Appeal No. EAT/335/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30th November 1993

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR A FERRY MBE

	MISS A MACKIE OBE

DOUBTFIRE ENGINEERING CO LTD	APPELLANTS

MR ROLAND KNOX	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J HANBURY
(Of Counsel)
Messrs Rowlands
35 Fountain Street
Manchester
M2 2AF

For the Respondent	MR M DAY
(Lay Representative)

	MR JUSTICE TUCKER:  This is an employer's appeal from a decision of the Industrial Tribunal sitting at Leeds on the 26th February 1993.  It was a majority decision made on a preliminary point of jurisdiction, the majority comprising of the two lay members who disagreed with the Chairman, as they were perfectly entitled to do and for which there is express provision in the Rules.  

	The question which the Industrial Tribunal had to consider was whether they had jurisdiction to entertain an application to amend the Originating Application, IT1, more than 13 months after it was served so as to substitute a wholly new claim.

	The Respondent had been employed by the Appellants as a production foreman for a period of about 7 years between the years 1984 and 1991.  His employment terminated on the 1st November 1991.

	His Originating Application, dated 18th December 1991, was received by the Tribunal on the 30th December 1991.  The complaint which he wanted the Tribunal to decide was described as:
		"Deduction of wages contrary to the Wages Act 1986."

The details of the complaint were that the Appellants had failed to pay the Respondent for overtime work and that this should be treated as a deduction from his wages in the terms of the Wages Act 1986.  A deficiency which the Tribunal were asked to make good.

	That was a claim to which the Appellants responded and in answer to which they put in detailed grounds on which they intended to rely on resisting it.  It was a claim made under the Wages Act 1986 and there was at that stage no application under the provisions of the Employment Protection (Consolidation) Act 1978.

	The Application came before an Industrial Tribunal on the 27th March 1992.  There is a query whether before that date, sometime in February or March, the Respondents then representative, a Mr Sanderson, had written a letter to the Industrial Tribunal notifying them of his intention to seek to amend the IT1 so as to rely on the 1978 Act.  Be that as it may the parties attended with their witnesses.  The Chairman pointed out that since the contract of employment was oral it was first necessary for the Tribunal to find that there was a provision for payment of overtime in the contract of employment.  He rightly observed that an application should have been made under the provisions of Section 11 of the Employment Protection (Consolidation) Act 1978 to determine what particulars ought to have been included or referred to in a statement of employment particulars.  The difficulty about that was that by Section 11(9) it was at that time provided that an industrial tribunal shall not entertain a reference under this Section in a case such as the present where the employment has ceased unless an application was made before the end of the period of 3 months from the date that the employment ceased.  That date would, in the present case be, the 1st February 1992.  A qualification has since been added by amendment whereby an application may be made within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of the period of three months.  This has the effect of bringing the Section into line with, for example, Section 5(2) of the Wages Act.  But that amendment had not been made or taken effect at the time we are considering and therefore the provisions of Section 11(9) were both mandatory and unqualified.  

	However, the Chairman of the Tribunal did not deal with the matter at the hearing on the 27th March 1992.  He invited the parties to make submissions on the point at a hearing for directions and both sides agreed to this procedure. 

	 The directions hearing took place on the 5th May 1992.  What then occurred is recorded in the letter of the 11th May written by the Assistant Secretary to the Tribunals to the parties, which records:
		"An application was made under the Wages Act 1986 within that time limit but not under section 11 of the 1978 Act and there is no provision for extending the time.  Accordingly the tribunal does not have jurisdiction to hear an application under section 11 of the Employment Protection (Consolidation) Act 1978.

		In order to save the parties having to attend for a formal decision dismissing the application for want of jurisdiction it is suggested that the applicant forward a withdrawal in writing."

We have already referred to the question whether the Respondents then representative,  Mr Sanderson, had written to the Tribunal seeking to amend the Originating Application so as to rely on the provisions of the 1978 Act.  There is doubt about the existence of any such letter.  The Appellants do not accept that it was written, they have never seen the original nor been shown any copy.  Mr Hanbury, for the Appellants, was present at the two earlier hearings of the Tribunal and tells us that there was no mention of such a letter.  There was no reference to it in the Tribunal's letter of 11th May, to which reference has been made already, and there is no finding by the Industrial Tribunal about this to assist us.  It may be that such a letter was written but we are certain that it was not written before the 1st February 1992 and are sure therefore that it cannot have been written within the three month period limited for the bringing of a claim under the 1978 Act.

	After the hearing on the 5th May 1992, as has been said, the Tribunal invited the Applicant to withdraw his application.  That is the stage at which the Respondent's present representative, Mr Day, took over responsibility for his case.  Instead of withdrawing, as the Appellants contend had been agreed, Mr Day sought a review of the Tribunal's decision.  That is how it came about, that there was a further hearing on the 26th February 1993, from which this appeal is brought.

	The case for the Appellants is that:
		"Section 11(9) [of the 1978 Act] places a strict time limit on the bringing of any application under that section and there is no provision for the extension of time.  In so far as there is any such discretion it can only be exercised in exceptional circumstances where there has been fraud or unconscionable behaviour by the Respondent leading to real injustice (see Grimes v. Sutton LBC [1973] ICR 240).  This provision contrasts with the provisions of section 67 of the 1978 Act which permits an Applicant in an unfair dismissal claim to bring such a claim out of time where it was not reasonably practicable to bring a claim within time."

As to the amendment to the IT1 the Appellants submit:
		"The majority of the Tribunal took the view that the defect could be cured by permitting an amendment to the IT1.  They took the view that the overriding consideration was one of justice and that wherever possible the technicalities of civil litigation should not stand in the way of this approach.  I [the Applicants] will therefore turn to consider the approach that should be taken to proposed amendments to the Originating Application."

and they deal with that in their skeleton argument as Mr Hanbury did in his submissions before us.

	The case for the Respondent is as follows, first Mr Day submits that there is a reference in the Originating Application itself to the 1978 Act and that this is constituted by the reference to Section 1 of the Act.  We regret to say that we do not agree with that.  It is an ingenious argument but it is, in our view, wrong.  The reference to the Act must be, and is clearly a reference to, the Wages Act 1986, which had already been expressly mentioned.

	Second, Mr Day recognised that the Originating Application had been clumsily drafted and advised that it should be clarified and if necessary, amended.  He instructed Mr Sanderson to do so and told him to include a reference to Section 11 in the letter which he wrote to the Tribunal.  As we have said we are not in a position to find that no such letter was written but we are quite sure it was not written in time.  In the absence of a timely letter and a formal application to amend, made within the three month period, were the majority of the Tribunal correct in assuming as they did, that they had power to allow amendments at any stage of the proceedings so as to infer upon themselves jurisdiction to hear the application?  They set out their reasons in paragraph 11 of the decision document in these terms:
		"The 2 lay members took a different view.  They took the view that although tribunals are not granted any express powers under the 1985 Rules to allow amendments, they are however given a general power to regulate their own procedure;  a power which is curtailed only by the express provisions of Rule 12.  Thus tribunals have a broad discretion to allow amendments at any stage of the proceedings."

The Rules which are there referred to are the "Industrial Tribunals (Rules of Procedure) Regulations 1985", Rule 12 is contained in the first schedule to those Regulations under the cross reference "Miscellaneous power of tribunal", subparagraph 1 provides:
		"(1) Subject to the provisions of these Rules, a tribunal may regulate its own procedure.

		(2) A tribunal may, if it thinks fit,

		(a)	extend the time appointed by or under these Rules for doing any act notwithstanding that the time appointed may have expired;"

and there are further provisions.

	Having given the matter careful consideration we conclude that the majority of the Industrial Tribunal erred in the view they took and that their Chairman was right.  The provisions of Section 11(9) are mandatory and clear.  They cannot be undermined by Rules which govern procedures of the Industrial Tribunal and which were made for the limited purposes set out under Rule 12.  They were Rules, as they were expressed to be made, to regulate the tribunal's own procedure and, for example, to extend the time appointed by or under the Rules for doing any act notwithstanding that the time appointed may have expired.  Rules for regulating procedure are one thing but the power to supersede, extend or ignore, express provisions of acts of Parliament are quite another.  These Rules do not, and could not, confer such power.

	Accordingly, we hold that the Industrial Tribunal were wrong in the decision which they reached.  That decision is quashed and the appeal is allowed accordingly.