England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay (President))

		Royal Courts of Justice Strand London WC2 Monday, 15th October 2001

Monday, 15th October 2001

1. LORD JUSTICE KEENE: The Africa Advocacy Foundation seeks permission to appeal against a judgment of the EAT dated 24th May 2001. By that judgment the Employment Appeal Tribunal, presided over by Lindsay J, decided at a preliminary hearing that the appeal to it from an Employment Tribunal should be dismissed.
2. This matter was listed before me for 10 o'clock this morning. It is now very nearly 25 minutes to 11 and there is no appearance by or on behalf of the applicant. No message has been received indicating that there is any problem in the Foundation's representative being here this morning or indicating that there is any delay. No request has been made for an adjournment. In those circumstances I propose to give a brief judgment on the basis of the issue raised in the documents
3. The respondent, Mr Kiwanuka, had been employed by the applicant in early 1998 as project coordinator. He was suspended on full pay on 26th August 1998 and dismissed with one week's notice on 4th January 1999. He had not been paid his salary since August 1998, and he claimed that the sum of £4,872.84 had been unlawfully deducted from his wages by the Foundation, being the wages due to him up to the date on which his contract of employment had ended on 11th January 1999. The Foundation argued that Mr Kiwanuka had obtained his employment and wages by fraud and that the contract of employment was therefore vitiated. The Employment Tribunal in its decision on 10th August 1999 found that even if Mr Kiwanuka had obtained his employment by fraud, the contract of employment was not void or voidable. I emphasise that the Tribunal did not decide whether there had been fraud or not. It held that wages were due up until the date the contract had ended, the Foundation had not been entitled to withhold wages under section 13(1) of the Employment Rights Act 1986 and therefore had made an unlawful deduction or reduction. Accordingly, the Employment Tribunal ordered the Foundation to pay Mr Kiwanuka the sum claimed by him.
4. What then happened was that over a year and three months later on 1st December 2000 the Foundation applied to the Employment Tribunal to set aside its order which had been made on 10th August 2000. It did so on the ground that "the order was an error of law on the face of the record". The Foundation argued that the action should have been brought, and the order should have been made, against the trustees of the Foundation rather than the Foundation itself. The Employment Tribunal treated the letter as an application for a review of its decision. On 21st December 2000, acting by its Chairman, it refused the application on the grounds that it had no reasonable prospect of success. Moreover, the application was out of time and an extension of time was refused.
5. In its extended reasons of 21st December 2000 the Employment Tribunal Chairman referred to the power possessed by an Employment Tribunal under Rule 11 of the Employment Tribunals Rules of Procedure 1993 to review a decision on certain grounds. It said (paragraph 2):

"Those grounds do not include an error of law but they do include that a party did not receive notice of the proceedings leading to the decision; that the decision was made in the absence of a party; that new evidence has become available since the conclusion of the hearing to which the decision relates, provided its existence could not have been reasonably known or foreseen at the time of the hearing; or the interests of justice require such a review. The Rule provides a time limit for applications for review of 14 days from the date on which the written decision is sent to the parties. There is a general discretion to extend time under the Rules."

6. That is an accurate summary of the position under the 1993 Rules, rule 11. The Chairman went on to emphasise that the employer had entered an appearance in the proceedings as the Foundation and that the point now raised was not raised at the original hearing, even though the Foundation had a legal representative in the person of Dr Adoko. The Employment Tribunal was not satisfied that any of the rule 11 grounds was made out, and for that reason and because it was out of time and no explanation for the delay had been given, it refused a review.
7. The appeal to the EAT asserted that the decision to refuse a review was contrary to three provisions of the 1993 Rules, to section 6 of the Human Rights Act 1998 and to the rules of natural justice and the principles of equality. The EAT considered all these points and rejected them, saying this in the course of its judgment:

"Next the Chairman of the Foundation claims that the Foundation had not realised that it had grounds for a review. Even if the case were to be that the Foundation could not be sued under its own name (which at the moment I shall assume without deciding) its ignorance of that supposed fact cannot justify permitting a challenge now in 2001 to a decision of August 1999. There needs to be finality in litigation. A party's own ignorance of its own formal legal position is not a factor that is so compelling as to permit the undoing of so old an award in favour of Mr Kiwanuka."

8. A specific point was raised before the EAT, namely that the Employment Tribunal Chairman's reasons referred to a letter from Mr Kiwanuka's representatives dated 12th December 2000 objecting to a review. Before the EAT it was said that this had not been sent to the Foundation and this was argued to be contrary to natural justice and amounted judicial bias. The EAT pointed out that the letter of 12th December said at its foot that it had been copied to the Africa Advocacy Foundation, which no doubt explained why the Tribunal had assumed that the Foundation had received a copy. More to the point, the EAT looked at the letter of 12th December 2000 and the points there raised and said that if the Foundation did not get a copy it should have an opportunity to indicate what it could say contrary to the letter. The EAT judgment continues:

"That opportunity has obviously been given today but Dr Adoko has not told us anything that seems to undo the reasoning of the letter as laid before the Tribunal Chairman."

9. In short, the EAT was saying that if the Foundation had originally been denied the chance to comment, the evidence showed that that procedural breach did not make any difference to the end result.
10. In the notice of appeal to this court the Foundation through Dr Adoko makes a number of points. It criticises the decision about the letter of 12th December 2000; it complains that the Tribunal Chairman was wrong in saying, as he did, that an error of law did not fall within rule 11 of the 1993 Rules and provide a ground for review; and, finally, complaint is made about the Tribunal's decision not to extend time for a review. I will take each of those three points in turn.
11. So far as the letter of 12th December 2000 is concerned, the EAT assumed for the purposes of its decision that the letter had not been received by the Foundation and that this was a procedural error. It was right to reject the allegation of judicial bias. The Employment Tribunal's assumption that the letter had been copied to the Foundation was entirely understandable in the circumstances. It was therefore no indication of bias. But the breach of procedure point remained. That, however, did not automatically invalidate the Employment Tribunal's decision to refuse a review. The EAT rightly looked at the consequences of the procedural error, and it did so by ascertaining what the Foundation would have said in response to the letter. That in my judgment is a proper approach for to it adopt. The EAT, in the event, held after hearing Dr Adoko that the error made in effect no material difference to the end result. That was a conclusion to which the EAT was entitled to come.
12. I turn next to the arguments about an error of law and rule 11.
13. The Employment Tribunal Chairman was right in saying that the grounds set out in rule 11 do not include an error of law. There is no express mention amongst the grounds set out there in rule 11 of such an error. But Dr Adoko in his written submissions is right in saying that such an error can come in some circumstances within sub-paragraph (e) of rule 11, that is to say:

"The interests of justice require such a review."

14. But the Employment Tribunal Chairman considered ground (e) in all its scope and he came to an entirely rational conclusion. I say that because he pointed out that the Foundation had conducted the original proceedings and the Foundation had never raised this point even though it had been legally represented. He was entitled to conclude, therefore, that the interests of justice did not require a review. The Foundation had in effect had plenty of opportunity with legal advice to take this point below and had not done so.
15. Finally, there is the issue of whether an extension of time should have been granted. The legal status of the Foundation was, and is, a matter peculiarly within its own knowledge. The foundation was here seeking to upset a decision made well over a year earlier. The Chairman clearly had a discretion as to whether to extend time or not. In the circumstances to which I have referred, I can see nothing wrong with how he chose to exercise his discretion by refusing an extension of time and there is no prospect of that ground being successful.
16. Looking at the matter in the round, this appeal has, so far as I can see, no realistic prospect of success. In those circumstances this application will be dismissed.
Order: Application dismissed.