Appeal No.EAT/0035/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2000

Before
MR COMMISSIONER HOWELL QC
MR L D COWAN
MR R SANDERSON OBE

1) MR K R SAVIDGE 2) MR P R GIBBONS	APPELLANTS

CITY PETROLEUM COMPANY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the first Appellant	Mr K R Savidge
In person	

MR COMMISSIONER HOWELL QC		In this case which comes before us today for a Preliminary hearing, Mr Keith Ronald Savidge seeks to pursue an appeal against the decision of a one man Employment Tribunal, set out in extended reasons dated and sent to him on 8 October 1999 after consideration of the case at an oral hearing on 16 September 1999, those reasons being set out at pages 3-8 of the appeal file before us.

1.	The complaint before the Tribunal was one by Mr Savidge of unfair dismissal on the part of a company he alleged to have been his employer called the City Petroleum Company Ltd.  That is either a subsidiary of a company connected with the Shell Petroleum Company, and what Mr Savidge did was operate a petrol station selling petrol and various other goods under a “tied” station arrangement with Shell.  He had been the petrol station and store manager at all material times.

2.	As he explained to us, there had been a developing dispute between himself and other managers in a similar position on the one hand, and the Shell Organisation on the other, with regard to the managers’ employment status.  They had a succession of contracts, under which they were stated to be self employed.  So far he was concerned, from 1995 onwards. he carried on business as a self-employed sole trader under a contract to Shell; he paid his own VAT and was registered for that purpose.  He paid tax as a self-employed person and claimed his expenses on that basis and he paid National Insurance contributions as a self-employed person.  However with an increasing tightening-up by Shell of the degree of day to day control that they sought to exercise over the management of the petrol stations and stores run by persons in a similar position to Mr Savidge, the issue began to be ventilated of whether people in this position were really genuinely self-employed traders at all or should be regarded as employees of Shell or its associated companies.  That issue was becoming a live one, to the knowledge of Mr Savridge, by at any rate late Summer 1998 on 4 August 1998, as a result of a disagreement with Shell (or the City Petroleum Company with whom he dealt) about the terms of the latest contract they sought to impose on him which he considered unacceptably restrictive, he severed his business relationship with them and ceased to manage the petrol station.

3.	Following the break-up of the relationship and his departure from the management of the petrol station he sought to get other employment and at that stage, within a matter of a week or so after the 4 August 1998, he visited a job centre in Ruislip with a view to seeking other employment.  He saw there a Clerk in the job centre with whom he discussed his position as regards Shell and mentioned that his treatment had been tantamount to a “constructive dismissal” She and he discussed together whether there was any possibility of a claim for unfair dismissal but the conclusion they reached after consulting some departmental material was that because he understood himself to be a self-employed person, there was no prospect of bringing a case to an Industrial Tribunal against Shell and claiming compensation.  

4.	In parallel to that, a separate question had arisen comprising Mr Savridge’s raising Mr Serving’s employment status.  That was as a result of an accident in November 1996 when he had fallen down an open manhole on the forecourt of the petrol station and had suffered injuries to his leg.  He had been off work for a period of some months and had either immediately or at some later stage, claimed industrial injuries benefit for his injuries under the National Insurance scheme.  It is a precondition of a claim for benefit under the Industrial Injuries scheme that a claimant must be a person in “employed earners’ employment” for the purposes of the Social Security Contributions and Benefits Act 1992.  His claim to benefit was initially rejected on the basis that he was a self employed person but he took the matter to appeal and as a result of a very prolonged process of determination and appeal, it was eventually determined (by the Secretary of State by a certificate dated 31 March 1999 which is before us at page 17 of the appeal file) that he had, for Social Security purposes counted as being “employed in employed earner’s employment” so as to qualify him for benefit on that basis under the industrial injuries insured scheme.

5.	It was only after receiving that determination at the end of March 1999 that Mr Savidge took up again the question of whether he might also have a claim for unfair dismissal against City Petroleum Company Ltd on the footing that he had been an employee of theirs and had been unfairly dismissed by them on 4 August in the previous year.  There is no dispute that for the purposes of bringing a complaint to an industrial tribunal for the events which took place on 4 August 1998, the “effective date of termination” was that date, 4 August 1998 and not any later date.  Over two months after receiving the Secretary of State’s determination as to his employment status for the industrial injuries scheme, Mr Savidge did for the first time make a compliant to the Employment Tribunal.  His originating application, which is dated 7 June 1999, is at pages 9-18 of the appeal file before us.  It emphasises that it is a complaint of unfair dismissal but seeks an initial determination as to Mr Savidge’s employment status for the purposes of the employment legislation and asserts that the compliant is made within the statutory limit of three months because it was being made within three months of the decision by the Secretary of State for Social Security. 

6.	As the originating application dated 7 June 1999 was far outside the specified time limit under Section 111 Employment Rights Act 1996, the issue of whether the time limit should be extended under Section 111 (2) (b) came before a Tribunal Chairman sitting alone for determination on Thursday 16 September 1999.  On that day, Mr Savidge appeared on behalf of himself, and another applicant who was then bringing a similar claim, but with whom we are not today concerned and accepted specifically, as recorded in paragraph 16 of the Chairman’s statement of reasons that “there could be no argument” under section 111 (2) (a) that his complaint was made within time as having been presented to the Tribunal before the end of three months beginning with the effective date of termination on 4 August 1998.

7.	The issues that were considered by the Tribunal, on which Mr Savidge presented argument and referred to some authorities, came down to the normal questions arising under Section 111(2) (b) of the Employment Rights Act 1996: namely whether the Tribunal considered it reasonable to extend the normal three month time limit on the ground that it was satisfied it was not reasonably practicable for his complaint to have been presented before the end of three months from 4 August 1998.  On that the Chairman, as recorded in paragraphs 20-21 of his statement of reasons, determined first that in the circumstances of the case before him it had not been established that it was not “reasonably practicable” for the complaint to have been presented within the normal three-month time limit from August 1998 as he said in paragraph 20: - 
20) “These applications are over seven months beyond the prescribed time limit.  In my view each applicant had ample opportunity to make enquiries and pursue the issue.  I am surprised that Mr Savidge was content to rely on an opinion of a junior member if the Job Centre, especially as he was challenging the perception of his employment status by the Secretary of State.  I conclude that it was reasonably practicable, or to use the language of Palmer & Saunders –v- Southend-on Sea Borough Council, reasonably feasible for these applications timeously to have been made.”

8.	He further concluded, as recorded in paragraph 21, that in any event even if some question might have arisen about what should or should not have been possible in 1998, in any case: - 
21) “Both these applications were not presented within such further period as was reasonable upon the determination of Mr Savidge’s appeal.  He was told on 1 April that for the purpose of the Social Security Administration Act 1992 that he was employed in employed earner’s employment.  This finding is not, of course, necessarily determinative for the purposes of the Employment Rights Act 1996.  This information was immediately communicated to Mr Gibbons and the applicants discussed their options… Mr Savidge says that he was wondering whether the respondent would appeal within the 28 day period which expired before the commencement of May.  Another six weeks expired before the presentation of the applications…In this case 2 ½ months has elapsed from the notification to Mr Savidge on 1 April.  There was no reason why applications were not presented or even allowing for the possibility of an appeal by early May which was when Mr Gibbons has completed and dated his application.”

9.	For those reasons the Chairman concluded that this application was out of time and it was not right to exercise his power to extend the time limit under Section 111 (2) (b).  Consequently he dismissed the complaint of unfair dismissal by reason of the Tribunal’s lack of jurisdiction.  Against that dismissal Mr Savidge appeals, on the grounds set out in his Notice of Appeal at pages 1-2 dated 10 November 1999 and his skeleton argument used as the basis for his argument before us. Mr Savidge, who has presented his case to us reasonably and clearly today, founded in particular on his own understanding that for practical purposes time did not start to run against him on whether he was an employed or self employed person for the purposes of bringing proceedings under Employment Rights Act that act until after he had received the determination of the Secretary of State for Social Security on his status for the purposes of the social security legislation.  His primary submission to the Tribunal had been based on his assumption as recorded in paragraph 3 (d) of his skeleton argument, that he had only become eligible then and could bring a claim within three months from 31 March 1999 on which the Secretary of States’ determination had been made.  That argument is plainly mistaken and it not in our judgment possible to say that there was any error of law on the part of the Tribunal Chairman in failing to take account of it.  Section 111(2) (a) is absolutely clear that the normal three month time limit is measured from the effective date of termination of the employment and from no other date.  Therefore, any measurement of the three month time limit applicable to this case must have been a three months time limit beginning on 4 August 1998, whether or not the issue of Mr Savridge’s employed status had been determined by then for any other purpose.

10.	The issues for any possible appeal on law therefore come down to the familiar questions of whether in exercising the power, which as he accepted he did have under Section 111(2) (b), to extend the three month time limit for a further reasonable period, the Tribunal Chairman erred in any way in law in his approach to the questions of “reasonableness and reasonable practicability.”

11.	We have been quite unable to find any arguable ground on which it can be said that the Tribunal Chairman erred in the way he approached those issues in this case The Secretary of State’s determination under the Social Security Legislation as regards:- “employed earner’s employment status” is for the purposes of that legislation, and that legislation alone.  While no doubt a relevant consideration for any Employment Tribunal proceedings, a determination by the Secretary of State under that separate legislation neither binds an Employment Tribunal determining the question of employment status in an employment law context, nor precludes them from deciding for themselves whether an applicant is employed or self-employed under the general law so as to found jurisdiction for the Tribunal to entertain a complaint of unfair dismissal.  In particular, a determination by the Secretary of State under the Social Security Act’s is in no way a precondition to the ability to make an originating application before an Industrial Employment Tribunal.  That is something that has to be pursued, if at all, in parallel on its own merits, and in its own way.

12.	The decision on whether to grant an extension comes down to a judgment of fact and degree on the circumstances of the particular case.  That is a matter for the Employment Tribunal and not for us to determine. Mr Savidge referred us to instances where in other cases time limits for an application to the Tribunal had been extended.  However in this area the results of other cases can never be more than illustrative and we are not satisfied from what we have seen that there is any arguable ground for saying that the Tribunal Chairman misdirected himself as to the questions to be addressed or that he applied the statutory provisions wrongly.  His reasons in our judgment are clearly and adequately expressed in the two paragraphs to which we have already referred.  We therefore have to conclude that, despite what we accept was a genuine misunderstanding of the position on Mr Savridge’s own part, that does not give him any arguable ground for saying that on the law his case was in any way wrongly dealt with by the Tribunal Chairman who dismissed his application. For those reasons we must dismiss this appeal which we now unanimously do.