Appeal No. EAT/0204/03 ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 June 2003

Before
HIS HONOUR JUDGE J MCMULLEN QC
MR B V FITZGERALD
MR P M SMITH

MR T BANGERT	APPELLANT

SOUTH BANK UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR BANGERT
(the Appellant in Person)	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about the time limit for presenting claims of unfair dismissal and breach of contract where a fixed-term contract expires and the employee is unaware of the date of expiry.  The judgment represents the views of all three members.  We have carefully pre-read the papers in our original bundle and some of the papers today shown to us by the Applicant in bundle B.  We will continue to refer to the parties as Applicant and Respondent.

Introduction

2	It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at London (South), Chairman Mr M Zuke, registered with Extended Reasons on 17 December 2002.  The Applicant represented himself.  The Respondent was represented by Counsel.

3	The Applicant claimed unfair dismissal and breach of contract.  The Respondent contended the Applicant was dismissed by reason of the expiry of a fixed-term contract and, further, that the Applicant did not have continuous service of twelve months in order to make a claim.

4	At the outset we had to deal with a number of applications made by Mr Bangert.  He has had advice from Counsel, who conducted unsuccessful review proceedings on behalf of Mr Bangert against the Respondent.

5	Dealing first with the applications: we have granted the Applicant permission to amend his Notice of Appeal to add three further grounds to Counsel’s original four.  Grounds 6 (5) and 6 (6) seem to us to be matters which can be argued before us.  There appears to be no prejudice to the Respondent in dealing with both of those matters, since it is fair to say that they include both a matter of law (section 86 (4) of the Employment Rights Act 1996) and a matter relating to the essential issue in this case viz limitation.

6	As to ground 6 (7), we heard that the Applicant had not put, and was not allowed to put because of pressures of time, allegations which he now seeks to make against Professor Bridge.  In those circumstances it is not right for us to allow the matter to be opened for the first time on appeal.  The amended ground is dismissed.

7	Case management directions by the Tribunal in relation to the finding which we will come to on costs illuminate clearly the determination of the Tribunal to keep the proceedings within bounds.

8	An altogether new point arises in respect of the Applicant’s request to allow him to be heard on the costs order.  No Respondent’s submissions have been received on this matter by definition but we have allowed the Applicant in fairness to amend his Notice of Appeal orally to correspond to his submission in his Skeleton Argument which is to challenge the costs order.  Although no grounds were given in the Skeleton Argument, some had been advanced orally.

9	At the outset we dealt with the applications the Applicant had made and pointed out that his submission that we should give him three hours for the hearing did not comply with the Practice Direction (one hour for the whole hearing).  Bearing in mind the Practice Direction and the account in the Tribunal’s reasons of the Applicant’s approach to the conduct of the proceedings, we have ourselves exercised our duties of case management and yet the hearing will have lasted substantially more than two hours in order for the Applicant to make his case that there are reasonably arguable prospects of success for a full hearing.  As has been seen by our approach to his applications, we have granted the majority of them and so have informed ourselves of all of the relevant issues.

The Issue

10	The central issue in this case was defined by the Employment Tribunal as follows:

2	“In his Notice of Appearance received by the Tribunal on 7 January 2002, the Respondent asserted that the effective date of termination of the Applicant’s contract of employment was 16 May 2001.
3	In view of the dispute between the parties about the effective date of termination of the Applicant’s contract of employment, this was a Preliminary Hearing to decide whether a Tribunal has jurisdiction to consider the Applicant’s complaints having regard to the time limit for presentations of those complaints set out in section 11 of the Employment Rights Act 1996, and Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.”

11	It is important to bear in mind that was the essential scope of the proceedings on the first day of this hearing which, as we will see, was extended due to the unreasonable conduct of the Applicant, for a further day.

The Legislation

12	The relevant provisions of the legislation are the Employment Rights Act 1996, section 111 (1), which sets a deadline of three months in which to present an Originating Application; but that if it were not reasonably practicable so to present it then it should be presented within such reasonable time thereafter as the Tribunal sees reasonable.  We will refer to these as the primary and secondary limitation periods.  A similar regime applies for breach of contract claims under the 1994 Order.

13	Sections 95 (1) (b) and (c) deal with dismissal in respect of fixed-term contracts:

95	(1)	“For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if) –
		…
(b)	he is employed under a contract for a fixed term and that term expires without being renewed under the same contract, or
(c)	the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”

14	Section 86 (4) deals with certain fixed-term contracts and provides as follows:

86	(4)	“Any contract of employment of a person who has been continuously employed for three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, subsections (1) and (2) apply to the contract.”

The reference to the subsections means that when section 86 (4) becomes operative, rights to notice of termination (broadly speaking one week for each year of service) become operative too.

The Employment Tribunal Decision

15	The Tribunal decided that it had no jurisdiction to hear the Applicant’s complaints because the Originating Application was presented outside the primary period and beyond what would be a reasonable secondary period.  It further ordered the Applicant to pay the Respondent £600 in costs.

Directions

16	Directions in this appeal were given in chambers by Judge Ansell.  The Respondent was given the opportunity to make written submissions for the purposes of the Preliminary Hearing which it has done.

The Findings

(1) The time point

17	The essential facts are found by the Employment Tribunal as follows:

5	“In September 1999 the Applicant commenced his studies at the Respondent University (“the University”) as a PhD student in the School of Electrical and Electronic Engineering (“the School”).  It was his case that the university entered into a contract to provide him with paid employment throughout his course of study as a PhD student.  The Applicant conceded that there were no documents recording such an agreement.  It was his case that the agreement was entered into between himself and Dr Pervez of the university.  It was Professor Bridge’s case that no such contract existed.  While he agreed that PhD students often undertake some paid work for the university, the university never enters into a contract to provide them with work throughout their period of study.  It was Professor Bridge’s evidence that Dr Pervez has not entered into such and agreement and in any event would not have the authority to enter into such an agreement, as he reported to Professor Bridge who made decisions about offering employment to PhD students in his School.

6	The Tribunal preferred Professor Bridge’s evidence.  We did not find it credible that the university would enter into a contract of the type contended for by the Applicant unless such a contract was recorded in writing.  We were not persuaded by the Applicant that he had entered into such a contract orally with Dr Pervez.  We preferred Professor Bridge’s evidence that it was not credible that Dr Pervez would have purported to enter into such contract with the Applicant.
7	The university employs hourly paid lecturers where a permanent member of staff is not able to teach during the period in question.  Hourly paid lecturers are employed for fixed periods during the university’s two terms, which comprise 13 teaching weeks.  The Applicant was employed as an hourly paid lecturer in the School from 8 February 2000 until 12 May 2000.  The written terms and conditions of that employment stated that it was a temporary fixed term appointment from 8 February 2000 until 12 May 2000.  The commencement date of the contract was later amended so that it began on 4 February 2000.
8	The Applicant was employed as an hourly paid lecturer from 25 September 2000 to 18 December 2000.  He was further employed as an hourly paid lecturer from 8 January 2001 until 16 May 2001.  He agreed that 16 May was the last date on which he carried out any lecturing duties.”

18	The Tribunal noted a number of difficulties about the paperwork in this case.  It concluded that the Applicant had been dismissed at the end of a fixed-term contract expiring on 16 May 2001.  It decided that section 86 (4) did not apply because the contract was from 8 January to 16 May 2001.

19	It decided therefore that the Applicant’s limitation period began to run in May 2001 and would have expired on 15 August 2001 at the latest.  Nevertheless, it made allowances for any doubts there might have been in the Applicant’s mind about knowing that he had ceased to be employed on 16 May and was prepared to give the Applicant the benefit of the doubt on that issue.  However, further correspondence came to light indicating that by 27 July and certainly by 5 September 2001 the Applicant could have been in no doubt that his employment had ceased on 16 May.

20	The Tribunal noted that the Applicant is a highly-educated, intelligent person.  He did not suggest there was any impediment to his presenting his complaints to a Tribunal.  It was reasonable for the Applicant to have presented his complaints by the end of September 2001; as it put it, three weeks after he had acquired both of the necessary elements of knowledge about the termination of his employment.  That period would have enabled the Applicant to take advice if he had wished to do so and to present an Originating Application.  It was presented on 3 December 2001, almost three months after he had acquired the necessary knowledge.  The Tribunal depicted that as a wholly unreasonable delay.

(2) Costs

21	It then turned to the question of costs which had been raised on behalf of the Respondent and set out its reasons for describing the Applicant’s conduct of the proceedings as unreasonable.  In short, numerous case management directions were given by the Chairman as to the conduct of the Applicant’s cross-examination of the leading actor of the Respondent, Professor Bridge, bearing in mind both the overriding objective in Regulation 10 of the 2001 Regulations and the nature of the enquiry at the Preliminary Hearing; that is, jurisdiction.  It appears that the hearing had been prolonged to a further day. The Respondent sought costs of £1,250 but was awarded £600.

The Legal Principles

22	The principles of the jurisdiction of an Employment Tribunal to decide upon limitation issues are clearly set out in the judgment of the Court of Appeal in Walls Meat Co Ltd v Khan [1979] ICR 52, at page 60, per Brandon LJ.  It is from his judgment that the Tribunal obviously extracted the use of the word ‘impediment’, which it applied to the Applicant’s case.
23	Brandon LJ also deals with reasonable ignorance of facts (see page 61) and the approach of a Tribunal where such occurs.  It is that the primary limitation period runs but the Applicant is given the opportunity of satisfying the Tribunal that he or she comes within its jurisdiction by virtue of the secondary limitation period.

24	As to the principles of fixed-term contracts, the law which we have set out relating to the termination of contracts of a fixed-term is clear and has not been challenged before us; nor has the effective date of termination.  Section 86 (4) gives a person who would otherwise be excluded (by virtue of a series of fixed-term contracts) from rights to notice, the opportunity to claim a relevant notice period where he or she in fact worked beyond a fixed-term of four weeks.

Our Conclusions

25	In our judgment the Applicant’s claims that the Tribunal erred fail.  It is plain that the Tribunal’s correctly narrow remit on the Preliminary Hearing was to consider whether or not it had jurisdiction.  It has demonstrated in its findings that the Applicant was subject most recently to a fixed-term contract broadly corresponding to university sessions expiring on 16 May.  That was the date on which he last did in fact do any work for the Respondent and thus time began to run.

26	We detect no error of law in the Tribunal’s depiction of the primary limitation period as starting on that date and its analysis of the relevant contractual relationships.  The Tribunal cannot be faulted in its preference of the evidence of the Respondent over the Applicant in the absence of documentation, which the Applicant conceded did not exist, establishing his primary claim for a continuous period of employment since September 1999.  In any event, the Tribunal’s findings as to the termination of the relationship on 16 May 2001 are amply explained in its reasons.  Thus it was correct to start the time limitation period then.

27	The Tribunal gave the Applicant the benefit of assuming that it was not reasonably practicable to present a complaint until 5 September. The Applicant contends that as a matter of law he should then have been given a three month period.  That we regard as wholly unarguable.  The secondary limitation period had already begun and the Applicant was subject to the requirement that he take steps within a reasonable to submit an Originating Application.  The statute does not reopen the three-month primary limitation period.

28	The material which he has put in front of us and which he says was before the Employment Tribunal indicates “impediments” for the Tribunal to weigh.  The Tribunal has dismissed his claim that there were such impediments and having heard of them today we see no error in the Tribunal’s approach to that question.

29	Thus the Tribunal cannot be faulted for allowing the Applicant from 5 to 30 September as a reasonable period in which to put in his Originating Application and we see no legal basis upon which it could be argued that there is, in his case as a matter of law, an automatic three month period corresponding to the primary period of limitation.

30	We then turn to costs.  No grounds have been put before us to substantiate the Notice of Appeal now amended to set aside the order for costs.  Costs are of course a matter of discretion.  It is unusual for a Tribunal to exercise its power to award costs on the basis of its criticism of the conduct of a litigant.  The Tribunal in has cogently set forth its reasoning as to why it acceded to the Respondent’s claim - in part, it must be recalled, for costs of the last day.  No error of law appears from its reasoning or from the findings of fact relating to the costs issue. 
31	The appeal is dismissed.