Fadipe v Reed Nursing Personnel
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE BUXTON,LORD JUSTICE LONGMORE |
| Judgment Date | 04 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1885,[2001] EWCA Civ 251 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2000/3835 |
| Date | 04 December 2001 |
[2001] EWCA Civ 1885
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Mummery
Lord Justice Buxton
Lord Justice Longmore
A1/2000/3835
THE APPELLANT appeared on his own behalf
MISS L SEYMOUR (Instructed by Reed Executive Plc, London SW1E 5NE) appeared on behalf of the Respondent
This is an appeal from the decision of the Employment Appeal Tribunal on 20th November 2000 when, at a preliminary hearing, the Appeal Tribunal dismissed an appeal by Mr Fadipe from the decision of the Employment Tribunal. The decision of the Employment Tribunal in question followed a hearing at London (North) on 17th April 2000 at which Mr Fadipe appeared in person and Miss Seymour, counsel, appeared for the respondent, Reed Nursing Personnel.
The Employment Tribunal, in their extended reasons sent to the parties on 5th May 2000, unanimously decided to dismiss applications by Mr Fadipe. His applications were contained in the form IT1 presented by him on 17th November 1999. The complaints he made were: first, that Reed Nursing Personnel had unlawfully provided an unsatisfactory reference; and secondly, that they had unfairly dismissed him from his position as an auxiliary nurse (nursing assistant) on 4th June 1999, his employment having commenced in January that year.
The background to the complaint is set out in box 11 of the IT1. I cannot improve on simply reading out the complaint that Mr Fadipe made:
"1. On 13th July 1999, I was offered employment as a day care assistant with North Westminster Care Services, which is under the Social Services Department of the City of Westminster Council, subject to the receipt of satisfactory references. But on 7th September 1999 I was informed in writing that one of the references received was `unsatisfactory to the council'. This unsatisfactory reference upon further query turned out to be the one provided by Reed Nursing Personnel, even though my work was satisfactory, and both them and their clients never had any cause to complain about my work."
I pause there to mention that that paragraph 1 clearly relates to the first complaint of unlawful provision of an unsatisfactory reference.
Then there is a second paragraph number 2, which reads:
"On 4th June 1999, I received a letter unfairly terminating my work with Reed Nursing Personnel, because I had written a letter to the Chief Executive of Reed Personnel Services Plc, dated 4th May 1999, in which I complained of being maltreated, harassed and persecuted. In this said letter of unfair dismissal, it was claimed that the clients of Reed Nursing Personnel had instructed Reed Nursing Personnel not to put me forward for further assignments with them. This was totally false, and was just a framed up excuse to unfairly dismiss me. At the time of occurrence, I did seek help from a solicitor at Paddington Law Centre, but she was extremely unhelpful, and informed me in a letter dated 10th June 1999, that it will be difficult to take legal proceedings against Reed Nursing Personnel, and advised me to look for another job."
There was a pre-hearing review of Mr Fadipe's claim held at London (North) on 3rd November 2000. It was ordered, in consequence of that review, that the case would be listed for a full hearing. The question to be determined was whether the claims were brought within time and whether there should be an extension of time.
The decision of the Tribunal after the full hearing on 17th April 2000 was that Mr Fadipe's application in respect of unfair dismissal was out of time and should be dismissed. The findings of fact in relation to that are set out in paragraphs 3 to 7 of the extended reasons. It was explained that Mr Fadipe had other difficulties with his claim. I read from paragraph 3 of the extended reasons:
"The obvious objection to Mr Fadipe's claim [that is the unfair dismissal claim] is that he did not have the necessary 12 months of continuous employment which is a requisite of Section 108 of the Employment Rights Act 1996. There are however a number of exceptions to that 12 month qualifying period and Mr Fadipe has stated that he is basing his claim on the fact that he asserted a statutory right and in the alternative or additionally that this was a health and safety case and that he was unfairly dismissed for one of those reasons and under Section 104 and 100 of the Employment Rights Act 1996, no minimum period of employment is required. If the Tribunal finds that Mr Fadipe was dismissed for a health and safety reason or for the assertion of a statutory right, then the dismissal is automatically unfair. However the right to claim unfair dismissal must be exercised within 3 months of the effective date of termination of the employment —Section 111 Employment Rights Act 1996. Mr Fadipe was notified of the termination of his services with the Respondents on 4 June 1999 but he did not present his Originating Application to the Tribunal until 17 November 1999, so he was more than two months out of time."
The Tribunal then dealt with the evidence Mr Fadipe had himself given that he had consulted solicitors both before and after the termination of his employment. The Tribunal held that the application was out of time. They refused to extend the three-month period under section 111 of the Employment Rights Act.
In exercising the discretion to refuse an extension, the Tribunal stated in paragraph 7 that Mr Fadipe had advanced to them an argument that it was just and equitable to extend the time, and that the refusal to provide a satisfactory reference was a "continuing act".
The Tribunal pointed out that the concepts of just and equitable and continuing act, though relevant to claims under the Discrimination Acts, are not relevant to claims of unfair dismissal under the Employment Rights Act, and the Tribunal did not have discretion to extend the period as Mr Fadipe would like them to. The test was whether it was reasonably practicable for him to have presented his claim within the three months. The Tribunal held that it was and therefore it was not a case for extending the time.
As regards that part of the case, Mr Fadipe failed in his appeal to the Employment Appeal Tribunal. On his application for permission to appeal I gave a reasoned judgment explaining why he had no real prospect of success in appealing against the dismissal of the unfair dismissal claim on the reasoning of the Employment Tribunal.
This appeal is therefore solely concerned with the first complaint in the IT1 relating to the unfavourable reference. The conclusions of the Tribunal in respect of that claim were that the claim was not within the jurisdiction of the Tribunal. The reasons for their conclusion are stated in paragraph 8 of the decision. They said this:
"With regard to the claim of provision of an unsatisfactory reference, that by itself is not a claim for which this Tribunal has jurisdiction. There is no absolute right for an employee or ex-employee to demand a reference and there is no absolute obligation on an employer to provide a reference. If he does provide a reference then it must be fair, truthful and accurate and if it not, the employee may have remedies against the employer or former employer at common law but not before this Tribunal. The only possible exception to that statement is in relation to the case which Mr Fadipe relies upon namely Coote v Granada Hospitality Ltd [1998] IRLR 656 which is a case which came before the European Court of Justice. In that case the Court ruled that an employee [sic] cannot refuse to grant a reference where that is seen as victimisation following a complaint of sex discrimination."
The Tribunal said there was no such claim in this case, under either of the Race or Sex Discrimination Acts or under the Disability Discrimination Act. They said that in those circumstances they could see no basis on which he could bring his claim for an unsatisfactory reference within the ambit of the Tribunal. So that claim was rejected.
Before I leave that decision, it is important to note two points. First, there was no time-bar objection to Mr Fadipe bringing such a claim if the Tribunal had jurisdiction to entertain it, since the date when the detriment, which Mr Fadipe claims he suffered, did not occur before 7th September 1999, when the City of Westminster informed him that they were not giving him the job, which had been offered subject to satisfactory references, because they had received an unsatisfactory reference. That was a letter from Reed Nursing Personnel stating that Mr Fadipe had been registered with them as an auxiliary nurse, that they had no complaints about his standard of work, but would not be prepared to offer him any future assignments. As the claim was presented on 17th November that was in the requisite period for making a complaint from the date of the detriment.
The second point, however, which I would note from paragraph 8 of the extended reasons, is that there is no reference at all in the claim for an unsatisfactory reference to any health or safety consideration. That had been dealt with solely in the earlier paragraphs in relation to the claim for unfair dismissal and whether the time for bringing such a claim should be extended.
In order to succeed on an appeal from an Employment Tribunal, it has to be shown that there has been an error of law in the decision of the Tribunal. The Employment Appeal Tribunal, in the judgment given on behalf of the Tribunal by His...
To continue reading
Request your trial
-
David Smith v Carillion (JM) Ltd Secretary of State for Business, Innovation and Skills (Intervener)
...employer should be unlawful or not depending upon whether it took place before or after dismissal. Prior to that decision, in Fadipe v Reed Nursing Personnel [2001] EWCA Civ 1885; [2005] ICR 1760, the Court of Appeal had held that section 44 of the 1996 Act did not extend to ex-employees a......
-
Fiona Tiplady v City of Bradford Metropolitan District Council
...she had suffered various detriments after the termination of her employment. The ET, following the decision of this Court in Fadipe v Reed Nursing Personnel [2001] EWCA Civ 1885, held that it had no jurisdiction to entertain a claim about a detriment which had occurred after the employment......
-
Woodward v Abbey National Plc
...Woodward, to rule that we are not bound by a previous decision of this Court given in Fadipe v Reed Nursing Personnel [2001] EWCA 1885, [2005] ICR 1760 because, although it was not expressly overruled, it cannot stand with the decision of the House of Lords in Rhys-Harper v Relaxion Group P......
- Onyango v Berkeley (trading as Berkeley Solicitors)