Appeal No. EAT/1002/02/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR P M SMITH
PROFESSOR P D WICKENS OBE

MR R CUTLER	APPELLANT

THE HOME OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS C WEIR
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme

JUDGE J McMULLEN QC

1.	This is an appeal against the decision of an Employment Tribunal sitting at London South, Mr A Snelson, Chairman with Mrs Campbell and Mr Jinkinson.  The applicant did not appear and was not represented.  The Respondent was represented by Counsel.  The decision was promulgated on 4 September 2002 with Extended Reasons.  

2.	The Applicant is in Australia.  He has not appeared today but he has enlisted the services of Ms Weir appearing under the ELAAS Scheme.  She has offered to assist us with any matters arising from the representations made by the Applicant in writing and from his Notice of Appeal. The Applicant had made a number of claims which the Tribunal distilled as being for breach of contract, unfair dismissal and redundancy payment.  The issue for the Tribunal was to determine whether the claims were brought in time.  The Tribunal correctly addressed itself to section 111(2) of the Employment Rights Act 1996 and to Article 7 of the Extension of Jurisdiction Order 1994.

3.	The Tribunal decided that those were the relevant provisions as this was not a claim for a statutory redundancy payment.  The time limit on those relevant claims therefore is 3 months.  The Applicant was engaged by the Home Office until the termination of the relationship on 26 March 1998.  The 3 month period ran from then.  The Applicant was put on enquiry as to his rights.  He had challenged the Respondent about money paid to him within a few months of the termination.  

4.	He had the benefit of assistance from his Trade Union.  The Tribunal correctly noted that where a claim is on its face out of time it is for the Applicant to prove jurisdiction.  On that the Tribunal decided that he has signally failed to prove his case but the Tribunal further went on to hold that there was no basis to conclude that it was not reasonably practicable for him to present a claim within the primary limitation period.

5.	It decided in the alternative that it was reasonable shortly thereafter to have presented the claim. To have waited almost three years from the disposal of the Applicant’s appeal to the Civil Service Appeal Board was if found wholly unreasonable.

6.	In our judgment the appeal has no reasonable prospect of success and we will not send it to a full hearing.  

7.	The claim is properly one of breach of contract as the Tribunal determined and therefore the primary limitation in Article 7 applies.  The Applicant contends that the Tribunal discriminated against him by citing his date of birth.  That is unsustainable.  It is a question on the Originating Application to be answered by an Applicant particularly in a case where redundancy payment is claimed since age is a relevant factor in the calculation.  There was nothing wrong in the Tribunal giving the Applicant’s date of birth 1940 and adjudging that he had been a person of some experience engaged in the public service impliedly indicating that he had an understanding of his rights.  

8.	The Applicant contends on appeal that:

“Any citizen but particularly a Crown Servant who does not have benefit of either an appeal of the EU or Parliamentary Ombudsman should be able to have justice done, this is particularly so because of my strong case against the Home Office.”

It is clear that the Applicant does have rights justiciable before an Employment Tribunal on precisely the issues he seeks to raise, breach of contract, unfair dismissal, redundancy pay.  And he has rights to appeal to the EAT and onwards.

9.	The reason why he has not been allowed to present those claims is because of limitation in the United Kingdom.  Member States of the European Union are free to set limitation periods without offending the Treaties of Rome and Amsterdam or any Directive if such applied nor is it a breach of the European Convention on Human Rights Article 6(1) for a Tribunal to make a preliminary decision on limitation and therefore not to hear the claim.

10.	Those in essence are the arguments advanced by the Applicant and they are not sustained.  We therefore dismiss the appeal.