Appeal No. UKEAT/0126/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 April 2010

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

THE COMMISSIONER OF POLICE OF THE METROPOLIS (APPELLANT)

MR C RIXON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SIMON CHEETHAM (of Counsel)

Instructed by:
Metropolitan Police Legal Services
New Scotland Yard
Broadway
London
SW1H OBG

For the Respondent
MR MARCUS PILGERSTORFER (of Counsel)

Messrs Russell Jones & Walker Solicitors
50-52 Chancery lane
London
WC2A 1HL

JURISDICTIONAL POINTS: Extension of time: reasonably practicable

The Claimant, a serving police officer had been granted anonymity at the Stockwell Tube inquest. He subsequently raised PIDA detriments in an in-time claim form, but on advice did not disclose his name or address, giving his Police Federation representative's. The claim was not accepted by the Secretary and the Regional Employment Judge for want of those details. At a PHR to determine whether a new claim was in time, the Employment Judge decided it was. On appeal by the Commissioner, it was agreed that if the Employment Judge were wrong on being precluded from considering whether the original claim was in time by Rule 3(9), the claim would be in time. Held: Rule 3(9) did not so constrain the Employment Judge. Since her view was clear, there would be no change if this point were remitted to her, the Judgment was unarguably correct. and it was not necessary to consider the other grounds of appeal.

1. This case takes a narrow point about an arcane aspect of Employment Tribunal procedure. I will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Respondent in those proceedings against a judgment of Employment Judge Ms H Clark, sitting alone at London Central on 15 December 2009, registered with Reasons on 7 January 2010. The Claimant represented himself. Today he has the advantage to have secured the services of Mr Marcus Pilgerstorfer of Counsel who has transformed this case. The Respondent is represented today by Mr Simon Cheetham of counsel, different counsel having appeared below.

1. The issue was whether or not a claim had been validly presented, and, if it was not, was it because it was not reasonably practicable so to do; in which case was it presented within a reasonable time thereafter; see s. 111 of the Employment Rights Act 1996.

1. The Claimant made a number of claims, substantially that he had made a disclosure in the public interest. He is a Police Sergeant in the service of the Respondent, and had been engaged in the Coroner's inquest into the killing of Jean Charles de Menezes at Stockwell Tube Station. The Coroner had given him anonymity for his own protection and in the public interest.

1. The circumstances which he wishes to place before an employment tribunal touch upon his role. Being a member of the Police Federation, he took advice on one aspect of the claim he himself was to present. That was whether he could in submitting his claim form to an employment tribunal leave out his name and address, instead placing on the record the name and address of a representative of the Federation. The Federation carries out trade union functions while itself as a matter of law not being a trade union. If it were for me to determine, I would hold that it carries out a responsible professional function, providing advice and representation to its members on aspects on what are loosely known as employment matters.

1. The claim originally presented was out of time. The circumstances which the Claimant wishes to stitch together in his claim end on 20 March 2009 and the time for submitting his claim expired on 19 June 2009. His claim form was submitted on line on 12 June 2009. He did not give an email address. The Employment Tribunal server acknowledged it internally, but not to him for he gave no email address but a postal address. The information necessary for starting a claim is set out in rule 1, which provides by rule 1(4) that the claimant's name and address must be provided, subject to national security and restricted reporting orders. It did not contain what is described as "relevant information". The defect was noted by the Assistant Secretary in the Employment Tribunal. She took a decision not to accept the claim under rule 3(2)(a) because the claim must include all the relevant information. A decision not to accept a claim must be determined judicially (see rule 3(3)). A determination was made by Regional Employment Judge Potter on 19 June 2009 simply because the information did not include the Claimant's name and address. It should be noted that was the last day of the three month period and it was received by the representative of the Federation cited on the claim form on 23 June 2009, after the deadline.

1. The Claimant was concerned when he heard about this and lodged a Notice of Appeal on 30 July 2009. On the same day he sent an email to London Central Employment Tribunal providing his name and address. On 4 August 2009 the Assistant Secretary informed him that his claim had been accepted.

1. The claim lodged on 12 June was finally completed by the addition of the Claimant's name and address as provided in his email of 30 July. He was not required to submit another form, it was the supply of those details which made the form acceptable to the Secretary and then of course no further requirement was imposed upon a judge. The Claimant abandoned his appeal to the Employment Appeal Tribunal. He assumed everything was all right.

1. At a CMD, however, issues were identified to be heard at a pre-hearing review under rule 18 by an Employment Judge. An issue was identified as to whether or not the original claim on 12 June 2009 was a valid claim. Submissions were made by the Claimant on the existence and purpose of rule 3(9). Rule 3(9) provides as follows:

"A decision ... not to accept a claim … shall not bind any future [Employment Judge] where any of the issues listed in paragraph (2) fall[s] to be determined later in the proceedings."

1. The Employment Judge regarded herself as bound by the ruling of the Regional Judge and could not, as she put it, use the hearing as a review. She then descended upon reasonable practicability under Employment Rights Act 1996 s 111 and decided in favour of the Claimant. It was not reasonably practicable by reason of his understanding of the state of play for him to submit his form by 19 June 2009. No issue arises as to the consequent exercise of her discretion. The claim as finally submitted on 31 July with the amendment in the email was within a reasonable period of time, some five weeks late.

1. The sole issue on appeal was whether or not the Judge erred in finding that it was not reasonably practicable for the Claimant to present his claim in time. At the opening of this appeal, Mr Pilgerstorfer's final point in his skeleton argument was developed by both Counsel since they agree that if it is a good point it will determine the case.

1. The argument is that this case does require a major decision upon whether or not a name and address should be provided. It was plainly an issue for the PHR, the Judge decided she could not go behind it, but on appeal that issue is now raised under rule 3(9). It is not a new issue for it was raised by the Claimant in person on its being drawn to his attention by the Judge. The fact that the Claimant had subsequently vouchsafed his name and address does not mean that the issue does not arise later in the proceedings. Later in the proceedings might also mean by appeal to the Employment Appeal Tribunal. There was an appeal. But if I am wrong about that, the issue plainly was before the Employment Judge to determine whether the claim on 12 June 2009 was validly presented. She was wrong to hold that the decision by the Regional Judge precluded her from opening the question again.

1. Substantial arguments are raised by Mr Pilgerstorfer in relation to Article 6 of the European Convention on Human Rights. I have myself reflected upon the use of the acceptance procedure in a judgment I gave in Coutinho v Rank Nemo (DMS) Ltd UKEAT/0315/08, where I said the following, overturning a Judge's decision not to accept a claim form having reviewed the earlier authorities:

"18. I have stressed that in the two EAT cases and what appear to be all six of the cases in Rhys-Harper there were full hearings where facts were determined. The stage reached in the present case is that the claim has not been accepted. The Respondent has not been called upon to provide a response and no direction is given for any preliminary point to be heard or for the onward transmission of a case to a full hearing.

19. I would call this a proto-strikeout without elementary safeguards. Nevertheless the approach to strikeout at a rule 18 PHR may be instructive. I take it to be the following: the overriding objective requires that a case which the Tribunal has no power to deal with can be rejected under rule 3. That means taking at face value what the Claimant says in his claim form."

That Judgment was upheld by the Court of Appeal: Coutinho v Rank Nemo (DMS) Ltd & Others [2009] ICR 1296, Mummery LJ giving the judgment with which Rix and Moses LJJ agreed.

1. I also had the opportunity to discuss the pre-acceptance protocol in Chowles t/a Granary Pine v West UKEAT/0473/08, and reference should be made there for the description of the procedure.

1. Why then is there a specific exemption in rule 3(9)? Mr Pilgerstorfer provides the correct answer. It is that elementary observance of human rights requires some sort of determination with an opportunity for input by a Claimant. What might be a fixed decision by an administrator, then by a judge, may be reconsidered by another judge at a hearing. In my view this case is a very good example of the underlying safeguards. The Claimant was anxious to explain to the Tribunal why it is he could not comply with the requirement to give his name and address. It is in order to ventilate issues, such as the one in this case, that what would seem to be a closed decision can be reopened by a Judge at a PHR. Indeed it was intended to be since it was an item on the agenda.

1. So the Employment Judge was wrong to hold that by rule 3(9).she could not look at the matter afresh. What then is the outcome? Very sensibly, Mr Cheetham accepts that the Judge's view is plain, there is no need to send it back to her. She made her decision in any event in favour of the Claimant. He accepts, correctly in my judgment, that the only outcome had she realised it was open to her under rule 3(9) was to rule that the form was valid when it was presented in time on 12 June 2009.

1. With due respect to both of the detailed arguments in writing which have been presented to me, it is not necessary for me to descend into them and I hold that the decision of the Judge was unarguably right notwithstanding her misdirection against the Claimant on rule 3(9).