England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Employment Appeal Tribunal

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 October 1999

MR JUSTICE MOORE-BICK: This is an appeal by Mrs Anosiya Aparau against an order of the Employment Appeal Tribunal, His Honour Judge Peter Clark presiding, made on 12^th March 1998 by which it dismissed her appeal against the decision of an industrial tribunal on 12^th May 1997 that her dismissal by the respondents, Iceland Frozen Foods Ltd, was not unfair.

The background to this dispute goes back to May 1987 when Mrs Aparau became employed by Bejam Group as a cashier at their store in Wood Green. The terms of her contract of employment were contained in a document dated 22^nd May 1987. The precise terms of that contract do not matter for present purposes; it is sufficient to say that it has always been common ground that it did not stipulate any specific place of work and contained no mobility clause, that is, no provision giving Bejam the right to require her to change her place of work. In fact, however, following her promotion Mrs Aparau moved to Bejam's store in Whetstone where she worked for about six months before returning to Wood Green as check out manageress in June 1988. In January 1989 Bejam's business was acquired by Iceland which retained Mrs Aparau in its employment at Wood Green.

Following the acquisition of Bejam's business Iceland issued new written contracts of employment to all its employees. The new terms contained a provision to the effect that

" . . . . . you will normally be located at ....................... but you may be required to move to a different location at any time"

The new contracts were sent out in duplicate to all employees who were asked to sign and return one copy to confirm that they agreed to their terms. It was common ground when the matter first came before the industrial tribunal in January 1993 that Mrs Aparau had not signed and returned the duplicate, but the tribunal found that she had received the document and had read it in detail. Thereafter she carried on working for Iceland until July 1990.

Unfortunately, Mrs. Aparau did not get on well with the manager of the Wood Green store, Mr. McKechnie. It is unnecessary to go into the details of their various disagreements, but in due course the industrial tribunal found that

"there was an irreconcilable breakdown in the working relationship between [them] and it was concluded that the only practical solution would be to transfer one or other of them to a different branch".

There was a vacancy for the position occupied by Mrs Aparau at the East Finchley store and so on 11^th July 1990 she was asked to agree to being transferred to East Finchley. Regrettably, however, before she had finally come to a decision Mrs Aparau had another disagreement with Mr. McKechnie and the Group Personnel Controller, Mrs Bather, decided that the matter could not wait any longer for a solution. Accordingly, on Thursday 19^th July she sent a facsimile letter to Mrs Aparau instructing her to transfer to the East Finchley store with effect from the next day, Friday 20^th. The journey to East Finchley would have taken her an extra twenty minutes travel by public transport each day and in addition Mrs Aparau had a young child of school age. The change in her place of work was likely, therefore, to interfere with her domestic arrangements, but since she did not receive the letter notifying her of the change until about 8:45 in the evening, she was for practical purposes given little opportunity to make any necessary preparations. Mrs Aparau was unwilling to move to East Finchley. She responded by letter on 20^th July terminating her employment with immediate effect on the grounds that Iceland did not have the right to transfer her from Wood Green without her consent. She regarded herself as having been constructively dismissed and in due course made a claim for compensation for wrongful dismissal.

Mrs Aparau's case came before the industrial tribunal on 28^th January 1993. Iceland's notice of appearance in form IT3 indicates that it took its stand on the question whether Mrs Aparau had been dismissed. It did not indicate that it intended to put forward grounds which would justify her dismissal, if that had indeed occurred, and there is nothing in the very full reasons given by the industrial tribunal for its decision which suggests that Iceland had sought to place any reliance on section 57 of the Employment Protection (Consolidation) Act 1978. These are the statutory provisions governing the fairness of a dismissal which are now reproduced in section 98 of the Employment Rights Act 1996.

In the event the tribunal dismissed Mrs. Aparau's claim. Having found the facts as I have summarised them, they went on to find that she had worked for Iceland for more than twelve months after having become aware of the terms of the new contract without making any formal objection. Had she voiced any objection she would have been given the option of accepting the new terms or leaving Iceland's employment. Having continued in employment with full knowledge of the terms being offered by Iceland the tribunal held that she had accepted the new contract "by performance", in other words that there was a variation of her contract of employment by conduct. As a result, by July 1990 her contract contained an express mobility clause and the instruction to transfer to East Finchley was not therefore unlawful.

These conclusions were sufficient for the tribunal's decision to dismiss Mrs Aparau's claim, but in fact it went on to consider what the position would have been if, contrary to its primary conclusion, she had not accepted Iceland's new terms and her contract did not include an express mobility clause. The tribunal found that it is usual in employment of this kind for employees to agree to work at branches within a reasonable travelling distance of their homes. In this case the tribunal noted that Mrs Aparau had previously agreed to work for a time at Whetstone which was a great deal further from her home than East Finchley. Having considered the decision in Courtaulds Northern Spinning Ltd v Sibson [1988] ICR 451 in which this court held that where a contract of employment is silent as to the employee's place of work and the employer's right to change it, it may be necessary in order to give business efficacy to the contract to imply a term giving the employer a right to transfer the employee to a different place of work within a reasonable distance of his home, the tribunal held that a term of this kind was to be implied into Mrs. Aparau's original contract with Bejam, and thus into her contract with Iceland. On this basis it held that it was a term of her contract that she could be required to work at any of Iceland's stores within reasonable daily reach of her home. East Finchley fell within that description and therefore for this reason also her claim failed.

Finally the tribunal considered whether, even if the instruction to transfer did constitute a breach of Mrs Aparau's contract, it was of such seriousness as to go to the root of the contract and so justify her in treating herself as constructively dismissed. It held that in the circumstances as they then stood either Mrs Aparau or Mr. McKechnie had to be moved from Wood Green immediately or disciplinary proceedings had to be instituted in which one or other of them risked dismissal. A job was available for Mrs Aparau at East Finchley and Mrs Bather had satisfied herself that the transfer would cause no known hardship to Mrs Aparau. The tribunal held that the direction for compulsory transfer on 19^th July was the only practicable way of solving the impasse which had developed and did not constitute conduct which was a significant breach going to the root of the contract. Nor was it sufficient to demonstrate that the respondents no longer intended to be bound by an essential term of the contract. Accordingly, for this reason as well her claim failed.

Mrs Aparau appealed against the decision of the tribunal and her appeal came before the Employment Appeal Tribunal on 9^th October 1995, His Honour Judge Hicks Q.C. presiding. The Appeal Tribunal held that the industrial tribunal's decision that Mrs Aparau had not been constructively dismissed could not be sustained on any of the tribunal's three grounds. As to the first ground, the tribunal had misdirected itself in law which vitiated its conclusion. As to the second, the Appeal Tribunal held that there could on the facts found be no implied term of the kind held by the tribunal to exist. As far as the third ground was concerned, the Appeal Tribunal held that in the absence of an express mobility clause in her contract the compulsory transfer of Mrs Aparau to East Finchley was necessarily a repudiation of her contract. In the light of those conclusions the Appeal Tribunal remitted the matter to the industrial tribunal for a re-hearing of the issue whether Mrs Aparau's contract of employment contained an express mobility clause. In other words, it was for the tribunal to decide, having regard to the facts and applying the principles stated by the Appeal Tribunal, whether Mrs Aparau had agreed to the new terms.

Before going any further it is necessary to say a little more about the Employment Appeal Tribunal's order. Although it remitted the case to the industrial tribunal, it did so for a very limited purpose. We were not provided with a copy of the order itself, but it is clear from the terms of the judgment that it was restricted to a reconsideration of the first of the three points which the industrial tribunal had determined. Judge Hicks expressed himself in this way at page 18 of the transcript:

"But, as to the first ground, we accept that since our reason for setting aside the decision of the industrial tribunal is that of misdirection we ought to remit the matter for a re-hearing of that issue alone, which will of course be conducted on the basis of a proper direction as we have held it to be."

A little later he said:

"So our direction will be that the matter be remitted for a re-hearing of the issue whether there was an express incorporation of Clause 5 of the respondent's standard terms and conditions as circulated in 1990."

On 14^th June 1996 Iceland's solicitors wrote to the Tottenham Neighbourhood Law Centre which was acting for Mrs Aparau drawing its attention to the fact that the tribunal had not considered whether the dismissal of Mrs Aparau, if indeed there had been a dismissal at all, was fair. They said that they regarded that question as still outstanding. However, Iceland clearly took the view that in the light of the judgment of the Employment Appeal Tribunal its prospects of persuading the industrial tribunal to uphold its original decision were poor because on 18^th October 1996 its solicitors wrote to the secretary of the tribunal conceding that Mrs Aparau had been constructively dismissed. They put the matter in this way:

"What is apparent from both the industrial tribunal and Employment Appeal Tribunal decision is that thus far only the question of breach of contract has been addressed. What has not been addressed is the question of fairness of the dismissal.

In respect of the point upon which the Employment Appeal Tribunal has referred the matter back to the Industrial Tribunal, namely to ascertain whether there was an express variation of the contract of employment, our client concedes the point and accepts that there was no express variation. In essence, therefore, our client admits that there was constructive dismissal. They do not however accept that the dismissal was unfair.

. . . . . . . . . . . . . . . . . . . .

We therefore take the view that it is open to us to ask the Tribunal to consider the fairness of the dismissal and the potentially fair reasons.

. . . . . . . . . . . . . . . . . . . .

If the Chairman feels that the IT3 requires amendment . . . . . . . . . . then would the Chairman please accept this letter as our request for an amendment of the IT3 to incorporate a prayer that if the applicant was dismissed then the dismissal was fair on the grounds of some other substantial reason in any event."

I pause at this point to say that I find it most surprising that a letter of that kind was not copied to Mrs Aparau or those advising her. I should have thought it was an elementary principle, both as a matter of propriety and as a matter of courtesy, that one party to a dispute should not, save in exceptional circumstances, correspond with the tribunal without sending a copy of its communication to the other. However, that does not appear to have been done in this case.

On 30^th October 1996 the secretary to the tribunal replied to Iceland's solicitors in these terms:

"Your letter dated 18/10/96 has been referred to the Chairman who accepts that the issue determined by the Industrial Tribunals on 28.1.93 was whether the Applicant was "dismissed" by the Respondents.

As it is now conceded consequent upon the appeal to the EAT that the applicant was dismissed, the issue to be determined at the reinstated hearing to the tribunal is the reason for the Applicant's dismissal and whether the Respondents acted reasonably or unreasonably in all the circumstances in treating that reason as a sufficient reason for dismissing the Applicant

The Respondents have leave to amend their Notice of Appearance as requested in the penultimate paragraph of their letter."

It is plain from this letter that the chairman of the tribunal was either unaware of the terms of the Employment Appeal Tribunal's judgment or misunderstood the limited scope of the remission which had been ordered. Moreover, having regard to the contents of this letter it is again most surprising that the tribunal did not see fit to send a copy to Mrs Aparau or those advising her. However, on 11^th November 1996 Iceland's solicitors did send a copy to the Tottenham Neighbourhood Law Centre under cover of a letter in which they set out in brief terms the nature of their client's argument in relation to the fairness of the dismissal. By the time the matter came before the tribunal for the second time, therefore, those acting for Mrs Aparau ought to have been well aware of the issues which Iceland intended to raise and of the tribunal's willingness to entertain them.

The matter came back for a second hearing before the industrial tribunal on 11^th March 1997. The constitution was the same as it had been for the first hearing. Despite what had been said by the Employment Appeal Tribunal, the tribunal appears to have understood that the matter had been remitted to enable it (in its own words)

"to determine, in effect, whether the respondents have established that Mrs Aparau was dismissed for one of the reasons specified in section 98 (1) of the Employment Rights Act 1996 and whether or not they acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing her within the meaning of section 98(4) of the Act."

How the tribunal was led to reach that conclusion is unclear. Perhaps it simply assumed that that was the case and was fortified in that understanding by the letter from Iceland's solicitors to which I have already referred. However, it is fair to say that ever since the exchange of correspondence in the autumn of the previous year those acting for Mrs Aparau must have been aware that the tribunal was proceeding on that basis. Yet no objection was made on her behalf either before or at the hearing. As a result the tribunal went on to hear further evidence and reach decisions on those questions. It held that the reason for Mrs Aparau's dismissal was the deadlock brought about by the breakdown of relations between her and Mr. McKechnie and that that was sufficient to provide grounds for her dismissal as being "some other substantial reason" within the meaning of section 98(1)(b) of the Employment Rights Act. The tribunal then went on to consider at some length the circumstances surrounding her dismissal with a view to deciding whether in all the circumstances it was fair or not. It is not necessary to refer in full to that part of the Reasons which extends to over three pages. It is sufficient at this stage to say that the tribunal described the situation as it had developed at the Wood Green store and the steps taken by the District Manager, Mr. Jones, and the Group Personnel Controller, Mrs Bather, to investigate and resolve the problem. It referred to the fact that on 11^th July Mr. Jones had offered to transfer Mrs Aparau to East Finchley and that she had asked for time to consider the suggestion. It also described the circumstances in which matters came to a head on 18^th July. It then considered the various options open to Iceland and made findings about the attitude of Mrs Aparau and the reasons why she was unwilling to transfer to East Finchley. Finally it set out the reasons for its conclusion that her dismissal was reasonable having regard to the circumstances in which it occurred. On that basis the Tribunal held that she had not been unfairly dismissed.

Morison J. gave leave for a second appeal to the Employment Appeal Tribunal. He did so in order to enable Mrs Aparau to argue three points: that the industrial tribunal had misdirected itself as to the reasons for the dismissal; that it had misdirected itself as to the proper approach to a case where an employer has acted unlawfully in breach of contract; and that the employer had failed to give proper and due consideration to the need for consultation having regard to the fact that Mrs Aparau was the mother of a child who was in education.

On 12^th March 1998 the matter came before the Employment Appeal Tribunal on the substantive appeal, His Honour Judge Peter Clark presiding. Having heard argument the Tribunal held (a) that the existence of a repudiatory breach of contract on the part of the employer is not determinative of whether the dismissal was fair or unfair for the purposes of the Act: a constructive dismissal can still be a fair dismissal; (b) that the industrial tribunal was entitled to find that the reasons for Iceland's repudiatory breach of Mrs Aparau's contract were capable of constituting "some other substantial reason" within the meaning of s.98(1)(b); and (c) that it was open to the industrial tribunal on the evidence before it to find that the dismissal was not rendered unreasonable by lack of consultation. On these grounds the Tribunal dismissed Mrs Aparau's appeal and it is against this decision that she now appeals with the permission of this court.

The grounds of Mrs Aparau's appeal as set out in her Notice of Appeal can be summarised as follows:

(a) that the Respondents acted unreasonably in failing to give her more than 12 hours notice of dismissal given that they thought they were invoking a contractual right to require her to change her place of work; if they had had such a right it would have been subject to an implied requirement that she be given reasonable notice;

(b) that both the industrial tribunal and the Employment Appeal Tribunal failed to take sufficient account of Iceland's size and the resources available to it;

(c) that both the industrial tribunal and the Employment Appeal Tribunal were wrong to hold that Iceland was entitled to dispense with consultation.

However, on opening the appeal Mr. Kibling on behalf of Mrs Aparau sought permission to amend the notice of appeal to raise a question of an altogether different kind, namely, whether the industrial tribunal's decision that the dismissal was fair was a nullity because in seeking to determine that question the tribunal exceeded the scope of the remission and therefore acted outside its jurisdiction. Having regard to the fundamental nature of this submission and to the fact that it relates to the jurisdiction of the tribunal we considered it right to allow Mr. Kibling to develop the argument fully as part of his application for permission to amend the notice of appeal, even though it had not been raised below.

Neither counsel was able to refer us to any authority bearing directly on this question and therefore we approach the matter by reference to first principles. Industrial tribunals are bodies established by statute. Although such tribunals were established under earlier legislation, it is unnecessary for present purposes to refer to any enactment prior to the Employment Protection (Consolidation) Act 1978 which, as its name implies, re-enacted and consolidated a number of earlier provisions. Section 128(1) of the 1978 Act empowered the Secretary of State to make provision by regulations for the establishment of industrial tribunals to exercise the jurisdiction conferred on them by existing statutes and any new legislation. The Act provided for existing regulations made under earlier statutory provisions to remain in effect and these continued to govern the constitution and procedure of industrial tribunals until they were eventually revoked and replaced with effect from 16^th December 1993 by The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 made under the 1978 Act. The statutory basis of the industrial tribunals' jurisdiction was subsequently renewed by the Industrial Tribunals Act 1996, section 2 of which effectively re-enacts section 128(1) of the 1978 Act. The jurisdiction of industrial tribunals to hear and determine claims for compensation for wrongful dismissal is now derived from section 111 of the Employment Rights Act 1996 which re-enacts section 67 of the Employment Protection (Consolidation) Act 1978.

The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 made under the 1978 Act continue to govern the constitution and procedures of industrial tribunals by virtue of section 1(2) of the Employment Rights Act 1996. Rule 11 gives industrial tribunals a limited power to review their decision but does not give them any general right to re-open proceedings once they have been disposed of by a final decision. It follows in my judgment that an industrial tribunal, like any other tribunal, has exhausted its jurisdiction once it has delivered a final decision disposing of all the issues before it. Thereafter, apart from the limited power of review given by Rule 11 of the Rules of Procedure, it has no power to re-open the hearing or reconsider its decision unless the matter is remitted to it for that purpose by the Employment Appeal Tribunal. The Employment Appeal Tribunal, now established under section 20(1) of the Industrial Tribunals Act 1996, has power to hear appeals on questions of law arising out of decisions of industrial tribunals. Under section 35(1)(b) it has power for the purposes of disposing of an appeal to remit the case to the industrial tribunal for further consideration. That power is clearly wide enough to allow it to remit the case for reconsideration generally or for a more limited purpose as appropriate.

The effect of an order remitting a case to a tribunal which had otherwise exhausted its jurisdiction was considered by this court in the context of arbitral proceedings in Interbulk Ltd v Aiden Shipping Co Ltd (The "Vimeira" (No.1)) [1985] 2 Lloyd's Rep. 410. Ackner L.J. pointed out that the extent to which the tribunal's jurisdiction is revived in consequence of an order remitting the matter to it depends entirely on the scope of the remission. If, as occurred in the present case, the matter is remitted for the tribunal to consider certain specific issues, it will have no jurisdiction to hear or determine matters outside the scope of those issues and it must follow that it has no power to allow one party to amend its case to raise issues which were not previously before it. In the present case it is clear from the passages in the judgment of the Employment Appeal Tribunal to which I have already referred that remission was ordered in very limited terms simply to enable the industrial tribunal to reconsider whether Iceland's new terms of employment had been accepted by Mrs Aparau. That being so, the tribunal did not by virtue of the remission have jurisdiction to reopen the case generally, nor did it have jurisdiction to hear or determine any argument on the part of Iceland relating to the fairness of any dismissal. Although Mr. Glennie sought to persuade us to the contrary, I for my part am quite satisfied that that was not an issue which had previously been raised in the proceedings and it was certainly not within the scope of the remission.

It is highly unfortunate that no one drew attention to this point as soon as Iceland indicated in correspondence that it intended to raise the question of the fairness of Mrs Aparau's dismissal and it should, of course, have been raised at the hearing itself. If the matter did not concern the jurisdiction of the tribunal there might well be strong grounds for arguing that Mrs Aparau had consented to its assuming jurisdiction in respect of this new issue. Mr. Glennie pointed out, quite correctly, that the issue which the tribunal was being asked to decide on the second occasion was one which falls squarely within the scope of its statutory jurisdiction. This is not, therefore, a case in which the parties, by tacit consent, were seeking to give the tribunal jurisdiction to determine a matter which lay outside the ambit of its statutory powers. However, unlike arbitrators, whose jurisdiction is based entirely on the consent of the parties, the industrial tribunal derives its jurisdiction entirely from statute. Moreover, it is a jurisdiction which falls to be exercised in accordance with statutory rules of procedure and within the framework of a system which provides for appeal to the Employment Appeal Tribunal. I do not think that the parties can by acquiescence or agreement enable the industrial tribunal to act outside the boundaries of the rules laid down by the statutory scheme so as effectively to clothe it with a jurisdiction which it would not otherwise possess.

The order made by the Employment Appeal Tribunal on the first appeal would inevitably have led to one or other of two outcomes following the rehearing by the industrial tribunal: either the tribunal would have held that the mobility clause formed part of Mrs Aparau's contract, in which case it would have held that she had not been dismissed; or it would have held that it did not, in which case it would have been bound to find that she had been dismissed unfairly because Iceland had not sought to establish that any dismissal was fair. If Iceland wished to raise that issue, the proper course was to apply to the Employment Appeal Tribunal to remit the case to the industrial tribunal for that purpose. It must be very doubtful whether an application of that kind would have had any prospect of success in the light of the way in which the proceedings had been conducted, but that would have been a matter for the Employment Appeal Tribunal itself to consider. However, that only serves to emphasise the fact that for the industrial tribunal to re-open the matter itself, even with the consent of the parties, necessarily involves disregarding previous decisions including the order of the Employment Appeal Tribunal. That is not something which in my judgment it had the power to do and accordingly its decision on the fairness of Mrs Aparau's admitted dismissal was a nullity.

The circumstances in which it will be appropriate to allow a new point to be raised on appeal to this court are likely to be few and far between. However, I am satisfied that in this case it would be right to do so since the question which Mrs Aparau seeks to raise directly concerns the industrial tribunal's jurisdiction and does not give rise to the need for any additional evidence. For the reasons I have given I would grant Mrs Aparau permission to amend her notice of appeal and would allow the appeal on this ground. Since we did not find it necessary to hear argument on the other grounds of appeal I need say no more about them.

LORD JUSTICE MANCE: I agree with the judgment which Moore-Bick J. has given and with that which Peter Gibson L.J. is about to give. We are concerned with a statutory jurisdiction being exercised by the industrial tribunal in 1996-97 solely under and on the basis of the remission ordered by the Employment Appeal Tribunal on 9^th October 1995. The remission limited the scope of the industrial tribunal's jurisdiction to the one issue whether there was an express mobility clause, with the necessary implication that the industrial tribunal would decide the case for or against Mrs Aparau according to its determination of that single issue. By deciding to go outside that issue the tribunal exceeded its jurisdiction. The parties could not by consent confer on this statutory tribunal jurisdiction beyond that afforded in this case by the remission (see e.g. R. v. Judge Pugh [1951] 2 K.B. 623, 628, per Lord Goddard C.J.). This is not a case of two separately initiated sets of proceedings each invoking the industrial tribunal's general statutory jurisdiction. Nor, therefore, is it a case of a party in a second set of proceedings relying on a point which was or could have been been relied upon him in the first set of proceedings, in which case failure by the other party to object could be very material. Principles of cause of action or issue estoppel and the principle in Henderson v. Henderson (1843) 3 Hare 100 - considered in the context of an industrial tribunal in Staffordshire C.C. v. Barber [1996] ICR 379 and Church v. West Lancashire NHS Trust [1998] IRLR 492 - do not apply. What has occurred as a result of the tribunal acceding the respondents' invitation to go into matters outside those remitted to it by the Employment Appeal Tribunal on 9^th October 1995 is unfortunate and, although this has not been identified until the matter reached this court after a further appearance before the Employment Appeal Tribunal, invalid. In view of the respondents' concession that there was no express mobility clause, I agree that the dismissal must be declared to have been unfair.

LORD JUSTICE PETER GIBSON: The provisions governing procedures for resolving employment disputes are designed to ensure that the resolution of those disputes will be speedy. It is a lamentable feature of the present case that the high-handed behaviour of the employer constituting the constructive dismissal which the employee has throughout claimed to have been unfair occurred as long ago as 1990. And yet the litigation continues. The history of this dispute has been set out by Moore-Bick J. in his judgment and I need not repeat the unfortunate sequence of events which have taken place.

For my part I do not doubt that if at the hearing before the EAT in 1995 the employer had made the concession which it was to make the following year, viz. that there was no express variation of the employee's contract of employment, the EAT would have declared the constructive dismissal to be automatically unfair. This is because the employer had neither by its IT3 nor at the hearing in January 1993 before the Employment Tribunal sought to put forward any defence to the employee's claim other than that there had been no dismissal. It had not done what the EAT in Derby City Council v Marshall [1979] ICR 731 said should be done when the complaint is one of constructive dismissal and the employer wishes to contend both that there is no dismissal and that, if that is wrong, the dismissal is not unfair. Bristow J. (giving the EAT's judgment) at p. 735 said in relation to the obligations imposed on the employer by the statutory predecessor to s. 57 (1) and (3) Employment Protection (Consolidation) Act 1978 (including the obligation to show the reason for the dismissal):

"The statute lays upon the employer the requirement of proving what the reason was; that it was a admissible reason; and that he acted reasonably in using it to dismiss. Those are all matters which the employer has to establish. If he does not try, then he cannot establish what the statute requires him to and the dismissal is accordingly unfair."

If the EAT had so declared, the only matter left to be decided by the Tribunal would have been the appropriate remedy.

It is unfortunate that the employer by letter sought from the Tribunal (and without notice to the employee) an amendment to its IT3. That application proceeded on a fundamental misapprehension of the position in law. The Tribunal by its decision promulgated on 8 February 1993 had no further function to perform save to the limited extent it could review its own decision and save to the extent that there was a remitter to it by the EAT. In theory the EAT might have had the power to extend the remitter which it had ordered so as to allow the new point on the fairness of the dismissal to be taken. But to do so would be contrary to the well-established principle requiring a litigant to raise all relevant points at the substantive hearing, and it would not have been just to remit the case to allow a new point to be taken which had not been previously taken and which would require further evidence to be adduced (Church v West Lancashire NHS Trust [1998] IRLR 492).

It is even more unfortunate that the Tribunal chairman allowed the amendment (without giving the employee the opportunity to object). It is yet more unfortunate that at the hearing the Tribunal completely misunderstood the limited purpose of the remitter and the extent of its jurisdiction. It is further unfortunate that the point on jurisdiction was not taken by counsel (not Mr. Kibling) appearing for the employee before the Tribunal and the EAT. But though the point is taken late (now that Mr. Kibling appears for the employee), I am not persuaded by Mr. Glennie appearing for the employer that this is merely a res judicata point which cannot be raised in this court. It seems to me to go to the jurisdiction of a statutory tribunal, and it is elementary that jurisdiction cannot be conferred on such a body by consent or acquiescence. Further it is not a point which requires further evidence.

In the circumstances in my judgment it is only just that we should allow the point to be taken; once taken it is conclusive of this appeal. For these as well as the reasons given by Moore-Bick J. I would allow the appeal, set aside the decision of the Tribunal and the order of the EAT, and declare the dismissal to have been unfair. We have heard no argument on the other points taken by the employee and I say nothing on them.

Order:

Appeal allowed with appellant's costs to be paid after jurisdiction argument was raised.

No order as to costs before that date.

Orders of the Tribunal and the EAT to be set aside.

(Order does not form part of approved judgment)