Bird v SWM Distribution [1998] UKEAT 330_98_2407 (24 July 1998)

JUDGMENT PRELIMINARY HEARING - EX PARTE © Copyright 1998 APPEARANCES For the Appellant NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT MR JUSTICE KIRKWOOD : This is the preliminary hearing of an appeal by an employee, Mr Bird, from a decision of an Industrial Tribunal on 8th January 1998. By its decision the Industrial Tribunal held that Mr Bird's complaint of breach of contract was out of time so that the Industrial Tribunal had no jurisdiction to hear it. The extended reasons for the decision, which was a decision of a Chairman sitting alone, was sent to the parties on 13th January 1998. Mr Bird began to work for SWM Distribution Ltd in May 1996. It is not necessary for us to refer to the nature and terms of that employment because nothing turns on it. The Industrial Tribunal found that on 20th August 1997 there was discussion during which the decision was taken to terminate Mr Bird's employment. On 22nd August 1997 the employer wrote to Mr Bird stating that Mr Bird's employment had been terminated with effect from 20th August 1997. It also contained this sentence: "You have agreed not to act as our employee as from the end of yesterday (Thursday 21 August)" That reflected the fact that Mr Bird had visited a customer on 21st August. The letter was received by Mr Bird on 23rd August 1997. The Industrial Tribunal found that the effective date of termination was 23rd August 1997. That was a finding of fact which was within the remit of the Industrial Tribunal to make. Mr Bird contended, however, that the effective date of termination was 29th August 1997. He was paid to that date and in fact made a delivery for the company on 27th August 1997. Since Mr Bird had not been employed for two years no complaint of unfair dismissal lay to the Industrial Tribunal. The Industrial Tribunal thus had before it only a breach of contract case. The Industrial Tribunals Extension of Jurisdiction Order 1994 provides at Article 3: "Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if- (a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine; ... (c) the claim arises or is outstanding on the termination of the employee's employment." By Article 7 of the Order: "An industrial tribunal shall not entertain a complaint in respect of an employee's contact claim unless it is presented- (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or ... (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable." Thus, a claim had to be presented by 22nd November 1997 on the basis of the Industrial Tribunal's finding of effective date of termination; or, by 28th November on Mr Bird's case. Mrs Bird, as the Industrial Tribunal found, did a good deal of research and in the course of it became well aware of the three month time limit. She thought, wrongly, that the three month time limit from 29th August expired on 29th November 1997. On 28th November 1997 she posted Mr Bird's application to the Industrial Tribunal at Bristol by Recorded Delivery. That was a Friday. The Industrial Tribunal assumed, generously perhaps, that it arrived at the Industrial Tribunal on Saturday 29th November 1998. It was stamped as received by the tribunal on Monday, 1st December 1997. So whether the effective date of termination is taken as 23rd August 1997, as the Industrial Tribunal found, or as 29th August 1997, the application was just out of time. I return to Article 7(c) of the 1994 Order and I quote: "(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable." Before a discretion arises as to the extension of time, the Industrial Tribunal must therefore be satisfied that it was not reasonably practicable for the complaint to be presented within time: unless it is satisfied of that, no discretion arises. In the extended reasons for its decision the Industrial Tribunal, by its Chairman, said this: "9 There is no general discretion to extend the time. I can only do so if I am satisfied that it was not reasonably practicable for the application to have been presented within the 3 month period. As I have said, Mrs Bird carried out a considerable amount of research and was fully aware of the 3 month period. Unfortunately, she simply made a mistake. That does not mean that it was not reasonably practicable for her to present the claim in time. The wording of the section dealing with the time limit is quite clear and the 3 months commences on the effective date of termination. 10 On those facts I cannot find that it was not reasonably practicable and so I have to dismiss the application." Mr Bird, through Mrs Bird who has represented him, requested a review of the decision. That request was refused and the reason for refusal were given on 27th January 1998. Mr Bird, or rather Mrs Bird on his behalf, has made a very wide ranging series of complaints about almost every aspect of the Industrial Tribunal hearing, the Chairman, the staff and the premises. The Notice of Appeal before us addresses three matters. First that the extended reasons given for the Industrial Tribunal's decision are not full extended reasons in that vital points are missed. The relevance or otherwise of evidence to the point in issue is a matter for the Industrial Tribunal. The ambit of the Industrial Tribunal's enquiry was a very limited one in the way I have indicated. It is not incumbent on an Industrial Tribunal in its extended reasons to rehearse all the matters put before it. Its essential task is to give the reasons upon which it reached the decision that it did. This Industrial Tribunal has done so. A subsidiary point is that the extended reasons contain a reference to "29 December" when the plain sense is that it should read "29 November". That is so obviously a typographical slip that no point on appeal could possible arise from it. The second matter raised in the Notice of Appeal is what is said to be a procedural error and I quote: "Invasion of privacy, not informed of tape recording." The Chairman dealt with that point in his reasons dated 27th January 1998 for refusing a review. He said: "The equipment referred to was a tape-recorder used for recording the decision which has now been sent out." My industrial colleagues sitting with me with their experience of Industrial Tribunals, are satisfied that it is a very common practice for the Industrial Tribunal's decision to be recorded on a tape-recorder and in no conceivable way is it improper. The third ground of appeal is that a fax received by the Industrial Tribunal from the respondent's solicitors was handed to Mr and Mrs Bird some five minutes before the hearing and they had no chance to digest it nor to reflect upon it. Nowhere in the papers before us does Mr Bird or Mrs Bird refer to any supposed relevance of that fax; nor, in their absence today, have we been able to follow that up with them. The Chairman, however, dealt with this point, too, in his reasons for refusing a review. He said: "The information from the respondents' solicitors had no significant bearing on the matters which I had to decide." That is the best information we have about that fax, and there is nothing in the Notice of Appeal or documents we have seen to indicate that it had a bearing on the decision on the limited issues that were before the Industrial Tribunal. The appellant was notified of this hearing date over two months ago. On 20th May 1998 Mr Bird signed and he or his wife sent in a form to the Employment Appal Tribunal which said: "I do not intend to be present at the hearing due to prior engagement on date given." I stress that that was over two months ago. No request for postponement was made. At the foot of the document it is said by Mrs Bird: "Unfortunately two issues now involved. The original case is stated above and procedural ones against Bristol Chairman B E Walton. Please inform whether both cases/issues can be considered on 24th July 1998 or if not which. If only the initial could it please be reheard in Bristol to save travel and expense. An explanation for unpleasant personal comments by Bristol tribunal staff especially against myself, Caroline M Bird, will be requested later." In response to that the tribunal wrote to Mrs Bird: "I acknowledge your letter indicating that you do not intend to be present at the Preliminary Hearing on 24th July 1998. Your appeals against the decision of the Industrial Tribunal and the allegations of procedural irregularities by the Chairman, Mr B E Walton, contained in the Notice of Appeal, will be considered at the Preliminary Hearing. May I draw your attention to my letter dated 26th February which explains briefly the function of a Preliminary Hearing. Your request for the matter to be reheard at Bristol will be considered at the Full Hearing if the appeal is allowed to proceed at the Preliminary Hearing." We are left in no doubt that Mr and Mrs Bird were aware of today's hearing, and were aware of it over two months ago and neither of them are present. On 20th July 1998 the Employment Appeal Tribunal received at fax message from Mr and Mrs Bird which addresses a number of points that are not before us because they are not matters arising on the Notice of Appeal, but it does contain these two passages: "Unprofessional no names were available to us nor the fax from SWM (Bristol had received the day before) until 10 minutes before hearing. All personal facts about us ignored, unethical and unprofessional. Likewise, misquotes. . .. The invasion of our privacy, use of taperecorder without consent ..." We have that fax before us and we have considered it. Mrs Bird has undoubtedly become vexed by this case, but it is necessary for her to understand that the task of the Employment Appeal Tribunal on a preliminary hearing is to decide whether there is an arguable point of law raised by the appeal; if there is, then the appeal goes to a full hearing for the point to be argued; if there is not, the appeal proceeds no further. The reason for that is that an appeal to the Employment Appeal Tribunal from an Industrial Tribunal lies on a point of law alone. No such point has been identified in the Notice of Appeal. The decision of the Chairman cannot be impeached on the basis of any error of law. In those circumstances, it is our duty to dismiss this appeal at this preliminary stage. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII