Capek v Lincolnshire County Council

An employment tribunal’s contract jurisdiction under Articles 3 and 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994 arises only where employment has terminated. Where there is an effective date of termination, the three-month period runs from that date and excludes complaints presented before it, even if the claims were outstanding at termination. A complaint may nevertheless fall within unauthorised-deduction jurisdiction if, in substance, it alleges payment of less than wages properly payable. Jurisdiction depends on substance, not the label given by an unrepresented claimant.

Mr Capek was dismissed by Lincolnshire County Council, with the effective date of termination ultimately fixed as 7 July 1995. Before that date he presented complaints including unfair dismissal and alleged breaches of his employment contract. The Employment Tribunal held that the contract complaints were premature and outside its jurisdiction. The Employment Appeal Tribunal allowed his appeal on that issue and remitted the claims. The Council appealed. Mr Capek cross-appealed on time-extension and unauthorised-deduction issues. The central questions were whether the tribunal could entertain contract claims presented before termination and whether the claims might in substance be complaints concerning deductions from wages.

The Court of Appeal unanimously agreed with the judgment of Mummery LJ, with Laws LJ and Pill LJ concurring.

1. Contract jurisdiction. Articles 3(c) and 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994 operate cumulatively. Article 3(c) requires employment to have terminated and the claim to have arisen or remained outstanding at termination. Although the claims were outstanding when Mr Capek’s employment ended, Article 7(a) separately prohibited the tribunal from entertaining complaints presented before the effective date of termination.
2. The expression within the period of could in some contexts mean before the expiry of a period. In this Order, however, it identified a period between a fixed start date, the effective date of termination, and a fixed end date three months later. Article 8(c)(i), concerning employer claims, reinforced that construction. The result was unsatisfactory because it could require separate court proceedings, but the language of the Order could not be avoided.
3. The TUPE authorities, BIFU v Barclays Bank plc [1987] ICR 495 and South Durham Health Authority v UNISON [1995] ICR 495, were distinguishable. Their consultation provisions differed in language, context and purpose. Consultation complaints could arise before a transfer, whereas termination was an ingredient of the jurisdiction under the 1994 Order.
4. Article 7(b) did not apply because an effective date of termination had been found. The fact that the date was fixed only when the internal appeal ended did not make Article 7(b) applicable.
5. A chairman sitting without lay members could determine an application to extend time. It was reasonably practicable for Mr Capek to present his contract complaints within three months of 7 July 1995, so refusal to extend time involved no error of law.
6. Unauthorised deductions. Under the Wages Act 1986 and Part II of the Employment Rights Act 1996, determining wages properly payable may require the tribunal to decide contractual rights. That jurisdiction was independent of the 1994 Order. A complaint was not outside jurisdiction merely because the claimant labelled it a breach-of-contract claim. The unauthorised-deduction issue had not been properly investigated and was remitted to the Employment Tribunal.

The Council’s appeal succeeded on the 1994 Order issue. Mr Capek’s cross-appeal was allowed on the unauthorised-deduction issue.

1. Court of Appeal (Civil Division): In [2000] EWCA Civ 181, allowed the Council’s appeal on the contract-jurisdiction issue and allowed Mr Capek’s cross-appeal on the unauthorised-deduction issue, remitting that issue.
2. Employment Appeal Tribunal: Allowed Mr Capek’s appeal in part, holding that the Employment Tribunal had jurisdiction over the contract claims presented before termination, and remitted them for consideration on their merits.
3. Employment Tribunal: Held that the contract complaints presented before the effective date of termination were premature and outside its jurisdiction. It also refused extensions of time.