RULE 3(10) APPLICATION - ONLY v MR D LLOYD-JONES T/A CHESHIRE TREE SURGEONS [2008] UKEAT 0710_07_1405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0710_07_1405Case No Appeal No. UKEATPA/0710/07/DA UKEATPA/1135/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
RULE 3(10) APPLICATION - ONLYMR D LLOYD-JONES T/A CHESHIRE TREE SURGEONSRESPONDENT
Before
His Honour Judge Peter ClarkDate 14 May 2008
[1]APPEARANCES For the Appellant MR P WALLINGTON (One of Her Majesty's Counsel) Appearing under the aegis of the Employment Law Appeal Advice Scheme. For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE AND PROCEDURE Time for Appealing Disposal of appeal including remedy UNFAIR DISMISSAL UNLAWFUL DEDUCTION CONTRACT OF EMPLOYMENT: Damages for breach of contract Appeal against Registrar's Order. Effect of Certificate of Correction to ET judgment. Interrelationship between Rules 3(7) and 3(10) of EAT Rules. HIS HONOUR JUDGE PETER CLARK Introduction This long-running litigation has been proceeding in the Liverpool Employment Tribunal. The parties are Mr Keith Kennaugh, Claimant, and Mr David Lloyd-Jones trading as Cheshire Tree Surgeons, Respondent. I shall so describe them. There are before me for oral hearing today(1) an appeal by the Claimant against the Registrar's Order seal dated 9 January 2008 in PA/0710/07/DA treating his Notice of Appeal lodged on 29 May 2007 as being out of time and refusing an extension of time for appeal (the Registrar's Appeal) and(2) an application by the Claimant under EAT Rule 3(10) for permission to proceed with his appeal in PA/1135/07/DA following a direction that no further action be taken on that appeal under Rule 3(7) made by Elias P for reasons set out in a letter dated 17 December 2007. Procedural History[2]It is first necessary to set out the somewhat tortuous progress of this litigation.[3]By his claim form ET1 dated 2 April 2005 the Claimant contended that he was employed by the Respondent as a tree surgeon from 10 February 2004 until an unspecified date in February 2005. He raised the following complaints:(1) Unfair dismissal. He gave the following particulars of that claim: "My employer has simply stopped paying me. He has not stated why. He has implied it is due to trivial damage to vehicle bull bars, for which he holds me responsible and has stated that I caused the damage deliberately. Last summer he terminated my contract when I took some time off sick as I was unable to work due to an injury. My return was re-negotiated by his subordinates."(2) Unlawful deductions from wages/breach of contract including outstanding wages, Statutory Sick Pay, bank holiday pay and other amounts "to be determined".[4]The claims were resisted. By his Form ET3 the Respondent contended that he engaged the Claimant on a self-employed basis. He was not an employee. Further, and in the alternative, if he was an employee his period of continuous service ran only from 12 November 2004 until 18 February 2005. He had therefore not completed one year's continuous service entitling him to 'ordinary' unfair dismissal protection under s108(1) of the Employment Rights Act 1996 (ERA) . As to whether the Claimant was relying on dismissal for a reason to which the one year rule does not apply by virtue of section 108(3), I shall return to that question later. In addition, the Respondent put in issue each head of unlawful deduction/breach of contract claims.[5]As to the early procedural steps in the litigation, I am assisted by the judgment of HHJ Serota QC delivered on behalf of a three member division of the Employment Appeal Tribunal sitting on 14 July 2006 at a Full Hearing of the Claimant's appeal in UKEAT/0032/06/LA.[6]The decision then under appeal was that of an Employment Tribunal chaired by Mr M D Homfray-Davies (referred to as Mr M D Humphrey Davis at paragraph 1 of the EAT judgment) sitting on either 22 July (paragraph 1) or 22 June (paragraph 6) 2005. The upshot of that hearing was a curious order in these terms (EAT judgment para.1):
"By consent the Claimant was awarded £135 for work done in week 43 of 2004 without any admission of liability'. Other claims were dismissed as being time-barred and Judge Serota noted (paragraph 1): "
It was also asserted that the contract had been terminated to avoid paying statutory sick pay and that issue again was not determined."[7]It seems that I sat on a preliminary hearing of the appeal and permitted it to proceed to the full hearing before Judge Serota's division. Both before me and before Judge Serota and members the Claimant was represented, pro bono under the ELAAS Scheme by Mr Marc Jones, a Solicitor-advocate.[8]The upshot of the appeal was that it was allowed and the matter was remitted to the Employment Tribunal for rehearing.[9]The next procedural step which I am able to discern from the papers was a Case Management Discussion (CMD) before an Employment Judge, Mr D Read, held on 11 January 2007. I see from paragraph 5 of the written reasons promulgated by Employment Judge Robinson and dated 13 April 2007 that Mr Read directed a Pre-Hearing Review (PHR) to determine the following issues:(1) Whether the Claimant is an employee or self-employed.(2) Whether he had qualifying service to claim unfair dismissal.[10]That PHR was held by Employment Judge Robinson on 23 March 2007. Both parties appeared in person. By this time it seems that the Claimant had raised further claims of religious and race discrimination. Directions were given for the disposal of those claims at a further PHR, to then be followed by a CMD to decide how the outstanding claims were to be progressed.[11]As to the two preliminary issues identified by Employment Judge Read, Employment Judge Robinson decided:(1) that the Claimant was an employee of the Respondent, but(2) that he had not completed one year's continuous service and accordingly his claim for unfair dismissal was dismissed. Further, Employment Judge Robinson (a) dismissed a claim of failure to provide written pay statements on withdrawal by the Claimant, (b) dismissed a claim for failure to provide a guaranteed payment and (c) noted that claims for damages for breach of contract and unlawful deductions remained to be dealt with. Those orders and judgments were promulgated with the reasons on 13 April 2007.[12]The Claimant wrote to Employment Judge Robinson on 19 April. Two points should be noted. At paragraph 3 the Claimant queried a reference to s282 Employment Rights Act 1996 (ERA) at paragraph 19 of those reasons. Secondly, he invoked s108(3)(g) ERA and asked the Judge to reconsider his decision, I infer to dismiss the claim of unfair dismissal; on the basis that the Claimant did not have one year's continuous service: such length of service not being necessary for a claim of unfair dismissal based on an alleged reason that the Claimant asserted a statutory right under s104(1) of the Act.[13]In response, it would appear, to that matter, Employment Judge Robinson issued a Certificate of Correction. I should set out the form of correction in full:
"CERTIFICATE OF CORRECTION Under the provisions of Rule 37 of the Employment Tribunals Rules of Procedure 2004, I hereby correct the clerical mistake in the judgment sent to the parties on 13 April 2007 by deleting the judgment thereto, and substituting therefore the judgment attached hereto."
That certificate was signed by the Chairman (now Employment Judge) and dated 26 April 2007.[14]Attached to that certificate was a copy of the judgment and reasons dated 13 April 2007, with a single amendment to paragraph 19 of the reasons. The original typographical error, s282, ERA was altered to s212, the section referred to earlier at paragraph 16. The ERA ends at section 245.[15]Pausing there, that Certificate of Correction is central to the point raised in the appeal against the Registrar's Order in PA/0710/07/DA (the Registrar Appeal). If the 42 day time limit for appealing to the EAT runs from the date of the original judgment then the appeal, lodged on 29 May 2007, is four days out of time, as the Registrar held.[16]However, the position is further complicated. Looking at the chronology initially lodged by the Claimant, he stated that he originally lodged the original judgment dated 13 April with his Notice of Appeal dated 29 May. That appeal was rejected as out of time by letter from the Employment Appeal Tribunal dated 1 June 2007. On 4 June 2007 the Claimant informed the Employment Appeal Tribunal of the Employment Tribunal correction, enclosing the Certificate of Correction and stating in the email the nature of the correction. He was asked to provide a copy of the Certificate of Correction and the attached judgment and on 9 June did so by email.[17]In these circumstances I called for the EAT file in PA/0710/07/DA. From the file, the position appears to be as follows. The Claimant did indeed lodge the original Employment Tribunal judgment promulgated on 13 April 2007 (paragraph 19 of the reasons refers to s282 ERA) with his Notice of Appeal on 29 May. On 31 May the Employment Appeal Tribunal wrote to the Claimant informing him that the appeal was properly instituted but was four days out of time. By an email dated 4 June the Claimant said this:
"Please accept my apologies as I have sent a copy of the wrong judgment … The corrected record was sent out on 26 April 2007, which I believe puts the appeal in time. I enclose a copy of the Certificate of Correction. The error was in paragraph 19 which reads, "19. Section 282 of the Act …'"and should read "19. Section 212 of the Act …'"
I have not enclosed a copy of the corrected record as the two are almost identical."[18]On 7 June, the case-handler, Ms Armstrong, wrote to the Claimant in these terms:
"I refer to your email of 4 June 2007. By return please provide a copy of the ET judgment you say was corrected and sent to the parties on 26 April 2007. No further action will be taken on the above numbered potential appeal until such time as the judgment/reasons are received."
[19]On 9 June, the day on which the Claimant received that letter, he emailed Ms Armstrong attaching a copy of the Certificate of Correction dated 26 April and the corrected judgment, altering the reference to s282 in paragraph 19 of the reasons to s212 ERA. The corrected judgment remains dated 13 April.[20]For completeness I should add that on 11 June 2007 Ms Armstrong wrote to the Employment Tribunal asking whether time for appealing ran from the judgment date, 13 April, or the date of the Certificate of Correction, 26 April. Employment Judge Robinson replied, through the Employment Tribunal Secretariat by fax, on 11 June, proffering the opinion that time started running from 13 April, notwithstanding the correction. I note that the Registrar agreed with the Employment Judge's opinion and indeed attached a copy of his letter to her order dated 9 January 2008. The delay in making that order was caused by a debate as to whether or not the Claimant had withdrawn his appeal. The extension of time application was made by the Claimant on 1 November 2007; the Respondent opposed that application by letter dated 19 November; the Claimant responded on 17 December. Having considered those representations, the Registrar then made her order.[21]The further hearing into the claims of breach of contract and unlawful deductions, signalled by Employment Judge Robinson in his order promulgated on 13 April 2007 came before that same Judge for substantive hearing on 28 June 2007. By a judgment with reasons dated 16 July 2007 those claims were resolved; in part by agreement between the parties and with some claims being dismissed.[22]Against that part of the judgment which dismissed some of his claims, the Claimant appealed by a notice dated 24 August 2007 alleging bias on the part of the Judge, (PA/1135/07/DA). That Notice was initially considered on paper by HHJ Pugsley, who directed the Claimant to file an affidavit particularising the bias allegations, by an order dated 1 October 2007. The Claimant did so. His affidavit was sworn on 19 October 2007. The Employment Judge provided comments on the affidavit received at the Employment Appeal Tribunal on what appears to be 20 November.[23]The matter was then further considered by Elias P on paper. He gave the direction on 17 December which has led to the Rule 3(10) application now before me. The Registrar Appeal[24]Following receipt of the Registrar's Order, the Claimant wrote to her on 13 January 2008, drawing attention to the judgment of Burton J in Aziz-Mir v Sainsbury's Supermarket Plc (UKEATPA/0537/06/JOJ. 15 December 2006. Unreported). He contended that the present case was virtually identical to Aziz ; that time should run from the date of the corrected judgment and that his appeal was therefore in time. He asked the Registrar to reconsider her decision; alternatively indicated his desire to appeal that decision. That letter was treated as an appeal against the Registrar's decision; that is the appeal now before me.[25]In advancing this appeal, Mr Peter Wallington QC, appearing on behalf of the Claimant under the ELAAS Pro Bono Scheme has developed the Aziz-Mir point.[26]In that case the Employment Tribunal judgment was promulgated on 23 March 2006. The time for appealing therefore expired on 4 May. The Claimant lodged his Notice of Appeal on 5 May, ostensibly one day out of time. The original Employment Tribunal judgment had been corrected in a minor respect on 6 April. By that Certificate of Correction, the Employment Judge certified that the old reasons were deleted and new reasons substituted therefore.[27]The Registrar held that time began running from 23 March. A member of the Employment Appeal Tribunal staff had inquired of the Employment Tribunal when the Employment Judge considered time began to run, and he expressed the opinion, whilst thinking it was a matter for the Employment Appeal Tribunal, that the earlier date applied. The Registrar agreed. She concluded that the appeal was out of time and refused to extend time.[28]On Appeal, Burton J drew a distinction between a simple correction to the original judgment and reasons and a complete substitution of a fresh judgment. In the latter case, he held, time ran from the date of correction; alternatively, there was sufficient doubt to justify exercising his discretion to extend the time. The appeal was allowed.[29]On the face of it, there appears to be no material distinction between the facts of Aziz-Mir and the present case. Like Burton J I also take the view that the decision as to when time begins to run is for the Employment Appeal Tribunal, not the Employment Tribunal. However, I have one concern, this being a rehearing of the time issue, of which I gave Mr Wallington advance notice yesterday. The Claimant in this case did not lodge the corrected judgment with his Notice of Appeal, but the original judgment. Rule 3(1)(c) of the Employment Appeal Tribunal Rules requires an appellant to lodge with his Notice of Appeal, among other documents, a copy of the Employment Tribunal judgment which is subject to appeal and the written reasons for that judgment. Since the Claimant's argument in this appeal depends on the corrected Employment Tribunal judgment and that judgment was not lodged until 9 June, it seemed to me to be arguable that the relevant judgment was not lodged until two days after the 42 day time limit, running from the date of correction, 26 April, had expired.[30]Mr Wallington accepts, having considered the point and taken instructions, that if time runs from the date of the Certificate of Correction then strictly the relevant, corrected judgment against which this appeal is brought was not lodged with the Notice of Appeal and indeed was not lodged until two days after the time for appealing had expired. In that sense the appeal was not properly instituted in accordance with Rule 3(1)(c). However, he points out that on 4 June, within time, the Claimant supplied all the information required. He was then asked to provide the corrected judgment and reasons and did so by return. In these exceptional circumstances he invites me to exercise my discretion in favour of the Claimant to extend time until the formalities were finally completed on 9 June.[31]My view of this appeal is as follows:(i) I agree with Mr Wallington following the judgment of Burton J in Aziz-Mir that the effect of this corrected judgment, substituting the fresh judgment and reasons for the old, was to start the time for appeal running from the date of correction, not the date of the original judgment. To this extent, I disagree with the learned Registrar's analysis. In particular, I repeat my view, echoing that of Burton J, that the opinion of the Employment Judge as to when time starts to run is wholly immaterial.(ii) Technically, as Mr Wallington properly concedes, the appeal was not properly instituted in time. The Claimant was in error in lodging the original judgment rather than the corrected judgment with the Notice of Appeal. However, I accept the submission that the Claimant had done everything bar lodging the corrected judgment and reasons to bring the matter to the attention of the Employment Appeal Tribunal within time. When asked for the document he supplied it immediately. In these circumstances, I have concluded that the proper course is to exercise my discretion in favour of extending time, particularly in circumstances where the appeal against the Registrar's reasoning succeeds and the technical breach is one which I raised of my own motion.(iii) I am told by Mr Wallington, who sits as a part-time Employment Judge, that he recalls the President of Employment Tribunals, HHJ Meeran circulating his Judges, then Chairmen, after Burton J's judgment in Aziz-Mir was published, drawing attention to the suggestion as to practice when correcting judgments contained in paragraph 11 of that judgment. I shall direct that this judgment be transcribed and posted on the Employment Appeal Tribunal website and that a copy be sent directly to the President so that he may consider re-issuing his earlier advice to Employment Judges following Aziz-Mir . I respectfully endorse the comments of Burton J in that paragraph of his judgment.(iv) The outcome is that I shall allow the appeal against the Registar's Order and direct that the appeal PA/0710/07/DA be treated as being lodged in time, time having been extended as earlier indicated.(v) Having considered the submissions advanced by Mr Wallington as to the underlying substance of the appeal, which raises the issue of continuity of employment under s212(3) ERA , I shall direct that the appeal proceed to a full hearing, with the directions given during the hearing. Further to those directions, I shall direct that it be listed before me on the same day as the adjourned Rule 3(10) application hearing to which I turn next. Rule 3(10) Application PA/1135/07/DA[32]This application raises a further procedural question. The original Notice of Appeal having been rejected by Elias P on paper under Rule 3(7), by letter dated 17 December 2007, the Claimant then did two things. First, on 10 January 2008, he expressed dissatisfaction with the President's opinion and exercised his right under the EAT Rules to an oral hearing under Rule 3(10). Secondly, on 11 January he lodged a fresh Notice of Appeal under Rule 3(8) which raised different grounds of appeal.[33]Asked by the case-handler whether he wished to pursue the application under Rule 3(8) or Rule 3(10) by letter dated 28 January, the Claimant replied by email on 30 January saying this:
"I was not aware that rule 3(8) and 3(10) were mutually exclusive as I could see nothing in the rules to suggest this. Had I known, I would have addressed the matter slightly differently. Unless you intend to declare the appeal lodged under rule 3(8) as out of time because of the error, then I think this would be the preferable way to proceed, otherwise, go with the application under rule 3(10)."
[34]The response from the case-handler dated 1 February repeated the original question, Rule 3(8) or Rule 3(10), advising the Claimant that absent a reply by 8 February further directions would be given without reference to him. No reply having been received the matter was then fixed for this Rule 3(10) hearing. The second Notice of Appeal has not gone through the paper sift procedure.[35]Turning to the substance of the appeal, the first Notice of Appeal, as I noted earlier, alleged bias. On behalf of the Claimant, Mr Wallington no longer pursues those allegations. However, he now wishes to pursue allegations principally contained in the fresh grounds of appeal: that the Employment judge failed to consider and determine issues said to have been raised by him at the Pre-Hearing Review held on 26 June 2007. I note that none of these claims appears in paragraph 2 of the Judge's reasons dated 16 July.[36]The procedural question which arises is this. Is an appellant entitled to a Rule 3(10) hearing in relation to an initial rejection under Rule 3(7) whilst maintaining a Rule 3(8) application for fresh grounds of appeal to be considered on paper and, if then rejected, to make a further Rule 3(10) application in relation to the fresh grounds of appeal? Mr Wallington submits that there is nothing in the Rules to prevent that course.[37]On the facts of this case I do not find it necessary to answer that question definitively. It may be a matter for the President of the Employment Appeal Tribunal to consider before issuing any alteration to the present Practice Directions, in particular, paragraph 9.6. My tentative view is that if an appellant lodges fresh grounds of appeal that Notice should be sifted, and if rejected he then has a right to an oral hearing under Rule 3(10). The course proposed in the question which I have posed seems altogether too unwieldy.[38]In the present case the Claimant indicated, as I read his email of 30 January, that his preference was to follow the Rule 3(8) route, subject to any time point. His query as to time was not answered; but he did not reply to the Employment Appeal Tribunal letter of 1 February. In these circumstances, bearing in mind that the Rules of Procedure should be the servant not the master of the pursuit of justice, I proposed without dissent from the Claimant, through Mr Wallington, this course: I would consider an application to amend the original Notice of Appeal to substitute new grounds of appeal. Having considered the draft amended grounds placed before me by Mr Wallington I shall allow the amendment in those terms. Secondly, since those grounds necessarily require further comments of Employment Judge Robinson I also invited Mr Wallington to draft questions formulated under the Burns/Bark e procedure arising out of the amended grounds of appeal. He has done so.[39]In these circumstances, the order I make in PA/1135/07/DA is as follows:(1) The application under Rule 3(10) is adjourned to come back before me.(2) Permission to amend the original Notice of Appeal by substituting the grounds contained in the draft lodged by Mr Wallington as granted. The fresh grounds of appeal dated 11 January 2008 are formally dismissed.(3) The Employment Judge is asked to answer, if practicable within 28 days, the draft questions lodged by Mr Wallington. Copies of the Judge's response will be sent to the parties once received,(4) The Rule 3(10) application is to be restored for hearing before 21 July 2008 on the same date as the full hearing of the appeal in PA/0710/07/DA before me sitting alone.