Appeal No. EAT/872/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 October 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR P DAWSON OBE
MR J R RIVERS

MR D IBEKWE	APPELLANT

LONDON GENERAL TRANSPORT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal against a decision of an Industrial Tribunal which was entered in the Register on 26th June 1996. The tribunal dealt with two matters, but only one of which is of concern to this Employment Appeal Tribunal. The purpose of this hearing is to determine whether there is an arguable point of law raised by Mr Ibekwe in relation to the tribunal’s decision on the first matter.

	The facts relevant to this case are as follows. An application was lodged on behalf of the prospective appellant on 11th January 1996 which contained the following information. It described the type of complaint that was being made by reference to the Transfer of Undertakings (Protection of Employment) Regulations 1981. The appellant recorded on his IT1 that the dates of his employment were from 5th December 1988 to 25th January 1995, and the matters about which his complaint relates were said to have taken place with effect from 5th November 1994. It was on that date that London General Transport Services Ltd took over the part of the business in which Mr Ibekwe was employed from the statutory body London Transport. What happened was that it was a management buy-out, and at the same time as the transfer took place a negotiation took place between the new manager and trade unions which arrived at an arrangement which affected, altered and varied contracts of employment, including those of Mr Ibekwe. We shall refer to this in a moment.

	One of the changes affected Mr Ibekwe considerably, that is in relation to the opportunity he would have for a medical retirement, as opposed to a medical dismissal. At the time of the transfer, Mr Ibekwe was not at work because he had been injured in an accident on 15th October 1994 and had not returned to work by the time he was dismissed on sickness grounds on 25th January 1995. It his contention that but for the change in terms and conditions, he would have been eligible to have received medical retirement from the company which would have involved him in receiving a pension of one kind or another. The complaint as I have indicated was therefore presented well after he had ceased to be employed by the company. 

	The Industrial Tribunal concluded that the appellant was fully aware of the changes in his terms and conditions of employment, and of his rights to make complaints, because he was advised by a solicitor in connection with his unfair dismissal proceedings which turned out to be unsuccessful. The Industrial Tribunal concluded on this aspect of the matter:

“13. ... In my opinion there was absolutely no reason why, if the Applicant wished to progress a breach of contract claim, that claim could not have been brought within the three month period. I cannot say that it was not reasonably practicable to have brought the claim within the time limit. Therefore I find that the Tribunal has no jurisdiction to her the Applicant’s claim ...”

	What is said in this case, and we start with it, is that the way the hearing was conducted came as something of a surprise to Mr Ibekwe, who had not prepared himself for it. He had been sent a notice by the Industrial Tribunal which indicated, in effect, that directions would be given for the hearing of his complaint, at least that is what he thought he was attending to deal with. He had previously been told of a potential jurisdictional hearing, but that was not the position as he saw it as he prepared himself for the hearing on the Monday, 3rd June 1996. 

	In those circumstances, we have listened with care and given much more latitude to Mr Ibekwe than we normally would have done on an application such as this. We invited him to put before us any matters which he says would go to affect the decision of a tribunal. In effect, he says, that he was incapacitated until 21st May 1995, he is registered disabled, he has attended a disability course, and although he attended his unfair dismissal hearing in September 1995, he did not feel that he could be criticised for failing to put in a complaint before that time. If there is a time limit of three months as the Industrial Tribunal Chairman has concluded, we agree with the decision of the Industrial Tribunal that, notwithstanding the points which have been made, and which I have indicated, it seems to us that it was manifestly reasonably practicable for Mr Ibekwe to have presented the claim within the three month time period. We do not regard the other explanations such as the cost of putting in an application, or consulting his solicitor, or going to the County Court as being satisfactory explanations for a failure to present a complaint within time. 

	As it seems to us, the real point that is raised in this case, which Mr Ibekwe has advanced with considerable skill, if we might say so, is whether there is in fact a three month time limit at all. What is said in this case, is that the right not to have your terms and conditions of employment changed in the context of a transfer of an undertaking, is a right conferred on individuals through the Acquired Right Directive, and the regulations which were introduced to give affect to them, namely the 1981 Regulations which is contained in statutory instrument 1981/1794.

	Mr Ibekwe submits that Regulation 5 gives effect to Article 3 of the Directive, and that it is a matter of public policy that employees should have their same terms and conditions after a transfer as they enjoyed immediately prior to it. He relies on the Wilson decision in this court to establish that even a negotiated change in those terms and conditions is to be regarded as of no effect by virtue of Regulation 12. He says in those circumstances, that he has a distinctly arguable case that as at the date when he ceased to be employed, the employers were unlawfully deducting from his wages the difference between what he was paid and what he should have been paid, and that his terms and conditions were changed to his disadvantage in relation to the circumstances in which his employment could be terminated when he was medically unfit.

	He submits to us that if there is a three month limit provision as had been held by the Industrial Tribunal Chairman and as is the case, then nonetheless as a matter of European law, he is effectively being denied any remedy in our courts to complain against the breaches which have occurred in this case. He says, in reliance on the Factortame case, that there are matters to be taken into account by us which bear on the question as to whether our domestic courts should override the three month limit provision. He says that in the Factortame case the court should take into account when considering whether to override a provision of domestic law, “the importance of upholding the law of the land in the public interest, bearing in mind the need for stability in society and the duty placed on certain authorities to enforce the law in the public interest. However, the court should not restrain an apparently authentic law unless it was satisfied, having regard to all the circumstances, that the challenge to its validity was prima facie so firmly based as to justify such an exceptional course being taken.” 

	In support of the considerations on public interest, he refers to the fact that there was a management buy-out in this case, that without his knowledge there was a deal done between those managers who were buying and the union which took a stake, he says, in the new company. He further says, that the Passenger Transport Authority under Section 68 of Transport Act had power to give effect to the transfer arrangements through a statutory scheme under that Act, and therefore what has happened in this case has been contrary to the public interest because the provision of the Transfer of Undertakings Regulations have effectively been evaded. He says that if this court denies him any jurisdiction, then those who are currently employed will continue to suffer deduction from their wages, which, he says is unlawful. He draws attention to the fact, as is the case, that he and other employees signed petitions objecting to the changes in their terms and conditions of employment.

	It seems to us that interesting though those arguments are, they do not in the end bear on the matter at issue. In the Factortame case, there was an obstacle to the applicant succeeding. Here, there is a time limit, but there is ample access to the courts within the three month time period, and we do not consider in those circumstances that Factortame has any bearing. There is no decision of which we are aware from the European Court of Justice which suggests that domestic legislation is not entitled to make provision for time limits for complaints of breaches of any of the matters covered in European law. 

	Accordingly, we think that there is no ground for challenging the three month time limit, despite the argument that we have received, the force of which we fully understand. Therefore, one is faced with a simple case in which there is three month time limit; the time limit has not been complied with; and although there is some merit in many of the points which Mr Ibekwe has made as to why he did not file an application within the time provided, in our judgment he cannot possibly establish that it was not reasonably practicable for him to have brought his complaint within time. It is therefore, with some regret, because Mr Ibekwe argues matters in an interesting and compelling way, that we must rule that this appeal is not fit for a full hearing, and therefore must be dismissed.