Appeal Nos. UKEAT/0217/11/LA
UKEAT/0218/11/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 18 November 2011

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

UKEAT/0217/11/LA

MRS S WEEDON	APPELLANTS

PINNACLE ENTERTAINMENT LTD	RESPONDENT

UKEAT/0218/11/LA

MISS T RICHARDSON	APPELLANT

PINNACLE ENTERTAINMENT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants	MS SALLY ROBERTSON
(of Counsel)
Free Representation Unit

	
For the Respondent	Written Submissions	

SUMMARY
PRACTICE AND PROCEDURE – Chairman alone

Judge alone heard complaint under s189 TULRCA 1992.  No jurisdiction to do so under s.4(3)(a) ETA 1996.  Appeal allowed.  Case remitted for re-hearing by full Employment Tribunal.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	The history of this matter, which has been proceeding before the Ashford Employment Tribunal is as follows.  Miss Richardson commenced employment with Pinnacle Entertainment Ltd as a warehouse operative on 8 November 1989; Mrs Weedon on 28 June 1993.  They continued in that employment until Pinnacle went into administration on 3 December 2008.  Miss Richardson was dismissed on that date; Mrs Weedon a little later on 29 January 2009.  They were not the only ones to lose their jobs.  Approximately 100 employees were made redundant, with Miss Richardson, on 3 December 2008.  Others, including Mrs Weedon, were made redundant on various dates up until 31 July 2009.

2.	Some of the redundant employees brought claims for a protective award, within time, in the Ashford Employment Tribunal.  Those claims were stayed on 11 June 2009.  These two Claimants did not lodge their claims until 31 July 2009; they were out of time in circumstances to which I shall return.

3.	On 5 August 2009 the Tribunal wrote to both Claimants, pointing out that their claims had been presented outside the three month primary limitation period and informed them of the Tribunal’s power to extend time if it is just and equitable to do so.  In fact, protective award claims are subject to the reasonable practicability escape clause; Trade Union and Labour Relations Consolidation Act 1992, s.189(5)(c).  In response to that letter, both Claimants wrote promptly to the Tribunal on 12 August, explaining why their claims were lodged late.

4.	By a letter dated 7 December 2009 the Tribunal wrote to the Claimants stating that the administrators had confirmed their consent to the claims proceeding.  Directions for the further conduct of the claims were necessary and then this:

“It is neither appropriate nor necessary for every such Claimant to attend at or be represented at the hearing.  Employment Judge Kurrein therefore intends to select a sample of representative Claimants, numbering no more than 5, to conduct the proceedings on behalf of all Claimants unless a majority of Claimants nominate 1 or more, but no more than 5, of their number to act on their behalf.  Any such nominations must be received at this office within 21 days.”

5.	I note that no further reference is made in that letter to the question of time limits.  On 3 February 2010 the Tribunal wrote to all Claimants, informing them that the Employment Judge had directed that five named Claimants were to speak on behalf of all Claimants at the hearing.  They did not include Mrs Weedon or Miss Richardson, and he adds this:

“There is therefore no need for other Claimants to attend the Hearing unless they wish to do so.  If you do intend to attend please let us know, as we may need to arrange larger accommodation.”

6.	Accompanying that letter was a Notice of hearing.  I have been provided with a copy today.  It notifies the parties that the claim will be heard at the Ashford Tribunal on 31 March 2010, and adds this in bold letters: “the Hearing will be conducted by an Employment Judge alone (sitting without members)”.

7.	These two Claimants did not attend the hearing listed for 31 March and that came on before Employment Judge Druce, sitting alone.  By a Judgment dated 26 April, for which Reasons were given on 14 May 2010, that judge upheld the claims of all Pinnacle employees who had brought their claims within time and had been dismissed by Pinnacle between 3 December 2008 and 2 March 2009.

8.	However, those employees whose claims were lodged outside the primary limitation period, including these two Claimants, had their claims dismissed.  At paragraph 12 of his Reasons, the judge said:

“12. Section 189(5) of the Act provides that an Employment Tribunal shall not consider a complaint for a protective award unless it is presented to the Tribunal before the date on which the last of the dismissals to which the complaint relates takes effect or during the period of three months beginning with that date.  Many of the claims were not presented within that time and the Tribunal did not have jurisdiction to hear them.  There were no grounds submitted that it had not been reasonably practicable to have presented those claims in time.”

9.	It therefore appears to me that the letters written by these Claimants on 12 August 2009 as to why their claims were lodged late, were not before Employment Judge Druce.  They ought to have been.

10.	Against that Judgment these two Claimants appealed.  On the paper sift HHJ McMullen QC stayed the appeals pending answers by the Employment Judge to the following questions under the Burns/Barke procedure by an order dated 19 August 2010:

“In respect of each Appellant, whether their claim failed
(a)	because the Respondent did not fail to consult, and giving reasons; or
(b)	because the Employment Tribunal had no jurisdiction as the claim was out of time
(c)	If the latter, whether the Employment Judge considered the various claims that the Claimants did not know of the protected award regime or other reasons making it not reasonably practicable to comply, as now asserted in the Notices of Appeal.”

11.	Those questions having been put, the judge responded by a letter dated 28 October 2010.  Employment Judge Druce said, at paragraph 3:

“3.	I found that the Tribunal did not have jurisdiction to consider the claims of the remaining Appellants, Mrs S Weldon (sic), Miss T Richardson, Mr D Peverley, Miss L McConnell, Ms D Wilson, Mrs K Hall, Miss K Sandles, Mr R Armstrong, Miss H Wilkie, Miss C E Wilkey as they were presented out of time.”

12.	The appeals were then considered and rejected on paper by Burton J under rule 3(7) as having no reasonable prospect of success.  Until that point the Claimants had represented themselves.  However at a rule 3(10) hearing before me, held on 13 April 2011, the Claimants were represented by Ms Robertson of counsel under the ELAAS pro bono scheme.  Having heard oral submissions I permitted the appeal to proceed to this full hearing on the basis of amended grounds of appeal.

13.	Today, Ms Robertson again appears on behalf of these two Claimants.  Pinnacle is now in liquidation and, by letter dated 1 September 2011, the joint liquidators have indicated that they do not intend to resist the claims for protective awards brought by these Claimants.  That said, I should not uphold the appeals unless I am satisfied that the Appellants can show that the Employment Judge fell into error as a matter of law, in dismissing their claims on limitation grounds.

14.	However, today Ms Robertson raises a fundamental jurisdictional point for the very first time.  It requires no further evidence.  It is a potential knock-out blow, to use the expression of Brooke LJ in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719, and therefore I have entertained the point.  

15.	She has taken me to s.4(3) of the Employment Tribunals Act 1996, which lists those complaints in respect of which an Employment Judge sitting alone has jurisdiction.  Under the 1992 Act there are two wholly immaterial complaints and then complaints under s.192.  To put that into context, the present complaints are brought under s.189 of the Act for a protective award.  S.192 deals with complaints by employees who fell within the description of employees to which a protective award relates, but where the employer has failed to pay the individual employee remuneration under the award.

16.	It therefore seems to me that there is a clear distinction between complaints under ss.189 and 192.  The latter can be heard before a judge alone, the former cannot.  In these circumstances I am bound to accede to Ms Robertson’s submission that in listing this matter before a judge alone, and Employment Judge Druce sitting alone to determine the s.189 complaints of these two Claimants, did so without jurisdiction by virtue of s.4(3) of the 1996 Act and following the approach of the division of this Tribunal presided over by Cox J in Insaidoo v Metropolitan Resources North West Ltd UKEAT/0365/10/DA, 23 March 2011, I am bound to allow this appeal.

17.	So far as disposal is concerned, whereas normally I would have power under s.35 of the Employment Tribunals Act to exercise all the powers of the Employment Tribunal and thus possibly allow the appeals on their merits and deal with the question of reasonable practicability, the limitation point, by hearing evidence from the two Claimants, I am precluded from doing so because the powers of the Employment Tribunal do not include the power to sit alone on a s.189 complaint.

18.	In these circumstances, unhappily, I am bound to remit the case to a full Employment Tribunal for re-hearing.  In case it is of any assistance to that Tribunal, I have considered the explanation given by these Claimants for their failure to lodge claims in time in their letters dated 12 August 2009.  I have also received submissions from Ms Robertson as to the ET information on their website, which does not refer to protective awards as a potential claim.

19.	I do not seek to pre-judge what the full Employment Tribunal must decide, but I am satisfied that there is, at the very least, a highly arguable case that it was not reasonably practicable for these claims to be presented within time.  That, ultimately, will be a matter for the Employment Tribunal to decide.