Appeal No.	 EAT/248/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 June 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS R CHAPMAN
MR P DAWSON OBE

MRS M LANGLEY-DI GIUSEPPE	APPELLANT

YAMAICHI INTERNATIONAL LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR ANDREW GLENNIE
(of Counsel)
Instructed By:
Messrs Finers
(Solicitors)
179 Great Portland Street
London
W1N 6LS

MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether Mrs Langley-di Giuseppe has an arguable point of law in an appeal which she wishes to make against the unanimous decision of an Employment Tribunal which dismissed her various applications, following a hearing on 16,17 and 18 November 1998.  

1	The Tribunal’s decision is contained in extended reason form, which runs to 39 pages.  The reason why the decision is so lengthy is because the Employment Tribunal was having to deal with 57 applicants who had brought claims against their former employers Yamaichi International Europe Ltd which had gone bust. 

2	The Applicant’s claims were for unauthorised deduction of wages, breach of contract, unfair dismissal, and unlawful discrimination on grounds of race.  The structure of the Tribunal’s decision is that it deals first of all with the orders made in relation to each of the applicants with which it was concerned, and then deals with the facts common to all the applicants, and then goes back to dealing with the cases on an individual basis.  Essentially the findings of the Employment Tribunal were to the effect that this Appellant was out of time in relation to all her complaints.  In relation to those in respect of unauthorised deduction of wages, breach of contract and unfair dismissal, the time limit test is three months on the basis of reasonable practicability.  We illuminate the argument before us by reference to section 111 (2)(b) of The Employments Right Act 1996, which provides that an Industrial Tribunal shall not consider a complaint unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination or it will be within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.  

3	The essence of the claim that is made in relation to the three heads which I just identified, relates to the payment of bonuses which are due.  In reliance on an assurance which had been given to her, it is the Appellant’s case that she deferred taking proceedings.  She only commenced proceedings when she realised that the assurance she had been given was not going to be honoured and she acted within a relatively short period of time thereafter, but more than 21 days.  

4	The Tribunal deal with this at paragraphs 11 to 14 of their decision and their conclusion was that is was reasonably practicable for this Appellant to have presented her complaint within the three month period.  The objection that is taken is that the Tribunal have not elucidated how they have arrived at that conclusion.  They have set out the matters which were urged on them, namely that she was misled by the expressed assurance and only discovered that that assurance was broken when she discovered that some people had received bonuses but she had not, and indicated that those were factors which they had taken into account.  But they do not indicate how they have taken them into account, or the basis on which they had concluded that it was in fact reasonably practicable for her to make a complaint in relation to a matter which she did not consider would give rise to a cause of action or into the assurance which had been provided to her.  We regard that point as arguable.  

5	The second time limit point relates to what is the short-term purposes convenient to be described as the just and equitable point.  The Tribunal deal with it essentially at paragraph 18 of their decision, where they appear to have taken the view that all the 57 applicants should be given a period of 21 days after discovery that they had not been paid in accordance with the assurances which had been given to them, that if they were within the 21 day period whenever they discovered the wrong they should be permitted to proceed.  If they were not within the 21 day period, then they should not be entitled to proceed.  The result of the application of that approach was, as has been pointed out, on the face of the decision leading to this conclusion, that one applicant, Mrs Keam, who presented her complaint well after this particular Appellant, was held to be within time, whereas this Appellant was not.  

6	It is argued before us that the statute on just and equitable requires the court to take into account all the circumstances of each individual case.  The very essence of the just and equitable provision requires that the justice and equity of extending time or, not extending time, must be weighed by the Tribunal in each individual case.  Thus it is argued, that the Employment Tribunal has adopted a formulaic approach to a matter which requires the general exercise of a discretion, and has failed to follow the guidance given to them by the Employment Appeal Tribunal in the case of British Coal Corporation v. Keeble (1997) IRCR 336, which suggested that the discretion which the Tribunal has, should be exercised on the basis of the balance of injustice; what is the injustice caused to the Appellant by not extending time against the injustice caused to the Respondent if time where extended.  We regard those submissions as arguable also.

7	Of the 57, or however many it was, this is the only Applicant to have lodged a Notice of Appeal.  We are not concerned with the other cases. The estimate of time therefore, for dealing with these matters at a full hearing, will be reduced from the one day which both the Appellant and Respondents have indicated in their PHD forms.  We consider that it can be dealt with within 1½ hours.  This should be listed as a Category B case, that is, between being very important and being legally less important, and no Notes of Evidence are required and I make an order to that effect.