Appeal No. UKEAT/0019/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 February 2009

Before
THE HONOURABLE MR JUSTICE WILKIE
(SITTING ALONE)

MR I T FARR	APPELLANT

RYEFELL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	No appearance or representation by or on behalf of the Appellant.	
For the Respondent	MR I WHEATON
(of Counsel)
Instructed by: 
Messrs Blanchards Bailey LLP
Solicitors
Bunbury House
Stour Park
Blandford Forum
Dorset  DT11 9LQ

SUMMARY
JURISDICTIONAL POINTS
The timeliness of a claim is logically prior to the ability to make a claim by reason of length of service.  Thus it should be determined first and separately.

THE HONOURABLE MR JUSTICE WILKIE

1.	By a Notice of Appeal dated 19 September 2008, received by the Employment Appeal Tribunal on 24 September 2008, Mr Farr sought to appeal against a judgment of Employment Judge Peters sitting at Southampton which dismissed his complaints of unfair dismissal, unauthorised deduction from wages, non-payment of holiday pay in breach of the Working Time Regulations 1998 and breach of contract on the grounds that each of those four complaints was not presented in time despite it being reasonably practicable to do so.

2.	The grounds of appeal were to the effect that it was said that Employment Judge Peters erred in law in failing to have regard to the fact that the normal time limit of three months would, in the circumstances, Mr Farr alleged, be automatically extended for a further three months so that his ET1 was indeed in time.

3.	In his Notice of Appeal he referred expressly to the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 15(1).  The matter first came before the President of the Employment Appeal Tribunal on 20 January of this year under the paper sift procedure.  The appeal was ordered to be set down for a full hearing and fairly shortly afterwards, the matter having been ordered to be expedited, was listed for hearing today, 19 February.

4.	By a letter, on the face of it dated 4 January but it would appear mistakenly so, received by the Employment Appeal Tribunal on 6 February, the Appellant asked for the hearing to be adjourned on the basis that a person whom he expected to represent him had withdrawn and as yet he was uncertain whether or not he would be represented or would have to present the matter himself.

5.	That application was referred to the Deputy Registrar, who directed that it remain in the list for hearing today because the matter had been recommended for expedition by the President.  Mr Farr was informed that he could, if he wished, renew his submissions to adjourn the hearing of the appeal by way of preliminary point at the hearing.  He was informed of this by letter dated 10 February.

6.	Mr Farr has not attended this hearing and there has apparently been no contact between him and the Employment Appeal Tribunal since that exchange.  The Respondent to the appeal, Ryefell Ltd, has attended through Counsel, Mr Wheaton, who has urged that I hear the appeal.  He points out that in the past Mr Farr has failed to attend the hearing of 13 August, the subject of the appeal, albeit he claimed to have sought an adjournment of that in connection with some medical problem which required him to be admitted to hospital on the day following that hearing.  It is also to be observed that Mr Farr applied to the Employment Tribunal for written reasons for the Decision but did so considerably out of time and accordingly was refused full reasons.

7.	In my judgment, it is appropriate for this appeal to proceed and I have heard it without the benefit of oral submissions from Mr Farr but with the benefit of the documentation to which he has contributed.  

8.	The proceedings were launched by Mr Farr by an ET1 dated 14 May which was received by the Employment Tribunal on 15 May.  In it he made four claims which were the subject of the order of 13 August and, in addition, he claimed a redundancy payment.  Under part 3 of the ET1, action before making a claim, he confirmed that he had been an employee of the Respondent, that his claim was about a dismissal by the Respondent and about other things and that he had put his complaints in writing to the Respondent.  He was asked to give the date he put it to them in writing and he said, “14 February 2008”.

9.	In relation to unfair dismissal, he recorded the fact that the employer would not reply to his grievance letter and referred to a copy which was annexed to the ET1.  That is a reference to a letter dated 14 February 2008 referring, in the first sentence to the (Dispute Resolution) Regulations 2004, with reference to the letter of dismissal of 20 November and saying this:
“I wish to appeal against my dismissal.  I do not believe that my dismissal was justified or carried out in accordance with legal procedures.  
Furthermore, I would like to raise grievances with regard to the following:-”

10.	He then set out the substance of his grievance in respect of payment in lieu of notice, the quantum of the redundancy payment, holiday pay and another deduction.

11.	The Respondent in their ET3, in part 2 agreed that the Claimant had been an employee, that the claim was in part about a dismissal and that the substance of this claim had been raised by the Claimant in writing under a grievance procedure.  They then said this in response to the question of what stage the grievance procedure had reached:
“No stage reached as grievance letter received whilst person dealing with it was away and not dealt with afterwards due to length of time since dismissal.”

12.	They asserted that his employment had started on 25 June 2007.  This was a factual issue between them and the Appellant who had stated in his application that his employment began on 14 September 2004.  They also said that his employment ended on 20 November 2007, which accords with the fact that the dismissal letter was said to have been dated 20 November 2007.

13.	The Tribunal, of its own volition, listed the matter for a pre-hearing review to take place on 13 August.  It set out an agenda.  The first item of the agenda was to determine a number of specific preliminary issues.  Those were whether the Tribunal had jurisdiction to consider, respectively, the complaints of unfair dismissal, the unauthorised deduction from wages, breach of contract and breach of the Working Time Regulations.  In each case, the agenda identified the relevant period of time as three months from the effective date of termination.  

14.	As I have already indicated, Mr Farr did not attend the hearing on 13 August.  The Respondent did, represented by Mr Wheaton, and he agreed that the Tribunal appears to have approached the question of their jurisdiction having regard to the time limit on the footing that the relevant time limit was three months and did not apply its mind to the impact of the letter of 14 February 2008 and regulation 15 of the 2004 regulations.

15.	Mr Wheaton agrees that if the letter of appeal/grievance was delivered either on or in the normal course of post, having been posted on 14 February, then it would have been received within the normal time limit of three months.  Were that the case, then the combined effect of section 32 of the Employment Act 2002 and regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 would be that the time limit for a complaint to be made in respect of these four types of complaint would be extended by a further three months.  That is to say, the normal time limit which would have expired on 19 February 2008 would, in fact, extend to 19 May 2008.

16.	On that basis, the ET1, having been filed with the Tribunal on 15 May, would be in time and therefore the conclusion of the Employment Judge that the complaints had been made out of time would be wrong in law.  

17.	Mr Wheaton, notwithstanding the prima facie position that on the face of the documents these claims were made in time and the Employment Judge did err in law, puts forward two arguments.  The first is that the provisions relating to the application of dismissal and disciplinary procedures and, by implication, the application in relation to grievance procedures only operate where a person already has sufficient continuity of service to be protected from being unfairly dismissed or having other actions taken against him the subject of complaint.  In other words, he says that the operation of regulation 15 cannot operate to save a complaint which the employee has no right to make because he has no right not to be treated that way by reason of lack of continuity of employment.  

18.	He acknowledges that he sought to raise this argument or, at any rate, the issue of the continuity of service before the Employment Judge but the Employment Judge said that he considered the question of whether the Tribunal had jurisdiction because of the time limit to be separate from, and logically prior to, the question whether, if it were considering the complaint, the complaint was one which could succeed because it was a complaint in respect of a right which the employee had or, on the contrary, was a complaint of breach of a right which the employee did not have because of lack of continuity of service.

19.	In my judgment, the Employment Judge was right to approach the matter on the basis that the regulations are directed to the question of time limits rather than continuity of service and that it is a free-standing issue which has to be determined by the Tribunal before it can assume jurisdiction at which point, of course, the question of whether the employee has the right to make the complaint by reason of continuity of service then comes into play.

20.	Therefore, I reject Mr Wheaton’s conceptual argument as unsustainable.  Therefore, in my judgment the Tribunal, by approaching the question of the time limit, apparently without consideration of the operation of regulation 15, did err in law and, therefore, its Decision cannot stand and must be overturned.

21.	Mr Wheaton’s second argument, however, is not a conceptual argument but a practical one and that is this.  The extension of time from three to six months provided for by regulation 15 is posited on the fact that Mr Farr raised the grievance, or sought to appeal under a disciplinary or dismissal procedure by doing so, within the normal time limit.  That is to say, within three months after the effective date of termination, 20 November.

22.	While there is some evidence that he may have done so in the sense that the letter of complaint both by way of appeal and raising grievance was dated 14 February, within the three month’s time limit, there is no real evidence one way or another when that was posted and, therefore, when it was received other than the fact that the Respondent’s case was that there was nobody there to receive it until the person dealing with it returned from holiday on 28 February.  Therefore, he says, the letter could have been received or could have been posted and have been deemed to have been received in the normal course of post either within the three months or outside it.  Mr Farr did not turn up at the Tribunal and, therefore, the Tribunal did not have the opportunity to ask him about this and, therefore, it is not possible to say whether he is in a position to take advantage of regulation 15 or not.

23.	I can see some merit in that argument but it does not, in my judgment, take me so far as to be able to rule that in any event Mr Farr’s complaint was subject to the three month time limit because that would necessarily involve a positive decision that the letter of complaint was not sent or deemed to have been received within the three month normal time limit.  It is plain that the Tribunal simply did not apply its mind at all to that issue.

24.	Therefore, the order that I will make is that the Decision of Employment Judge Peters is quashed but the matter will be remitted to the same Employment Judge for him to, if need be, hear evidence, to hear argument and to decide whether, upon the proper application of regulation 15 to the facts as found by him, Mr Farr’s ET1, on these four issues, was filed in time and, at the same preliminary hearing, for the Employment Judge to hear evidence and argument about the separate point of the continuity of employment of Mr Farr and, therefore, the jurisdiction of the Tribunal to hear his complaints in respect of the four matters which the Employment Judge wrongly dismissed on 13 August and the claim for redundancy payment.  That will necessarily involve evidence about the course of his employment and whether it began and continued from 2004 or whether, as the Respondent asserts, that there was a break in continuity such that his relevant period of service did not begin until 25 June 2007.

25.	Mr Farr should be warned that his habit of launching proceedings in written form and then failing to turn up at the hearings, while it does not prevent the hearings taking place does not assist his cause because it does mean he is not present to help the Tribunal with matters where he may have relevant evidence to give and where, in the absence of his evidence, matters may be decided against him.  Of course, it is entirely a matter for him whether he chooses to attend but he should be warned that he does not necessarily do himself any favours by continually failing to turn up to scheduled hearings.

26.	I am not sure whether there is anything else that I need say or any further order that I need make.

27.	I will order a transcript of the judgment.