MR E SCERBAKS v PERTEMPS RECRUITMENT PARTNERSHIP LTD [2010] UKEAT 0029_10_1904

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0029_10_1904

Case No Appeal No. UKEAT/0029/10

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR E SCERBAKSAPPELLANT

PERTEMPS RECRUITMENT PARTNERSHIP LTDRESPONDENT

Before

His Honour Judge McMullen

Date 19 April 2010

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent MR S O'BRIEN (of Counsel) Instructed by: HBJ Gateley Wareing LLP Solicitors One Eleven Edmund Street Birmingham B3 2HJ SUMMARY JURISDICTIONAL POINTS Claim in time and effective date of termination On the Employment Judge's findings, the claim was presented 3 days out of time, it was reasonably practicable for the Claimant to comply and there were no reasons to enlarge time. As the judge had unsatisfactory evidence from both sides, he was entitled to prefer the Respondent's. Inequality of arms at the Employment Tribunal or the EAT was not made out. There is nothing to daunt an employee telling his story and asking for discretion. HIS HONOUR JUDGE McMULLEN QC This is an appeal against the judgment of Employment Judge Warren sitting alone at a PHR at Leicester, registered with reasons on 29 August 2009. The issue for determination was whether the claim made by the Claimant Mr Scerbaks was in time. The Claimant represented himself. The Respondent was represented by Mr Sean O'Brien of counsel and I will correct the record accordingly.

[2]The limitation period for unfair dismissal is three months: Employment Rights Act 1996 ss 97 and111. The judge decided that the claim was out of time. It was common ground that it was presented to the Employment Tribunal on 7 March 2009. That means that the effective date of termination had to be 8 December 2008 or later. The Claimant appealed against that judgment.

[3]He has been the object of substantial criticism made on behalf of the Respondent for his preparation for this hearing and narrowly escaped an application that the appeal be dismissed. The Claimant put before the Registrar very earnest representations about his being an ordinary working-class man unable to cope with the rigours of an appeal to the EAT, and the Registrar had sympathy with him and decided to reject the Respondent's application to dismiss the appeal. Nevertheless, he has not attended today and indicates that the matter should go ahead.

[4]I too will not regard him as at a disadvantage in representing himself. But not being here to deal with Mr O'Brien, who attends today bristling with a written skeleton argument which I find wholly compelling, does place him at a natural but not unfair disadvantage. I bear in mind the Claimant says this:

"Every letter we receive write etc consumes from us unconscionable resources. Every communication causes us to drill through a matter for us yet unknown. And even if we manage to hobble through proceedings - we still struggle to get proper legal grip of the case in terms of legal deployment of our argument in the context of the case. It is obvious that we are simple working class people who's socio-economical function is miles away from the job we are trying act on. We are just ordinary men trying to do extraordinary things."

[5]With that engaging plea in mind, I turn to what was not a difficult task. It was simply for Mr Scerbaks to explain why he thought he was dismissed in December 2008 and why he put in his claim on 7 March 2009. He had to identify dismissal or constructive dismissal on or after 8 December 2008. The judge was fully alert to the difficulties in the evidence. He regarded both the evidence of the Claimant and of Mr Whiteman as unsatisfactory and so had to draw conclusions from the material which was given to him. He had to take account of the way in which each gave his evidence. To those of us in an appellate court, that form of words is unusual these days, but in this case it was fully justified. The judge preferred the evidence of Mr Whiteman. That is easy to do since the Claimant on three occasions in his claim and in other parts of his evidence asserts events occurring prior to 8 December 2008.

[6]The judge therefore made a finding as to what was the effective date of termination for the purposes of sections 97 and 111. It was 5 December 2008, when Mr Whiteman telephoned the Claimant and told him he was no longer required to work as an agency worker on the Weetabix contract, Weetabix being the end user. He became angry, wanting his P45 so he could get Job Seekers Allowance or work elsewhere. Mr Whiteman took that at face value and accepted it as a resignation although reluctantly. That was a finding for the judge to make.

[7]The case cannot be said to be one of perversity meeting the high standard required of such an Appellant, see Yeboah v Crofton

[2002] EWCA Civ 794

; an overwhelming case needs to be made. Here the judge had evidence from both sides and had to make up his mind. The Claimant has not identified any relevant event occurring on 8 December. The best he can say is that the non-response of the Respondent by 8 December constituted either a constructive dismissal or a dismissal. It seems to me that this is reasoning after the fact, knowing that he had to meet that target. That is an impossible contention and in my judgment this perversity charge cannot be made out. I accept in full the written arguments of Mr O'Brien without calling on him. The judge made a decision which was open to him on this material and no error of law arises.