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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gocram Ltd & Anor v Murait & Ors [1999] UKEAT 1371_98_1709 (17 September 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1371_98_1709.html Cite as: [1999] UKEAT 1371_98_1709

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APPEARANCES

 

For the Appellants	MISS S HEWITT (OF COUNSEL) (Instructed by) Merriman White Solicitors 3 Kings Bench Walk Inner Temple London EC4Y 7DJ


 


MR JUSTICE MORISON (PRESIDENT): By a decision of an Employment Tribunal held at London (North) on 2^nd October 1998 the Applicant's claims against (1) Gocram Ltd (2) Maison Bouquillon Ltd were allowed to proceed on the grounds that the Tribunal was prepared to take jurisdiction over them, despite the fact that they had been presented out of time. There was an Appeal from that decision and in accordance with our procedure, a preliminary hearing was arranged at which the Appellants would have the opportunity of persuading the Employment Appeal Tribunal that there was an error of law in the Tribunal's decision. It came before the Employment Appeal Tribunal on 28^th June 1999 before the Honourable Mr Justice Charles and two lay members.

1. The decision of the Employment Appeal Tribunal was that it appeared to them that the Learned Employment Tribunal Chairman had applied the correct statutory test under the various statutory provisions and concluded that there was no reasonably arguable point of law in the Appeal and that it should be dismissed. But they noted that attempts had been made to contact the representatives of the Appellants who did not appear, without success, and no skeleton argument had been put in in accordance with the practice direction, albeit that the Appellants were represented by Counsel below and Counsel had settled the Notice of Appeal.
2. The Tribunal also noted that the Registrar had made an Order requiring the Notice of Appeal to be completed because there was a missing page containing the grounds of appeal. That direction was not complied with by the employers' solicitors. The Employment Appeal Tribunal concluded therefore on the papers, that there was no reasonable arguable point of law raised in the Appeal and it should be dismissed. But given the fact that there was no appearance, the Employment Appeal Tribunal gave the Appellants the opportunity to apply within 3 days of service of the Order, if they so wished, to seek an Order that the matter be relisted for a further preliminary hearing. It was indicated that on that application the solicitors would have to convince the Tribunal - or the person at this Tribunal who hears the matter - that the Appeal should be relisted for hearing by way of preliminary hearing.
3. Within the 3-day time period the employers indicated that they wished to reactivate the matter and to apply for the Appeal to be relisted. In support of their case, Miss Hewitt of Counsel has submitted a skeleton argument and has contended that it is reasonably arguable that the Employment Tribunal erred in law in the approach which it had adopted to the question of extension of time. She pointed out that the termination of the employment contracts occurred at the end of June of 1997 and that the complaints in relation to that were presented to the Employment Tribunal on or about 20^th February 1998. She reasonably observed that the employees who are the applicants in this case had found a friend who was a solicitor, who was giving them some advice and she points out that the advice should have included advice as to the time limits.
4. The circumstances in which the claim comes to be made in the first place is that the employees were employed by Maison Bouquillon Ltd (who I will call "the Second Respondent"). It got into financial difficulties. Receivers were appointed and ultimately, as we understand it, that company went into liquidation. But the Applicants discovered in due course that the company Gocram Ltd, the First Respondent, had, so to speak, taken over the business which had previously been done by the Second Respondent. When they became aware of that, which was in December 1997, they consulted solicitors who wrote a letter before action effectively to Gocram Ltd and then the Applicants went off to the Citizens Advice Bureau for advice and in due course, the applications were presented to the Employment Tribunal.
5. There were two claims which fell for consideration by the Employment Tribunal in terms of time limit. One was the claim for unfair dismissal, to which the reasonably practicable test applied and the second was the redundancy payments claim where the periods for making a complaint are different and those are contained in Section 164 of the Employment Rights Act 1996.
6. The Tribunal's decision is in this way. The Learned Chairman found that it was not reasonably practicable for the Applicants to bring any sort of claim against Gocram Ltd until the beginning of December 1997, which was the first time that any of them realised that Gocram Ltd might be involved. That finding is challenged because it is said that they were paid by Gocram Ltd for a short period towards the end of their employment but it seems to us that that was a factual matter for resolution by the Employment Tribunal and we approach this Appeal on the basis that he was entitled to conclude that it was in December 1997 that the Applicants first realised that Gocram Ltd might be involved.
7. As the Learned Chairman said, having regard to the provisions of Section 111 of the Employment Rights Act, the question then was whether, after they were in receipt of that information, they presented their application within a reasonable time thereafter. In paragraph 8 of his decision, the Learned Chairman sets out the arguments for and against that position. He found that they went promptly to see a solicitor. The solicitor was not at fault or remiss in advising them that a letter should first be written to Gocram Ltd. The Applicants, he noted, could not afford the costs of the solicitor dealing further with the matter and therefore, went to see the Citizen's Advice Bureau. In his view, the CAB did not delay but presented the applications as promptly as possible and accordingly, he found that they were presented within a reasonable time after the discovery of the facts suggesting that Gocram Ltd might be responsible for the payments.
8. He also found, in relation to the possible claim of unfair dismissal against Gocram, that for the same reasons the applications were presented within a reasonable time after the discovery of the facts, so he proposed to allow all of those matters to go forward.
9. He then dealt separately with the question of the claim for redundancy payments and he indicated in his decision that he was going to exercise his discretion to say that it was just and equitable that the claim for redundancy payments should be allowed to proceed for really, the same reasons as he had indicated in relation to the unfair dismissal matters.
10. Despite Miss Hewitt's able arguments supported, as she put it, by two particular authorities with which we will deal, we are wholly unpersuaded that it could be said that the Employment Tribunal has misdirected itself in law or has arrived at a conclusion which is perverse. There is much to be said for the arguments that the employees did not do enough between the ending of their employment until the beginning of December. There is much to be said for her contention that they could have presented a claim against the Second Respondents right from the outset. There is much to be said for the proposition that having gone to see the solicitors in December 1997 it was incumbent on them to present complaints forthwith, having regard to the lapse of time. The same point could be made in relation to the way in which the matter was dealt with by the Citizen's Advice Bureau. But all those matters were ones before the Employment Tribunal. This is an Appellate Court which can only interfere if it is satisfied that there has been a misdirection. It seems to us that there has been no overt misdirection. Indeed, it is clear that the Chairman has properly applied the law. What can only be said is that his conclusion was so out of line that it provokes or should provoke the attitude of "Oh my goodness" in the members of this Court. We were not of that view.
11. Insofar as she relied on the decision of Crawford -v- The Secretary of State for Employment, there Mr Crawford had, so to speak, allowed his colleagues to make the running and launch proceedings in Employment Tribunals and only after they had failed in their case, did he bring proceedings himself against another party. It seems to us that the facts of that case are so wholly different that it does not persuade us that it provides a foundation for the conclusion that the Employment Tribunal has made a perverse decision.
12. In relation to Croydon Health Authority -v- Jaufuraly & Anor which is reported at 1986 Industrial Cases Reports at page 4, again the facts were wholly different. There an applicant waited until after exhausting the entire disciplinary procedures within the Health Authority before commencing proceedings. Whilst the Employment Tribunal were prepared to say that time started to run effectively from the date when those internal proceedings had come to an end, the Employment Appeal Tribunal concluded that it was reasonable and practicable for them to have presented their complaints within time. We have to say that this seemed to us to be a very hard decision and it must be doubted whether a similar conclusion would be acceptable to the Employment Appeal Tribunal in 1999. But be that as it may, it does not support the conclusion which Miss Hewitt invites us to draw that the Employment Tribunal Chairman reached a decision which was perverse. It is simply an exemplar of the principle being applied in practice. It does not affect the principle itself.
13. Therefore, it seems to us, this Appeal should be dismissed.