Basingstoke Press Ltd v Clarke (in Administration)

EAT: Judge McMullen QC, Mr D Norman and Mr P A L Parker: 9 January 2007

On 7 October 2005 the claimant raised a grievance with his employers in respect of his demotion. The dispute was not resolved and he resigned. On 3 November he submitted a claim to the employment tribunal via the internet, claiming that he had been unfairly constructively dismissed. The claim was received by the tribunal at 7 pm that day. Due to an oversight the employers failed to enter a response and, although they subsequently indicated that they wished to defend the claim, they were barred from taking part in the proceedings by reason of rule 9 of the Employment Tribunals Rules of Procedure 2004. A tribunal chairman, sitting alone pursuant to section 4 of the Employment Tribunals Act 1996, upheld the claim and awarded compensation. The chairman refused an application by the employers for a review made on the ground that the 28-day period between presentation of the grievance and the claim, prescribed by section 32 of the Employment Act 2002, had not elapsed.

The employers appealed, also raising the issue of whether the chairman had been entitled to sit alone.

The Employment Appeal Tribunal held:
(1) Under section 4(3)(g) of the Employment Tribunals Act 1996 a chairman was justified in sitting alone in proceedings in which the person against whom the proceedings were brought was not contesting the case. While the employers wanted the opportunity to defend the claim, contesting came from the right to resist and did not include a situation where a party had been ordered to take no part in the proceedings. Accordingly, the tribunal chairman did not lack jurisdiction by sitting alone.
(2) The Civil Procedure Rules provided guidance on the counting of time which was to be used by tribunals where there was no specific provision in the Employment Tribunals Rules of Procedure 2004. CPR para 2.8.2 stated that a period of time expressed as a number of days should be computed as "clear" days, which meant that in computing the number of days the day on which the period began and, if the end of the period was defined by reference to an event, also the day on which that event occurred were not included. Accordingly, since only 26 clear days had elapsed between the presentation of the claimant's grievance on 7 October and his internet application on 3 November, under section 32(3)(a) of the Employment Act 2002, the tribunal had no jurisdiction to hear the complaint.

The appeal was allowed.

Appearances: Alistair Hodge (Phillips, Basingstoke) for the employers; the claimant in person.