53;(3) The other complaints made in the form in the answer to question 9 do not make a claim for unfair dismissal at all: EAT bundle pages 54-60;(4) Mr Grewal's letter of 8 December 2006 attached to his answer to question 9 of the second form ET1 specifically asserts that the original form ET1 contained a claim for unfair dismissal: EAT bundle page 55;(5) Mr Grewal's answer to question 10 "other information" again does not contain a claim for unfair dismissal in that claim form but again specifically asserts that the first form ET1 did contain a claim for unfair dismissal: EAT bundle pages 54 and 61.[21]In my judgment the fact finding and reasoning of the Chairman in paragraphs 1-11 of her reasons cannot be faulted and is the decision is one which it was well within her discretion to make.[22]I should add that I cannot accept Mr Grewal's complaint that somehow this decision was sprung on him at the hearing. As paragraph 5 of the case management order made by Mr N Mahoney on 14 February 2007 made clear the purpose of the hearing on 11 June 2007 was to identify the issues in claims that Mr Grewal was making. See also paragraph 1 of the Chairman's reasons of 11 June 2007. While it may not have been a point which had occurred to the Respondent it is the Chairman's duty to identify at a pre-hearing review what the issues are to be tried by a Tribunal at a future date. Once the issue had been identified it clearly became a matter of submissions and thee is no doubt that Mr Grewal was more than able to put forward the submissions he wished to make to the Chairman. I found him to be a most thorough and eloquent advocate on his own behalf. Ground 2[23]The second ground of appeal relates to the Chairman's refusal to extend time to permit Mr Grewal to bring a claim for unfair dismissal on the ground that it was reasonably practicable for him to bring the claim within the 3 month period from the date of dismissal whether it be 20 October 2006 or 27 October 2006. The Chairman preferred the latter date as it was most favourable to Mr Grewal. Mr Grewal referred me to the decision of HHJ Peter Clark in this Tribunal in Brock v Minerva Dental Ltd [2007] ICR 917 . Part of the case concerned the striking out of an extant claim for automatic unfair dismissal which was unsuccessful. However, at the same hearing the Chairman had refused the Appellant leave to amend his claim in order to claim constructive unfair dismissal on the grounds that the amendment was a new claim which was out of time and would cause serious prejudice to the employers and had little prospect of success. The appeal was allowed primarily on the ground that contrary to the view of the Chairman the proposed claim was in time and this was a powerful factor in favour of allowing the amendment and the paramount considerations were justice and hardship to the parties as well as other factors.[24]In my judgment this authority does not assist Mr Grewal in this case. If one reads paragraphs 59-63, 67 and 69 of Judge Peter Clark's decision it is quite clear that the overriding factor in his judgment is the fact that the second claim was in time: see especially paragraph 59. In this case the claim for unfair dismissal was not in time by a very long way. As the Chairman pointed out docting the effective date of termination as 27 October 2006 and the last date for bringing a claim for unfair dismissal was 26 January 2007. On 11 June 2007 there was no such claim in existence and it was some 4 ½ months out of time. The Chairman first considered the statutory provision: reasons paragraph 13; made findings of fact(a) based on the Appellant's personal qualities,(b) the fact that he was a member of a large Trade Union and(c) was represented during the statutory consultation period; and considered the Appellant's explanation of why he had not brought a claim in time: reasons paragraphs 13-19. She then reached her conclusion that it was reasonable for the Appellant to have known or investigated the need for a specific claim, and it was reasonably practicable for him to have done so and to have lodged such a claim within the time limit: reasons paragraph 20.[25]In my judgment there can be no challenge to the facts found by the Chairman or to her reasoning. They are clear and cogent. There is no error of law. Ground 3[26]This ground of appeal relates to the Chairman's decision to strike-out the claim under section 188 and 189(1)(d) of the Trade Union and Labour Relations Act 1992 . During oral argument I explained to Mr Grewal that he was acting under a misapprehension as to the scope of those statutory provisions and that section 188 was concerned with the duty of an employer to consult appropriate representatives of any of the employees concerned in the redundancy procedures. Mr Grewal accepted my explanation of the law and accordingly abandoned this ground of appeal. I therefore need say no more about it. Ground 4[27]Mr Grewal's final ground of appeal was a complaint of bias on the part of the Chairman on 11 June 2007. During the course of oral submissions Mr Grewal made clear that his complaint of bias was not about that part of the judgment which related to the first three grounds of appeal but to the case management order which was made on the same date: EAT bundle pages 101-104. This case management order is in standard form and related to the preparations for the hearing of Mr Grewal's claim for race discrimination. Mr Grewal pointed me to a number of matters contained in that case management order. They are fully set out at paragraphs 2.01-2.10 of his Notice of Appeal: EAT bundle pages 16-17.[28]The test for bias is well known: see Yeboah v Crofton [2002] IRLR 634 at paragraphs 92-95 per Mummery LJ. It is quite clear that the hurdle for an Appellant to successfully show bias is a very high one. I have listened very carefully to Mr Grewal's submissions and considered each point that he raises in his Notice of Appeal. However, I am quite unable to find that Mr Grewal's criticisms come anywhere close to showing bias on the part of this Chairman. Conclusion[29]For these reasons the appeal is dismissed.