Appeal No. EAT/925/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR K EDMONDSON JP
MR J HOUGHAM CBE

MR G W BOLD	APPELLANT

BUSINESS LOCATION SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MISS KATE GALLAFENT
(of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme

		

JUDGE J ALTMAN

1	This is an appeal from the decision of the Employment Tribunal sitting at Truro on 23 June 2000 when the application was dismissed for being out of time.  The appeal relates solely to the claim for payment of arrears of wages, and it comes before us by way of a preliminary hearing to determine if there is a point of law capable of argument in full before the Employment Appeal Tribunal.  

2	The case hinges upon the date upon which payment became due to found the jurisdiction of the Tribunal.  The Appellant left his employment on 4 August 1998.  On 3 November 1998 the Employment Tribunal found that, in some respects, time expired for claims for sums due.  However the Originating Application was issued on 8 May 2000 - I use the word “issue” because that was the word used by the Employment Tribunal.  

3	The Appellant claimed, under a particular term of the contract which is quoted in the Appellant’s letter dated 8 May 2000 to the Employment Tribunal shortly before the hearing.  The Respondents, it appears, were dependent upon funding from outside bodies, who delayed payment of money, in respect of work done some considerable time in advance by the Appellant. Accordingly and as we understand it, and the Respondents being a small organisation, an arrangement was made for a substantial part of the Appellant’s remuneration to be delayed for a substantial period so as to provide an opportunity for him to be paid out of the funding later received.  The term is quoted by him as being that:
“(4) The company would pay 40% of my invoices less a 10% administration charge.  
  (5) Payment of the 60% of my invoices would be made:
 (5.1) In the calendar year following the financial year from 1st September to 31st August in which the invoices were dated”

4	In his Originating Application, on page 9 of our bundle, the Appellant says this:
“The worst case interpretation of clause 5.1 is that an invoice submitted at the beginning of their financial year* may not be paid until the end of the following calendar year* that is two years and four months after submission of the invoice.  
The last invoices I submitted for the period ending the 31st August 1998”

And we imagine that the word “were” is inadvertently omitted after the word “submitted” which I have quoted.  He then suggested that they were scheduled for payment on 1 September 1998 or after, and were due for payment in the following calendar year.  

5	In essence, what is said is that the Employment Tribunal misconstrued the provision of the contract in relation to this particular case.  The operative date, the Appellant was saying, was the date of the invoice, and it seems to us there are the following points of law worthy of argument.  

6	First, did the Employment Tribunal have before it the material upon which to determine the date of the invoices, and as a subsidiary point, did they err in failing to seek to identify that date?  The Appellant says that there were letters referred to in a document headed “Further information to assist the Employment Law Appeal Advice Scheme” in which he refers to a letter of 31 July 1998 from the Respondents’ Project Manager, in which, he says, his invoices were acknowledged, and submitted for payment at the beginning of the financial year starting 1 September 1998. Of course if that is correct, and the Appellant’s analysis of the term of his contract is correct, the following calendar year would not begin in relation to that until 1 September 1999, and the calendar year following that financial year, would not begin until 1 January 2000, so that the sum would not become due until after 31 December 2000, after which it would become overdue.  

7	In their decision, the Employment Tribunal considered the term of the contract which was to be applied, in paragraph 9, but it is arguable that they did not identify the term, with sufficient particularity, and apply it to the facts of the case.  The crunch question, it seems to us, for the determination of the Employment Appeal Tribunal is whether it was a term of the contract that the trigger date, if we can so call it, was the date on the invoice, and coupled with the issue of fact as to whether invoices were submitted after 31 August 1998, and the arguable question as to whether the Tribunal erred in not considering these.  

8	There is furthermore, it seems to us, a subsidiary argument which is even if the Appellant was right, and there was no obligation to pay until after 31 December 2000, does that mean that his application was in fact premature?  We have been greatly assisted in this case by Miss Gallafent, who has given of her considerable expertise and time without remuneration, and has therefore assisted not only us, but the Appellant, and she has suggested that the application may be in time because there was an anticipatory breach.  That is an interesting legal argument, but it does not seem to have been one before the Tribunal, as nor, indeed, does the question as to whether the application was premature.  

9	Accordingly, we give leave for this matter to proceed to a full hearing.  It will be listed for half a day, Category C, and Skeleton Arguments to be submitted not less than 14 days before the hearing.  

10	We would only wish to make it clear to the parties that the current listing of appeals before the Employment Appeal Tribunal means that it may be some considerable time before there is a main hearing.  If the Appellant is mindful of alternative routes to recover the sum of money due by 1 January 2001, he would be well advised not to assume that time will wait for this particular hearing.