Appeal No.EAT/0727/02 MA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 2002

Before
HIS HONOUR JUDGE D PUGSLEY
MRS R CHAPMAN
MR D NORMAN

MRS A WHITMORE	APPELLANT

COMMISSIONERS OF INLAND REVENUE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS DAPHNE ROMNEY
(of Counsel)
APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME	

HIS HONOUR JUDGE D PUGSLEY

1	It would be difficult for anyone to look at this case without a great deal of shame and embarrassment and to see it as being a most unfortunate result of the various forms of concurrent jurisdiction that pertain.  We want to make it clear that we are not criticising the Chairman, members of the Tribunal, Mrs Whitmore, nor the Revenue but this case has led to the expenditure of money to no avail.

2	Courts can no longer stand by and watch thousands of pounds being wasted, not on the merits of the case, but on which letterbox or which box is ticked.  That is a denial of justice and it makes a mockery of the express purpose of establishing Tribunals.

3	Mrs Whitman suffered from repetitive strain injury.  There was an issue arising out of whether she was entitled to certain typing proficiency payments between 1997 onwards.

4	This matter came before an Employment Tribunal.  It is common ground that her employment had come to an end on 30 April 2001.  Her complaint was as a breach of contract and the Originating Application was presented on 29 March.  The Chairman took the point which had been overlooked by Counsel for the Respondent that under Article 7 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 a Tribunal should not entertain a complaint in respect of a contract claim by an employee unless it is presented within a period of 3 months beginning of the effective date of termination of the relevant employment.

5	The complaint was presented on 29 March 2001 and, as everybody agrees, the employment was terminated a month later; 30 April.  The Tribunal found that it had no jurisdiction, but it declined to deal with the matter as a Wages Act 1986 case.  It felt that that was not as how it had been put; it was plainly and unequivocally expressed as being for breach of contract alone.

6	The Tribunal invited the Respondent’s Counsel to take instructions on the attitude the Respondent would take if the Applicant were to avoid the hearing being abortive to issue at once a fresh complaint in the same terms and to argue it had not been reasonably practicable to be presented within 3 months of the termination of employment.  After a brief adjournment which enabled her to take instructions the Respondent’s Counsel said the Respondent was not prepared to make any concession on the question of reasonable practicability.

7	So the Chairman says “I am sorry, we are not going to treat this as a Wages Act case” and the Inland Revenue say “we have not taken the point that we are going to argue on reasonable impracticability!”.

8	There was then a review and the Tribunal came to the view that it could not alter its original decision.  So we have now had two hearings which means that this case cannot be asserted in the Tribunal.  There it is a concurrent jurisdiction in the County Court.

9	We now have an appeal, with the help of Miss Romney from the ELAAS Scheme in which there is a Skeleton Argument which argues that there should in fact be an appeal and the gist of that appeal is that the Tribunal should have heard it as a Wages Act case and that they should have allowed an amendment to the Originating Application so as to replace breach of contract claim with a Wages claim.
10	We are bound to say that we do not accept the Tribunal acted in any way unfairly but we do think there was a rigidity of the approach that has permeated this case that has led to waste of money.

11	We think that the arguments we have heard are matters that enable this Tribunal to say that leave should be given on the general issue of whether there should have been an amendment to allow a Wages Act claim.  We hope that the Inland Revenue and the Applicant will consider the terms of this judgment and the Tribunal below.  We consider that the matter ought to be capable of resolution without going to a full hearing of this Tribunal.  We are not making any comment on the merits of the case.

12	Category C, half a day.  We hope that it will be possible for this matter to be compromised so that the case can proceed on the merits.