Appeal No. EAT/107/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th February 1995
                                           	Judgment delivered 25 April 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

	MR K M HACK JP

	MR P M SMITH

MR P CRAWFORD	APPELLANT

(1) SECRETARY OF STATE FOR EMPLOYMENT	RESPONDENTS
(2) COLMORE DEPOT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR W A HARRIS
(of Counsel)
Chitsiga & Co
Solicitors
237 Dudley Road
Winson Green
BIRMINGHAM B18 4EJ

For the Respondents	MR T BRENNAN
(of Counsel)
Treasury Solicitor
Queen Anne's Chambers
28 Broadway
LONDON SW1H 9JS

MR JUSTICE MUMMERY (PRESIDENT)                  Mr Harris, counsel for the Appellant, described this as "a tragic case".  That is an exaggerated claim.  We do, however, regard it as an unfortunate case.

	Mr Crawford is one of a number of employees who failed, in the Industrial Tribunal held at Birmingham on 18th November 1992, to establish claims against the Secretary of State for Employment for redundancy payments.  In Full Reasons notified to the parties on 13th January 1993 the Tribunal dismissed their applications.  By Notice of Appeal served on 8th February 1993, subsequently amended by leave of this Tribunal, Mr Crawford appeals.

The Facts
	Mr Crawford was employed by a large motor trader, Colmore Depot, which went into receivership on 21st December 1990.  It was insolvent.  The business of Colmore Depot was continued by the Receivers with a view to selling it as a going concern.  Mr Crawford and his fellow employees continued in employment in the business.   At the end of February 1991 they were informed that there would be continuous employment and no redundancies.  On 6th March 1991 Swithland Motors Ltd, which later went into liquidation, took over the business of Colmore Depot.  Mr Crawford continued to work and assumed that his employment was continuous.  No notice had been received from Colmore Depot terminating his employment.  He did not make any claim for redundancy payments.

	Some of the employees (not Mr Crawford) took action in the Industrial Tribunal against Colmore Depot, Swithland Motors and the Secretary of State, claiming unfair dismissal and redundancy payments.  Those claims were heard by a different Industrial Tribunal held at Birmingham.  The claims were rejected on the grounds that there had not been a relevant transfer from Colmore Depot to Swithland Motors within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981.  The Tribunal announced its decision on 19th March 1992 and notified the parties of the Full Reasons for their decision on 8th April 1992.  The Tribunal held that there was a transfer of assets but no relevant transfer of an undertaking.  In paragraph 12 of the Full Reasons the Tribunal said:

		"... Our understanding is that this means that the Secretary of State accepts liability for any redundancy payments due to [named Applicants] (some of which we understand have in fact already been paid) and any other claims which fall to be paid by the Secretary of State by virtue of Sections 122 and 123 of the Employment Protection (Consolidation) Act 1978 being employers payments which Colmore are unable to meet.  Because Mr Britten, who appeared briefly for the Secretary of State at the outset of these proceedings, has not formally conceded this point we make no formal order, but both parties have liberty to apply should there be any difficulty over the making of insolvency payments by the Secretary of State."
We have been informed that the Applicants in those proceedings have been paid their redundancy payments.

	When the decision of that Tribunal became known Mr Crawford appreciated that he did not have continuity of employment with Swithland Motors, because there was no relevant transfer of an undertaking.  He therefore claimed that he was entitled to a redundancy payment from the Secretary of State.  An Originating Application was presented by him on 24th July 1992 and by fellow employees at about the same time on the basis, not now disputed, that their employment with Colmore Depot ended on 5th March 1991.

	The Secretary of State disputed liability on the basis that the Applicants 
		"...have not complied with the provisions of S.101(1) or S.101(2) of the [1978 Act] and that therefore their applications are time barred."
The Industrial Tribunal accepted that contention and decided that there was no power to make an award in favour of Mr Crawford.

The Statutory Provisions
	Section 101 provides -
		"(1)  Notwithstanding anything in the preceding provisions of this Part, an employee shall not be entitled to redundancy payment unless, before the end of the period of 6 months beginning with the relevant date -

			(a)  the payment has been agreed and paid, or

			(b)  the employee has made a claim for the payment by notice in writing given to the employer, or

			(c)  a question to the right of the employee to the payment, or as to the amount of the payment, has been referred to an industrial tribunal, or

			(d)  a complaint relating to his dismissal has been presented by the employee under S.67.

		 (2)  An employee shall not by virtue of subsection (1) lose his right to a redundancy payment if, during the period of 6 months immediately following the period mentioned in that subsection, the employee -

			(a)  makes such a claim as is referred to in paragraph (b) of that subsection,
			
			(b)  refers to a tribunal such a question as is referred to in paragraph (c) of that subsection, or
			(c)  makes such a complaint as is referred to in paragraph (d) of that subsection

		and it appears to the Tribunal to be just and equitable that the employee should receive a redundancy payment having regard to the reason shown by the employee for his failure to take any such step as is referred to in paragraph (a), (b) or (c) of this subsection within the period mentioned in subsection (1) and to all the other relevant circumstances."

	It was accepted before the Industrial Tribunal that the relevant date was 5th March 1991, being the date when termination of employment took effect, and that Mr Crawford had taken none of the relevant steps during the period specified in S.101.  No steps were taken because, as the Tribunal held in paragraph 5 of the full reasons, 
		"The applicants were led to believe that they had continuity of employment and were not entitled to a redundancy payment.  Indeed, we understand that this was the view of the [Secretary of State] at that time on the basis that there had been a relevant transfer between [Colmore Depot] and Swithland Motors Ltd."  

	Section 106 of the 1978 Act provides -
		"(1)  Where an employee claims that his employer is liable to pay him an employer's payment, and either -

			(a)  [not material] or

			(b)  that the employer is insolvent and that the whole or part of the payment remains unpaid,

		 the employee may apply to the Secretary of State for a payment under this section."

"Employer's payment", in relation to an employee, is defined to include "a redundancy payment which his employer is liable to pay him under the foregoing provisions of this Part." Section 106(1A)(a))

Submissions of Mr Crawford
	It was submitted by Mr Harris, on behalf of Mr Crawford, that the real questions were: What is the spirit and intention of the legislation?  What was the intention of the parties when they entered into negotiations relating to the question of employment?  The conclusion that the application was time-barred under S.101 was contrary to the spirit and intention of the legislation and the intention of the parties.  In particular, he argued that -

	(1)  The intention of the parties was to have continuity of employment.

	(2)  The parties (including the Secretary of State) assumed that there was a transfer of an undertaking from Colmore Depot to Swithland Motors.  On the basis of that assumption Mr Crawford and his fellow employees took no action to pursue claims for redundancy payments.

	(3)  The position did not become clear to the parties until the ruling of the Industrial Tribunal that there was no relevant transfer.  That ruling was announced on 19th March 1992 and Full Reasons for the decision were notified on 8th April 1992.  Until then the intention and belief of the parties remained unchanged.

	(4)  Time only began to run against Mr Crawford at the date when he became aware that the legal position was different from what all the parties believed it to be.  That was the relevant date.  If S.101 was applied to that date, he was not out of time.

	(5)  The Secretary of State is estopped from contending that the claim is out of time, as he informed Mr Crawford that his employment was continuous on the basis that there was no relevant transfer from Colmore Depot to Swithland Motors.  Mr Crawford acted to his detriment when he did not apply for redundancy payment until after the Industrial Tribunal's decision over 13 months after the take-over date.

	(6)  Alternatively, the Secretary of State, Colmore Depot and Swithland Motors jointly and separately entered into contractual relations with Mr Crawford when they informed him that his employment was continuous.  Though Mr Harris did not spell this out, presumably the consequence of such a contract is that the Secretary of State is bound not to dispute Mr Crawford's entitlement to a redundancy payment.

Conclusions
	We all sympathise with Mr Crawford's predicament, but we are unable to accept that the submission made on his behalf discloses an error of law in the decision of the Industrial Tribunal.  In our view, the Tribunal's decision is correct and the legal position is as follows:-
	(1)  The relevant date for the purposes of S.101 was 5th March 1991.  That was the effective date of the termination of Mr Crawford's employment with Colmore Depot: S.90(1)(a), (b) of the 1978 Act.

	(2)  Mr Crawford was out of time under S.101(1) and (2) for making a claim against his employer because of failure to comply with those provisions.  He was not entitled to a redundancy payment from the employer, as the employer was not liable to pay it. 

	(3)  An "employer's payment" in S.106(1A)(a) is a redundancy payment which the employer is liable to pay.  It follows that, if the employer was not liable to make the payment, the Secretary of State is not liable to make it.

	(4)  It is impossible, on the ordinary meaning of the statutory provisions, to contend that the time did not start to run under S.101 until the last day of the hearing of the other claims before the Industrial Tribunal (19th March 1992) or until the date when the Full Reasons were notified to the parties on 8th April 1992.

	(5)  There is no case of estoppel against the Secretary of State, either in fact or in law.  In order to raise an estoppel Mr Crawford would have to establish that the Secretary of State had made an express or implied representation to Mr Crawford on which he had relied to his detriment and that the Secretary of State now purported to act inconsistently with the representation.  Although this matter was not argued or investigated at the Industrial Tribunal, we gave leave, without objection from the Secretary of State, for the notice of appeal to be amended so that the point could be argued.  We are satisfied that no estoppel can be raised in this case for the following reasons:
		(a)  Mr Crawford is unable to identify any relevant representation by the Secretary of State to him concerning the continuity of his employment with Swithland; though Mr Britten, on behalf of the Secretary of State, did accept that, if Mr Crawford had enquired of the Department of Employment at any time before the decision of the first Industrial Tribunal, he would probably have been told, as others were told, that the Secretary of State believed that there was a relevant transfer within the meaning of the 1981 Regulations and that he was not entitled to a redundancy payment from the Secretary of State.

		(b)  The failure of Mr Crawford to take any step specified in S.101 was not in consequence of reliance on any representation made by the Secretary of State.  His belief seems to have been based on what he was told by the Receivers.  The Secretary of State could not be estopped by what was said to Mr Crawford by the Receivers (or by Colmore Depot or by Swithland Motors).

		(c)  The Secretary of State is not in fact purporting to act inconsistently with his earlier position, even assuming that there was a representation by him to Mr Crawford that a relevant transfer had taken place.  The Secretary of State's position is consistent: that an employee in the position of Mr Crawford is not entitled to a payment from the Secretary of State.  There was never at any time any representation to Mr Crawford that led him to believe that he was entitled to a redundancy payment from the Secretary of State or from anyone else.

	(6)  There is a further difficulty, even if an estoppel could be established.  Under the statutory provisions the Industrial Tribunal has no jurisdiction to make an order or declaration in his favour under S.106 or S.108 of the 1978 Act if the claim for the payment was not made in time.  A personal estoppel cannot extend the statutory jurisdiction of the Tribunal or create a jurisdiction which the statute did not in fact confer: see Secretary of State for Employment v. Globe Elastic Thread Co [1979] IRLR 327 at 329, paragraph 18.

	(7)  We would add that, if there is any legal or factual basis for a case founded on contract, negligent misstatement or misrepresentation (a matter on which we express no view), none of those causes of action would come within the jurisdiction of the Industrial Tribunal.

	For all those reasons this appeal is dismissed.

	We add a final comment.  If there is a lesson to be learnt from this case, it is that an employee of a company which becomes insolvent should make his claim for a redundancy payment to the employer and to the Secretary of State as soon as possible and not await the outcome of other proceedings to determine whether there was a transfer of an undertaking within the meaning of the 1981 Regulations.  It is important to bear in mind that, in this context, the Secretary of State does not occupy or assume the role of an adviser.  His position is not that of an independent neutral person.  The Secretary of State is potentially liable to meet payments which the insolvent employer is unable to meet.  Whatever the Secretary of State may say in relation to the position must be viewed as a statement by him as a potential party, not as an authoritative statement of the legal position, any more than the contention of any other party or potential party is to be regarded as authoritative advice to a person who may make a claim against him.