Capek v Lincolnshire County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY |
| Judgment Date | 26 May 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0526-12 |
| Docket Number | Case No: PTA/2000/5356/AI |
| Court | Court of Appeal (Civil Division) |
| Date | 26 May 2000 |
[2000] EWCA Civ J0526-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Mummery and
Lord Justice Laws
Case No: PTA/2000/5356/AI
Mr RA Capek �The Appellant in person
Mr N Dean (instructed by The Chief Solicitor, Lincolnshire County Council for the Respondent)
This is an appeal by the Lincolnshire County Council (the Council) from the decision of the Employment Appeal Tribunal dated 17 December 1998, allowing in part an appeal by Mr Capek. His principal appeal was from the ruling of the Employment Tribunal that he had failed to show that the tribunal had jurisdiction to entertain his claims against the Council for breach of his contract of employment. The rest of his appeals were dismissed. The appeal tribunal directed that his breach of contract claims be remitted to a fresh tribunal for a hearing on their merits.
The critical point is whether the combined effect of Articles 3 and 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994 ( SI 1994/1623) (the 1994 Order) is to confer on an employment tribunal jurisdiction to entertain a complaint of breach of contract presented by an employee to a tribunal before the effective date of termination of the contract giving rise to the complaint. The tribunal held, in their extended reasons sent to the parties on 10 October 1996, that there was no jurisdiction. The appeal tribunal disagreed. Permission to appeal to this court was granted on 19 April 1999.
Background to the 1994 Order
The 1994 Order was made under section 131 of the Employment Protection (Consolidation) Act 1978 and now has effect as if made under section 3 of the Employment Tribunals Act 1996.
The 1994 Order followed on the decision of the House of Lords in Delaney v. Staples [1992] 1 AC 687 in which it was held that the industrial tribunal had no jurisdiction to adjudicate on a claim for payment in lieu of notice, as such a payment was not within the definition of "wages" in the Wages Act 1986 and the tribunal had no general jurisdiction over claims for breach of a contract of employment. Lord Browne-Wilkinson said at p. 697H
"This conclusion produces an untidy and unsatisfactory result. On any dismissal, the summary procedure of the industrial tribunal under the [1986] Act will be exercisable in relation to unpaid wages (in the ordinary sense), holiday pay, commission, maternity leave etc. but claims relating to the failure to give proper notice will continue to be brought in the county court. The employee is therefore forced either to bring two sets of proceedings or to proceed wholly in the county court on a claim for damages. To be forced to bring two sets of proceedings for small sums of money in relation to one dismissal is wasteful of time and money. It brings the law into disrepute and is not calculated to ensure that employees recover their full legal entitlement when wrongfully dismissed. The position is capable of remedy by an order under section 131 of the Employment Protection (Consolidation) Act 1978 which enables the minister to confer jurisdiction on industrial tribunals to deal with claims for breach of contract. As the judgment of Lord Donaldson of Lymington M.R. in the present case shows, the courts have been suggesting that this power be exercised for nearly 20 years, so far without success��I believe that all your Lordships are of the view that the present unsatisfactory position calls for fresh consideration by the minister."
The unsatisfactory state of affairs described by Lord Browne-Wilkinson not only affected claims under the 1986 Act. The same problem of dual proceedings arose when a dismissal from employment giving rise to a claim for unfair dismissal, which was within the exclusive jurisdiction of the tribunal, also gave rise to a claim for wrongful dismissal, which could only be brought in the county court or, in the case of larger claims, in the High Court, because the tribunal had lacked general jurisdiction over breaches of contracts of employment.
The 1994 Order was made to remedy this state of affairs. As Keene J said in Sarker v. South Tees Acute Hospitals NHS Trust [1998] ICR 673 at 680
"�[the 1994] Order extending the jurisdiction of industrial tribunals is intended to avoid the situation where an employee (or for that matter an employer) is forced to use both a tribunal and a court of law to have all his or her claims determined. In simple terms,the purpose of the extension of jurisdiction was to enable an industrial tribunal to deal with both a claim for unfair dismissal (which we take as an obvious example) and a claim for damages for breach of the same contract of employment. Two sets of proceedings are thus avoided."
Terms of the 1994 Order
Article 3 provides that
"Proceedings may be brought before an industrial tribunal in respect of a claim by an employee for the recovery of damages �.if
(a)��
(b)�.
(c) the claim arises or is outstanding on the termination of the employee's employment."
The tribunal thus has jurisdiction over claims for breach of contract in cases where there is a termination of the employment.
Article 7 is concerned with time limits and prohibits the tribunal from entertaining complaints in respect of certain contract claims. It provides that
" An industrial tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented-
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or
(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable."
THE FACTS
From 1 January 1989 Mr Capek was employed as an Emergency Duty Social Worker. After an incident at the end of April 1994 he was suspended. The Council's disciplinary procedure was implemented. Following a disciplinary hearing on 10 October 1994 he was dismissed with e ffect from 2 January 1995. He appealed to a panel of Councillors against the decision to dismiss him. That appeal was not determined until July 1995. The effective date of termination of his employment was altered to 7 July 1995.
In the meantime Mr Capek, who has acted in person throughout, presented three applications to the employment tribunal on 9, 24 and 25 November 1994 making complaints of unfair dismissal, of failure to provide written reasons for his dismissal and of various breaches of contract by the Council in respect of his employment.
The Council accepts that the tribunal had exclusive jurisdiction to determine the unfair dismissal complaint presented between the giving of notice and the effective date of termination of his employment. That situation was expressly covered by section 67 (4) Employment Protection (Consolidation) Act 1978 since re-enacted in section 111 (3) Employment Rights Act 1996. The Council contends, however, that the tribunal has no jurisdiction to determine the breach of contract complaints as they were not presented "within the period of three months beginning with the effective date of termination of the contract giving rise to the claim" : Article 7(a) of the 1994 Order. The complaints were premature as they were presented before the effective date of termination and not within the specified period beginning with that date. Such claims could only be brought by Mr Capek in the County Court.
The complaints are of failure to pay full salary during his period of suspension from 26 April 1994 including his notice period from 15 October 1994 (paragraph 3 in application of 25 November 1994) ; arrears of salary due in respect of management failure to conduct proper re-grading evaluation or assessment in December 1991 in accordance with agreed procedures and fair principles and compensation for loss of earnings in the period from 1 October 1990 (paragraph 5(i) of application of 14 November 1994); arrears of telephone allowances in the period from May 1990; and failure to pay " miscellaneous expenses" in the period from 1 June 1994 to 30 September 1994. During the hearing in this court Mr Capek accepted that the two last items are not recoverable under the Wages Act provisions now contained in the Employment Rights Act 1996.
His internal appeal was heard and his dismissal confirmed on 7 July 1995. It was, however, agreed by the Council that Mr Capek should be re-engaged in an alternative social work capacity.
Mr Capek pressed on with his complaints against the Council and, indeed, presented further applications to the tribunal on 24 July 1995 and 18 June 1996.
The main issue on this appeal is whether the "contract claims" made in the complaints presented in November 1994 are outside the jurisdiction conferred on the employment tribunal by the 1994 Order on the ground that they were made before, instead of within the three month period beginning with, 7 July 1995.
In argument Mr Dean, on behalf of the Council, agreed that the effect of his construction of Article 7 was that, for example, a breach of contract complaint presented by Mr Capek on 8 July 1995 would have been within the jurisdiction of the tribunal, but...
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