Appeal No.	 EAT/876/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MRS T A MARSLAND
MR J A SCOULLER

HOWLETT MARINE SERVICES LIMITED	APPELLANTS

MR K BOLAM & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR GERARD CLARKE
(of Counsel)
Instructed by:
Mr P McGowan
Messrs Watson Burton
Solicitors
20 Collingwood Street
Newcastle-upon-Tyne
NE99 1YQ	

	JUDGE DAVID PUGSLEY:	This is a case where the appellants seek to appeal a decision from the Newcastle Employment Tribunal on the question of the payment of a protected award. We want, right at the start, to pay tribute to the Chairman for the drafting of the decision. We are going to allow this matter to go to a full hearing before the Employment Appeal Tribunal because there are clearly arguable issues. This is a complex area and we can clearly see the reasoning behind the decision.

1.	The appellants’ skeleton argument drafted by Mr Clarke, who is now before us, is extremely helpful. First of all we are grateful for the fact that we have the treat, if we may say so, of someone not arguing the unarguable. 

2.	It is common ground that as far as one aspect of the decision of the Newcastle Employment Tribunal that it was not reasonably practicable for the applicants’ application under s.192 of the Trade Union Labour Relations (Consolidation) Act 1992 to be submitted within the period set out in s. 192(2)(a) of the 1992 Act, that is clearly the correct decision and no appeal arises therefrom. 

3.	What is argued is the other three findings that:

“1 … (b) the applications were presented within a further period which the Tribunal considered to be reasonable;
2	the complaint of the applicants under section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well-founded.
3.	the respondent shall pay to the applicants the sums shown in the Schedule to this decision.”

4.	We are rather concerned about a concession, which appears in the tribunal’s decision in paragraph 17:

“Were the applications submitted in time?
Applying the words of section 192(1), was the complaint presented to the Tribunal “before the end of the period of three months beginning with the day (or if the complaint relates to more than one day the last of the days) in respect of which the complaint is made of failure to pay remuneration”?
What does that mean?
It appears that one must first ascertain the period in respect of which the employer failed to pay remuneration. That must mean the days covered by the protective award, ie the protected period. The complaint is that the employer failed to pay remuneration in respect of the protected period.
The period during which the section 192 complaint therefore, has to be made is a three month period beginning with the last day of the protected period.
Both the applicant and the respondent submitted that this is the correct interpretation and we are bound to agree with them. The Act has been drafted in the clear expectation that the protected period will be ascertained sufficiently in advance to enable a section 192 complaint to be presented in time.”

	We appreciate that that was a concession made by two experienced practitioners. We are unsure when the tribunal says they are “bound to agree with them” whether they are accepting the cogency of the arguments put for that interpretation or whether they themselves feel bound because the matter is not in dispute between the two sides. 

5.	Mr Scouller, who has many years’ experience of this Employment Appeal Tribunal, has raised an issue, which we consider should be further considered. The interpreation of s.192(2) is, we find, somewhat difficult, because the language talks of a “failure to pay”. 

6.	If one actually looks at the documentation of the statement related to the recoupment of the Jobseekers' Allowance and Income Support, for example taking the earliest one in time, it will be seen that that instructs the respondents that the duty to pay under (b) is not payable until the Department of Employment has served a notice (called a recoupment notice) on the respondents to pay the whole or part of (b). Now, quite simply, is there a failure to pay if you have not had a bill and do not know how much to pay? We consider that despite the concession of the advocates, that an issue is raised here, that was the subject of a concession below. Without going into the jurisprudence of this tribunal’s powers where there has been concession below, we think that that is a matter that should be fully argued before this tribunal, because it is quite clear – and Counsel for the appellants has made it clear – there are considerable difficulties in the construction of this statute. 

7.	We therefore, allow this appeal to go forward on the grounds argued in the skeleton argument. We direct that it should be listed for one day. We direct it should, if at all possible, be decided by the President. We also direct that the papers in this case be served on the relevant Secretary of State, so that, if he so wishes, he may intervene in these proceedings. We are told that this company is trembling on the brink of insolvency. There are clear public issues arising in a matter such as this, in view of the insolvency provisions. Protective award cases do not often come to Employment Tribunal or indeed to this tribunal. We think that the statutory construction of the scheme and the difficulties which are so well set out in the decision are such that this should be regarded as a case raising a fundamental issue of principle that should receive the fullest possible argument and also the most authoritative decision making.