England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE EATRF 98/1055/3

COURT OF APPEAL (CIVIL DIVISION )

Royal Courts of Justice

Strand

London WC2

Thursday, 17th June 1999

B e f o r e :

LORD JUSTICE BROOKE

LORD JUSTICE MAY

LORD JUSTICE LAWS

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MS S. GLENNIE

Respondent

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INDEPENDENT MAGAZINES (UK) LIMITED

Appellant

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(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MR. N. RANDALL (instructed by Messrs Rowe & Maw, London, EC4) appeared on behalf of the Appellant/Respondent.

MR. L. GERRARD (instructed by Messrs Keene Marsland, London, E1) appeared on behalf of the Respondent/Applicant.

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J U D G M E N T

( As approved by the Court )

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Crown Copyright

LORD JUSTICE BROOKE: This is an appeal by Independent Magazines Limited from an order made by the Employment Appeal Tribunal on 2nd April 1998, when it directed that the claim by Miss Glennie, alleging unfair dismissal, should be remitted to the Industrial Tribunal to determine as a preliminary issue what was the effective date of the termination of her employment, and, accordingly, whether or not there was jurisdiction to proceed to a full hearing.

The appellants complain that the Employment Appeal Tribunal erred in law in permitting her to raise a new point of law relating to the effective date of termination on an appeal when that point had been conceded and/or not raised by her before the Industrial Tribunal, and also because the Employment Appeal Tribunal provided no reasons why they permitted the new point to be raised.

The matter arose in the following way. In her originating application to the Industrial Tribunal, which was completed by her solicitors, the applicant averred that she was employed from 19th April 1994 to 27th February 1997. Her application was received by the Industrial Tribunal on 27th May 1997, and in the first paragraph of their grounds of resistance the employers took the point that her claim was out of time because it was not brought before the end of the period of three months beginning with the effective date of termination. The Tribunal directed that this issue as to jurisdiction should be heard as a preliminary issue, and on 24th September 1997, following a hearing a month earlier when Miss Glennie was represented by a trainee solicitor, the Tribunal chairman, Mr. Bono, ruled that the Tribunal did not have jurisdiction to consider this application further. In his reasons the chairman recorded that it was not in dispute that the applicant's employment came to an end on 27th February 1997. She had consulted solicitors on 28th February. Negotiations for the settlement of her claim were conducted between the parties directly, and it was not until 20th May that she instructed her solicitors to institute proceedings for unfair dismissal. Her solicitor set about sending the application by fax to the Tribunal on Friday, 23rd May, which was the day before the Bank Holiday weekend. Unhappily, three blank pages, giving the fax details of his firm, were all that emerged from the Tribunal's fax machine that day. By an unhappy mishap, the solicitor placed the application papers in his fax machine the wrong side up. The chairman was therefore concerned only with deciding the legal consequences of this particular mishap, and there has been no challenge to the conclusion that he reached.

Miss Glennie appealed. The grounds of appeal were that the Industrial Tribunal had erred in law, in that, although her last day at work was 27th February 1997, this was in fact the day on which she received one month's notice. The effective date of termination was therefore 27th March 1997, and there should have been no difficulty about the Tribunal's jurisdiction. On 2nd December 1997 a division of the Employment Appeal Tirbunal, presided over by Judge Hargrove QC, granted permission to appeal with some reluctance and gave directions as to the timetable for the appeal. Judge Hargrove said that, if the Industrial Tribunal did not have a point of law raised before it, in the usual course of events, such a matter could not be raised before the Employment Appeal Tribunal at a later stage, as this would prejudice the successful party below. He continued:

"However, if an Industrial Tribunal wrongly assumes jurisdiction and I emphasise 'wrongly assumes' jurisdiction, then the point can be taken but here the Industrial Tribunal has, on the appellant's case, refused jurisdiction. There is a conflict between the decision of Talbot J in House v Emerson Electric Industrial Controls [1980] ICR 795 where Talbot J took the view that in all cases in relation to jurisdiction the court should permit such matters to come before it but Knox J in Russell v Elmdon Freight Terminal Ltd [1989] ICR 629 at 632 said that it is a question in each case whether justice requires the new point to be taken and that the blanket indication set out in the House case that any point relating to jurisdiction can be raised for the first time on appeal, is too wide."

The employers contended in their answer to the appeal that, given the common basis of fact on which the jurisdiction issue was argued before the Industrial Tribunal, Miss Glennie's appeal should fail, and that justice did not require that she should be permitted at this stage to amend her pleadings and her originating application, and raise a new point of law which she could have raised at the Industrial Tribunal hearing. She should not be allowed a second chance to raise a point of law when she was represented by skilled professionals before the Industrial Tribunal and the evidence was available for her to have raised the point then if she had chosen to do so. Issue was also joined on the contention that the effective date of termination was not in fact 27th February 1997.

On 2nd April 1998 another division of the Employment Appeal Tribunal, this time presided over by Judge Butter QC, heard Miss Glennie's appeal. It decided to apply the following principle contained in the judgment of Knox J in Russell v Elmdon Freight Terminal Limited [1989] ICR 629,633:

"There were two possible ways of arguing the case on behalf of the employee, one of which was allowed to be advanced by the appeal tribunal although it had not been advanced below. Here we have two possible ways in which the case could have been mounted by the employee when the matter came before the industrial tribunal. We have come to the conclusion that the statement to be found in House v Emerson Electric Industrial Controls is not to be construed as meaning that any and every point on jurisdiction, whether or not it may involve the adducing of further evidence, can be taken at any stage in the proceedings. For that in our view would be much too wide a principle. In each case in our view, the court has to decide on balance whether justice requires that the new point should be allowed to be taken."

Reference was also made to the later decision in Barber v Thames Television Plc [1991] ICR 253, in which Knox said at page 268:

"It does not however follow from this that all jurisdictional points must be allowed at any stage even if they involve a further hearing to establish further facts. In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken. If it appears on existing evidence that the decision appealed from is a nullity that will be a consideration of overwhelming strength. Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straightforward."

Judge Butter then continued:

"It is apparent from these cases that the fundamental test to be applied is: What is in the interests of justice in the particular circumstances of the case? Accordingly, the present Tribunal does have a discretion. It is not one which should be readily exercised in favour of an appellant raising a new point, but it remains a discretion to consider the application in the light of all the relevant circumstances.

Mr. Robertson has presented a forceful and cogent argument and has contended that it would not be right for this Tribunal today to exercise its discretion in favour of the appellant. Although we accept that there is force in the various matters which he has presented to us, each one of us feels individually and, therefore, we are unanimous in our decision, that this is a case where the interests of justice do, in truth, require that the matter be remitted to the Industrial Tribunal to determine, as a preliminary issue, what was the effective date of termination and accordingly, whether or not there is jurisdiction to proceed to a full hearing.

In these circumstances and for these reasons the appeal is allowed. The question of costs which has been mentioned in the course of the hearing is one which the Industrial Tribunal may want to consider in the exceptional circumstances of the case, namely that it is being asked to consider a matter which could, undoubtedly, have been raised before the Tribunal at the earlier hearing."

This court is placed in a difficulty because the Employment Appeal Tribunal did not give reasons for its decision. Justice has to be administered in accordance with recognizable principles. It is not sufficient simply to say, as Judge Butter did, that each member of the Tribunal felt that it was in the interests of justice that the matter be remitted to the Industrial Tribunal without explaining why they had that feeling. It may be that the Employment Appeal Tribunal was misled by what Knox J said in Barber in the passage which Judge Butter quoted. It is therefore necessary to go back to Barber to see what was being considered in that case.

The general rules about the Employment Appeal Tribunal's reluctance to allow new points of law to be argued on an appeal were originally set out by Arnold J in Kumchyk v Derby City Council [1978] ICR 116. Three sentences can be taken from his judgment in that case at page 1123 in order to understand the general ground rules which were being reasserted. He said:

"Our conclusion is... that there is nothing in the language of the statute to exclude the consideration of a new point of law but that it would in almost every conceivable case, as the National Industrial Relations Court said in G.K.N. (Cwmbran) Ltd v Lloyd [1972] I.C.R. 214, be unjust to do so. ... It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate."

In Hellyer Brothers v McLeod [1987] ICR 526, without deciding the matter, this court said that the less rigid rule stated by Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302,307 was to be preferred. Widgery LJ had referred to "the well known rule of practice that if a point is not taken in a court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party, and without recourse to a further hearing below". Slade L.J. continued in Hellyer at page 564H:

"It is to be emphasised that, in the absence of special circumstances, it would not satisfy that rule merely to show that evidence relevant to the new point was before the tribunal, or findings relevant to it made by the tribunal: it would be necessary to show that, if the matter had been properly raised before the tribunal, the evidence before the tribunal by way of evidence-in-chief or cross-examination of witnesses called would not have been significantly different and that no other additional witnesses could usefully have been called."

In House Talbot J relaxed the rigidity of the rules stated in Kumchyk in a case in which the Industrial Tribunal had held that it had no jurisdiction. Without challenging the facts found by the Industrial Tribunal, the appellants sought to rely on the Interpretation Act for the first time in their appeal in order to argue that the Industrial Tribunal had been wrong in law to decline jurisdiction. It is hardly surprising that the Employment Appeal Tribunal allowed this point of law to be argued for the first time before them. If the Industrial Tribunal was wrong in law to decline jurisdiction on the facts before it, it was clearly the duty of the Employment Appeal Tribunal to put it right. Talbot J said at page 800:

"We would wholly indorse what was said by Arnold J and what would seem to be setting out the settled and accepted practice in this appeal tribunal, and we would not seek to depart from what he said - except, in our view, that where the matter raises the question of jurisdiction, (that is to say, whether the industrial tribunal claimed jurisdiction, or refused to accept jurisdiction) it is open, even if that matter was not raised before the industrial tribunal, to argue it before the appeal tribunal. It would seem to us quite contrary to any principles of justice not so to hold."

It became clear in two later decisions of the Employment Appeal Tribunal that this wide statement needed some qualification. In both Russell and Barber the Employment Appeal Tribunal was concerned with cases in which a party had lost on a preliminary jurisdictional issue before the Industrial Tribunal and now sought to argue its case in a different way before the Employment Appeal Tribunal. In Russell v Elmdon Freight Terminal Limited [1989] ICR 629, the Industrial Tribunal had held that two companies were not associated employers since they were not companies of which a third party, directly or indirectly, held control at the date of transfer of employment and the Tribunal therefore had no jurisdiction to hear the complaint. Before the Employment Appeal Tribunal the employees sought to rely on a new point based on paragraph 17(2) of Schedule 13 to the Employment Protection Act, namely that the change of employers was due to a transfer of business, so that his employment should have been treated as continuous. Knox J said at page 632:

"This is a case on analysis where there were two ways in which the employee could satisfy the burden of proof which .... lies on him of establishing the requisite continuity of employment. He chose, no doubt for excellent reasons, to advance his case on one of those two bases. The other basis - the transfer of undertaking basis - was at least potentially one which would involve the calling of evidence. Necessarily no evidence was specifically directed to that issue before the industrial tribunal because the issue had not been raised",

and in those circumstances he set out the new statement of principle which Judge Butter quoted in his judgment.

In Barber v Thames Television Plc [1991] ICR 253, the Industrial Tribunal had considered as a preliminary issue whether there was a normal retiring age for an employee holding the position which this particular employee held and which the employee had reached at the date of dismissal. The Industrial Tribunal found that the employee had reached his normal retiring age when he was dismissed at the age of 64 and that they had no jurisdiction to hear the complaint. The employee sought on the appeal to raise a point that the normal retiring age was in fact 60. It was in those circumstances that Knox J stated the further principles, which once again were quoted by Judge Butter in his judgment in the present case. Having set out these principles, Knox J said this:

"We therefore accept that the normal retiring age is a matter which goes to jurisdiction. However the position facing the employers when the preliminary point as to jurisdiction came to be heard by the industrial tribunal was that it had all the relevant information about its own employees, their terms of employment and the practice of the employers concerning retirement. There were no doubt in principle several, or at least, two ways in which they might persuade the industrial tribunal that the employee was outside the pale erected by section 64(1)(b). They chose to try to persuade the industrial tribunal that this was because the normal retiring age was 64. This was no mere oversight by a litigant in person but an assertion made in particulars given by a litigant in response to a formal request who had the benefit of very experienced and skilled solicitors and counsel. In fact the attempt thus to persuade the industrial tribunal was successful but for reasons given earlier we are of the view that it should not have succeeded. We are unpersuaded that it would be just for the employers to have a second bite at the cherry of trying to persuade the industrial tribunal that the employee is disqualified by section 64(1)(b) of the Act by advancing evidence which was always available but was not used for what no doubt at the time seemed to be excellent reasons. We are far from satisfied that it is quite plain that the industrial tribunal has no jurisdiction. On the evidence before it we consider the opposite to have been established. We do not consider that it would be right at this stage to allow the employers to pursue the possibility (and it is no more than that) of establishing the contrary."

Knox J was wise to leave open the possibility that, in the case of an unrepresented party, justice might demand the Employment Appeal Tribunal to put right what appeared to be a glaring injustice, even though, strictly, the evidence on which the unrepresented party sought to rely would have been available before the Tribunal. However, I do not understand him to be envisaging the possibility that, when a represented party has fought and lost a jurisdictional issue on agreed facts before the Tribunal, it should then be allowed to resile from its agreement and seek a new Tribunal hearing in order to adduce evidence which would then be challenged, and invite the Tribunal to decide the question of jurisdiction all over again on new facts. The general rules laid down by Arnold J in Kumchyk, about a party not being allowed to resile from what his representative has decided to do, are surely of equal applicability here.

I must stress that this is not a case in which Miss Glennie is being deprived by procedural quirk of being allowed to rely on an obvious knock-out point. If she was to be allowed to take the new point, the way would be wide open to a contest before the Industrial Tribunal based on issues of mixed fact and law, exploring the legal effect of what happened at a disciplinary hearing on 26th February, a letter her employers wrote to her the following day and her acceptance of a month's wages without working out her period of notice. It is certainly on the cards that that inquiry might have finished up with a conclusion that her employment terminated on 27th February, the day the letter was written; in other words, on the same basis as was common ground when the jurisdictional issue was first argued. I am of the clear view that the Employment Appeal Tribunal was wrong when it decided to remit the matter back to the Industrial Tribunal. It appears to have been misled by the sentence in Knox J's judgment in Barber which suggested that it had a completely unfettered discretion to decide, on balance, whether justice required that the new point should be allowed to be taken. In my judgment, on established principles it was clearly wrong to allow this new point to be taken on appeal after the matter had been determined on a preliminary jurisdictional issue on the basis on which the applicant, represented by solicitors, had placed her application before the Tribunal, and for those reasons I would allow this appeal.

LORD JUSTICE MAY: I agree.

LORD JUSTICE LAWS: I also agree. The Employment Appeal Tribunal possesses a discretion, which must be exercised in accordance with established principles, to allow a new point to be raised before it for the first time. It is a general principle of the law that it is a party's duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 is, with great deference, consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances, as Robert Walker LJ held at page 44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below, that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual inquiry. There is a public interest, beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them. I do not consider that this case falls within that category, even if the facts required to be ascertained in order to determine the date of the termination of the applicant's employment were now capable of agreement. On the facts agreed before the Industrial Tribunal, that Tribunal was correct to hold that it lacked jurisdiction. It was therefore necessary to show exceptional circumstances if the Employment Appeal Tribunal was properly to decide to allow the new point to be taken. The Employment Appeal Tribunal identified no such exceptional circumstances. In my judgment, there are none.

Order: Appeal allowed with costs; legal aid taxation of the respondent's costs.