Appeal No. UKEAT/0573/05/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 January 2006

Before
HIS HONOUR JUDGE REID QC
(SITTING ALONE)

MR E A E EDEM	APPELLANTS

(1)	EGG PLC
(2)	MS J CROFT 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR E A E EDEM
(The Appellant in Person)	
For the Respondent	MR B BURGHER
(of Counsel)
Instructed by:
Messrs Olswang
Solicitors
90 High Holborn
London WC1V 6XX	

SUMMARY

Practice & Procedure: Striking-Out/Dismissal & 
Contract of Employment: Damages for Breach of Contract 

On Respondent’s application the Employment Tribunal struck out a variety of the Appellant’s claims, though the factual substratum remained to be investigated in connection with race discrimination and sex discrimination claims. Held: ET correct to strike out claims that were out of time or otherwise hopeless but should not have struck out one very minor claim for travel expenses which was in time and could theoretically succeed even if the race and sex discrimination claims failed.

HIS HONOUR JUDGE REID QC

1.	This is an appeal from a decision of Mr Britton, as Chairman, on a pre-hearing review of three now consolidated cases brought by the Appellant here, Mr Edem, against his former employer, Egg plc and one of their managers.  

2.	The appeal, as it comes before me, is limited in extent in that only some of the grounds, i.e. grounds concerned with the strike-out order made by Mr Britton, have been allowed to proceed to this hearing following an order of Elias J on 12 October 2005.  

3.	The position is that Mr Edem began three sets of proceedings at various times.  The first were proceedings commenced on 21 May 2004 by which he alleged race discrimination alone.  He asserts that, as a matter of plain English, those proceedings also included a claim for non-payment of wages as a separate stand alone claim.  As a matter of plain English, I am afraid they do not.  Although he complains about not receiving the entirety of the bonus to which he says he would have been entitled, his non-receipt of that bonus is expressed simply and solely in terms of discrimination against him on the grounds of his race.  

4.	The second of the claims - the 20 October claim – that claims for “unfair or constructive dismissal” “discrimination” and “other payments you are owed”.  

5.	The third, commenced on 11 March 2005, again claims “unfair or constructive dismissal”, “discrimination”, and “other payments you are owed”.  There is a distinction as to his employment dates between the second and third sets of proceedings in that in the October proceedings he says that his employment ended on 22 July; in the March 2005 proceedings he says that his employment ended in December 2004, the date “the 12th” is typed in and then struck through, but it was mid December 2004.  The position was that he had difficulties and from July through to December was at home, though being paid, and he has sought to assert, in effect, alternative cases: (1) that he was constructively dismissed in July (though he took no overt step in relation to that constructive dismissal until issuing his proceedings on 20 October) or (2) that he was actually affirmatively dismissed, if I can put it that way, in December.  

6.	The difficulty that he has in relation to asserting a July dismissal date is primarily that he made no effort to accept the repudiation that he alleges existed (and which is, of course, strenuously denied) prior to the issue of the proceedings of 20 October and that even from that date on, for example, by dealing with such matters as return to work and disciplinary matters, he, and more specifically by accepting his salary thereafter until the affirmative dismissal in December, he remained to all outward appearances still employed.  

7.	I was referred, as a result of queries that I raised, to the decision of the Employment Appeal Tribunal in Hunt v British Railways Board [1979] IRLR 379 where something rather similar had happened to a railway man and as the Employment Appeal Tribunal held, the Appellant’s behaviour was not consistent with his position that he had treated his contract as at an end by reason of his employer’s conduct.  Although in a constructive dismissal situation, issuing an Originating Application is a very good way of the employee saying that he has made up his mind to treat the contract as being at an end by reason of the employer’s conduct, the law does not allow the employee to have his cake and eat it; he must not go on acting as if he was employed when what he is trying to say is that he was not.  

8.	Mr Edem has sought to get round that difficulty by asserting that, in fact, there were two contracts of employment: one down to July and then a separate contract of employment thereafter and for these purposes, he has relied on the decision in Hogg v Dover College [1988] ICR 39.  But that, it seems to me, was a substantially different case.  There, a teacher was told that he was being given far fewer hours of teaching and as a result of that, his solicitors wrote claiming that he had been dismissed by the letter which cut his teaching hours.  Thereafter he went back to teaching, pending the resolution of the question of whether he had been dismissed, on the basis of the new arrangement which had been offered to him.  Garland J said in relation to that:
“The question then arises whether he accepted the employers’ conduct as a repudiation of their obligations to him or whether it has to be said that by his conduct there was, in the event, no acceptance or indeed, an affirmation.  Of course one asks: affirmation of what?  It could only be of a totally different contract.  This was not the affirmation of the continuance of the contract where one term has been broken; this is a situation where somebody is either agreeing to be employed on totally new terms or not at all”. 

9.	That is different to this case where, under the terms of Mr Edem’s engagement, he had a job title which might be changed and he had duties which might be changed (see paragraphs 6 and 7 of his employment contract).  What happened between July and December was that he was at home, theoretically awaiting placement elsewhere in the organisation.  To suggest, as he has sought to do today (though it appears not before the Employment Tribunal), that this produced an entirely new contract under which they were going to pay him at his old rate for sitting at home doing nothing seems to me to be wholly fanciful.  It would, incidentally, have the added difficulty, from his point of view, that it would mean that his most recent application issued in March 2005 alleging unfair dismissal in the previous December would inevitably fail because he would not have had the 12 months’ service under the new contract coming into effect, on his view, in July of that year.  

10.	Be that as it may, the position, it seems to me, is that the Chairman below was entirely entitled to take the view and, indeed, was inevitably bound to take the view that he remained employed, not having resigned or otherwise evinced a settled intention not to be bound by his contract of employment until the affirmative dismissal on 13 December 2004.  In these circumstances, the Chairman when invited to strike out the constructive dismissal claim based on a dismissal taking effect in July was, in my judgment, entirely correct in doing so because it was a case where the claim was misconceived and where it had no reasonable prospect of success.  

11.	That was the first of the matters that was struck out.  It leaves, of course, Mr Edem with his claim for unfair dismissal based on the affirmative dismissal in December 2004 and it seems to me that in exploring that, all factual issues which he may wish to explore are still open to him.   The events leading up to, surrounding and following on from July are all necessary and essential parts of the surviving unfair dismissal claim and I can see no disadvantage whatsoever.  This is a very different sort of case to the sort of case that he pressed on me – Hambly v Rathbone Community Industry Ltd [1999] 617 IRLB 10 - where the striking out of part of a claim would have resulted in taking out a vast tranche of the factual material upon which the Claimant wished to rely and might have substantially weakened her claim in other areas.  It follows that, in my judgment, so far as the constructive dismissal claim relating to the July dismissal is concerned, the Chairman was entirely right.  

12.	There remain two other points, there having been no objection to the striking out of an equal pay claim which, in fact, was in one of the applications - as far as I can see, per incuriam, because it was not intended to be there.  That is in relation to the non-payment of the bonus and the non-payment, it is said, of some expenses.  So far as the non-payment of the bonus is concerned, that was something for which the time limit for making a claim had long since expired by the time of the first of the applications in which it was properly claimed.  As I have already said, the May 2004 application related only to race discrimination and to nothing else and could not, on any fair reading of it, in plain English terms, by someone, lawyer or not, have been said to amount to a separate stand alone claim for some form of wage deduction.  That, as I say, was clearly out of time.  Again, the Chairman was quite right to strike it out - no reasonable prospect of success and, in the context, misconceived.  

13.	There remained, however, the claim in relation to unpaid expenses.  These unpaid expenses were expenses apparently for travelling to Derby for the purposes of an interview.  The claim was ventilated first of all in the context of race relations.  Secondly, it was ventilated in the context of the October 2004 application and thirdly, it was ventilated in the May 2005 application.  So far as the October 2004 application is concerned, non-payment of expenses is not something which is within the ambit of the jurisdiction of an Employment Tribunal whilst the employee is still employed.  The extension of jurisdiction regulations and the meaning of wages as defined in the Employment Rights Act 1996 make it clear that expenses are not, for these purposes, wages so as to be within the Tribunal’s jurisdiction otherwise than after the employment has come to an end.  It follows that the only claim where this matter was raised when it was within the jurisdiction of the Tribunal was in the most recent of the three consolidated claims, namely the 11 March 2005 claim.  The amount of money at stake is piffling in the context of the amounts that Mr Edem would reasonably hope to recover were he successful all down the line, as he hopes to be, and in any event, even if the claim were not allowed to remain as a free standing claim, Mr Edem might, if he made good his other allegations, not unreasonably hope to recover this amount under his race discrimination or his sex discrimination claim.  But there is at least a theoretical possibility that this is a claim on which he might, as a matter of contract, succeed even if he were to fail all down the line on everything else.  It might be held quite simply that although he was fairly dismissed and was not discriminated against in any way, nonetheless, owing to a contractual mishap he had not been paid this comparatively small amount which he says he is entitled to.  I should say that the entitlement to this amount is strongly challenged and challenged on grounds which, at first glance, do at least appear to have a very reasonable prospect of success.  But that is not for me to decide.

14.	The question then is whether, in those circumstances, the Chairman of the Tribunal was entitled to say that the claim should be struck out on the basis that it was not a stand alone claim and that the hearing could be much more conveniently dealt with, with it arising only as part of the discrimination claim.  With a good deal of regret, I have come the view that he could not properly have struck this particular claim out.  It is pleaded as a stand alone claim.  It is clear that its primary existence is as a part of the discrimination claims but nonetheless, it is a claim which could, theoretically at least, succeed and which cannot be said either to be misconceived or to be bound to fail.  It could not, it seems to me, fall within any of the other heads under which a chairman is entitled to strike out a part of a claim and so to that extremely limited extent, and I have to say it with some regret, I have come to the conclusion that this appeal must be allowed to that extent.

15.	I sympathise very strongly with the Chairman who was clearly trying to marshal what is going to be a very long and very acrimonious dispute into as user-friendly a form as possible; and I particularly sympathise with him because it must be a very long shot that treating this particular miniscule head of claim as a separate head of claim will make any difference to the outcome.  But it does not seem to me that as a matter of law, he could not properly have struck out this particular minor point and therefore for the reasons which I have given, and to that very limited extent, this appeal must be allowed.