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 Tuesday, 13th November 2001

Tuesday, 13th November 2OO1

1. LORD JUSTICE PETER GIBSON: Bernard Smyth applies for permission to appeal against the dismissal by the EAT on 15th June 2001 of his appeal at a preliminary hearing. He had appealed against the decision promulgated on 24th September 1999 of an Employment Tribunal sitting in London South. By that decision the Tribunal rejected Mr Smyth's claim of unfair dismissal. He had also appealed to the EAT against the Tribunal's decision promulgated on 10th November 1999 striking out an originating application presented by Mr Smyth claiming wrongful dismissal.
2. The procedural history of this matter is unusual. Mr Smyth was employed by the respondent, London General Transport Services Ltd, as a bus driver from 18th August 1994 until dismissal on 29th March 1999. He had been on sick leave for seven weeks commencing November 1998 and for eight weeks prior to his dismissal. He was dismissed on grounds of capacity, his ill- health preventing him from performing the work which he had been employed to do. He applied to the Tribunal, claiming both wrongful dismissal and unfair dismissal. His case was heard on 6th September 1999 when Mr Smyth was represented by Mr Tindall from his union, the Transport and General Workers' Union. The Tribunal's summary reasons promulgated on 24th September 1999 stated that "the complaint of wrongful dismissal was dismissed on withdrawal by the Applicant." It decided that Mr Smyth was not unfairly dismissed. On 7th September, the day after the hearing, Mr Smyth left a letter at the Tribunal complaining that Mr Tindall "was not serving the best of my interests". He said that after the hearing he discovered that the written representation which he had prepared (which has been called "Document A" and which he and Mr Tindall had agreed was to be handed to the Tribunal) was not handed to the Tribunal and that another written representation which Mr Tindall had prepared ("Document B") was handed in. He described Document B as "a bad revision of Document A with no references to the submitted evidence and purposely prepared to spoil my case". He acknowledged that Document A had been read to the Tribunal by Mr Tindall, but he claimed that this was done at so great a speed that the Tribunal could not refer to the evidence. He asked that the Tribunal decide his case treating Document A as his written representation. The Tribunal responded on 4th October that his letter had been received after the Tribunal had reached its decision in the afternoon of 6th September and could not be taken into account.
3. Even before that letter was received Mr Smyth on 15th September 1999 presented a further originating application claiming wrongful dismissal. On 12th October the Tribunal wrote to Mr Smyth saying that because his earlier complaint of wrongful dismissal had been withdrawn by him, the Chairman was minded to dismiss the second application. He was invited to give written reasons if he wanted to oppose that dismissal. By letter dated 18th October Mr Smyth denied that he had ever withdrawn his claim of wrongful dismissal. He alleged that at the hearing of 6th September the Chairman had said that he would not hear Mr Smyth's case on wrongful dismissal because he saw no reason for the application. On 25th October 1999, he says, he wrote again to the Tribunal asking the Tribunal to review its decision made in respect of the hearing of 6th September that he was not unfairly dismissed. He acknowledged that his application was made late, but he said that that was because the decision was sent by the Tribunal not to the address given in his IT1 as his address where documents should be sent but to the other address also given in his IT1 at which, he said, he only occasionally attended. He said that he only became aware of the decision on 20th October when he phoned the Tribunal. He has told me today that he only received the decision with the summary reasons on 22nd October.
4. He claimed that Document A constituted new evidence within Rule 11(1)(d) of the Employment Tribunal Rules 1993. He also claimed that a review should be granted in the interests of justice within Rule 11(1)(e). Mr Smyth also asked for extended reasons for the decision. On 1st November he wrote again to the Tribunal saying that by his letter of 25th October he had asked for a review and for extended reasons, and he asked whether his requests were to be granted. But on 10th November the Chairman struck out the second wrongful dismissal claim on the ground that it was frivolous and on 17th November the application for a review was refused, the Chairman stating that he had received the letter of 1st November but not the letter of 25th October and that the application was out of time. The Chairman said that he was aware of his power to extend time but it was not appropriate to do so. In any event, he said, the application for a review had no reasonable prospect of success and the interests of justice did not require it. He refused the application for extended reasons as that application was out of time and there was no reason to extend time.
5. Mr Smyth then appealed to the EAT. The EAT concentrated on two main questions:

(1) Was the wrongful dismissal complaint withdrawn?

(2) Could a review have led anywhere to Mr Smyth's benefit?

6. On the first question Lindsay J, the President of the EAT, giving its judgment, looked at all the evidence including the Tribunal Chairman's notes and comments as to his recollection. He looked at the comments of the employer's solicitors. Further he looked at a letter from solicitors for the TGWU recording Mr Tindall's recollection that he did withdraw the complaint of unfair dismissal with Mr Smyth's consent after a short adjournment at which they had discussed the matter. The EAT concluded that the claim had been withdrawn. The EAT also noted that Mr Smyth, who appeared in person before the EAT, had agreed that he did withdraw that complaint but had said that he withdrew it "under distress". As for the application for review, the EAT said that there could have been no basis for a review of the dismissal of the wrongful dismissal claim, and as for the decision that the dismissal was not unfair, there were no grounds for a review. No error of law had been revealed to the EAT, which therefore dismissed the appeal.
7. Mr Smyth has set out in his Appellant's Notice the grounds on which he is seeking to appeal to this court. He says that the EAT's decision was wrong in not finding the earlier decision of the Tribunal unjust because of many serious procedural errors and irregularities there. That excessive generality in stating the grounds is cured by Mr Smyth's skeleton argument to which he has added some oral submissions before me today.
8. His first ground is that the Chairman of the Tribunal refused his wrongful dismissal claim without regard to rule 13(3) of the Employment Tribunal Rules of Procedure. Rule 13(3) provides that before making an order under rule 13(2)(d), (e) or (f) the Tribunal should send notice to the party against whom it is proposed that the order should be made, giving him an opportunity to show cause why the order should not be made. But it continues:

"This paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

9. Paragraphs 13(2)(d), (e) and (f) give power to the Tribunal to strike out parts of an originating application.
10. For my part I am extremely doubtful whether rule 13(2) and therefore (3) have any application whatever to a case where there has been a withdrawal by an applicant of a part of his originating application. In this respect one notes in 13(2)(a) that a tribunal may, if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings. Paragraph 13(3), of course, only applies to subparagraphs (d), (e) or (f), not to (a). But even if rule 13(3) did apply, I cannot see why the concluding part of that sub-rule was not satisfied. Mr Tindall plainly had the opportunity to show cause orally why the wrongful dismissal complaint should not be struck out, but he agreed, he says with Mr Smyth's consent, that it should be withdrawn. I see nothing whatever therefore in the first complaint.
11. I should add that Mr Smyth also refers to what is currently Regulation 10 of the Employment Tribunal Regulations 2001. That is a provision which brings tribunals into line with courts in requiring the tribunals to have regard to the overriding objective of the Civil Procedure Rules. Mr Smyth has drawn my attention to a transitional provision in Regulation 14 which states that the Regulations should apply in relation to all proceedings to which they relate irrespective of when those proceedings were commenced. But that can hardly apply to what a tribunal Chairman did before those regulations came into force, which they did only on 16th July 2001. It cannot retrospectively apply to 1999 when the Tribunal Chairman would have been unaware of the Regulations which had not yet been made. In any event, even if it had to be taken into account, I cannot see anything to substantiate a complaint that what the Chairman did contravened the overriding objective.
12. The second ground is a twofold complaint. One is that the Chairman refused to act on what was contained in the letter of 7th September 1999. But it was explained to Mr Smyth that the decision had already been taken by the Tribunal. In any event there was no new material in the letter which has been called Document A. Document A was read out to the Tribunal. True it is that it may have been read fast, but if the Tribunal was not able to understand or comprehend what was said, it would have been bound to have asked Mr Tindall to slow down and to speak in a way in which it could comprehend the document. Plainly it did not have that difficulty. In any event Document B, about which Mr Smyth complains, seems to me to be a more readily understandable summary of Document A, and that on any footing was left with the Tribunal. Mr Smyth's criticisms of Document B are in my view unjustified.
13. The other complaint is that because the letter of 7th September was not taken into account, there should have been a review under rule 11(1)(d) or (e). But neither paragraph in my judgment applies. There is no new evidence within sub-paragraph (d), nor do I see how the interests of justice require a review when the complaint made by a litigant after the hearing is about his representative at the hearing. That is not a matter which comes within sub-paragraph (e).
14. Grounds 3 and 4 are complaints about the Tribunal sending its decision to the wrong address. Let me assume that Mr Smyth is correct and that that did occur. But, if one looks at the substance of the matter, what is there that would lead to a conclusion that Mr Smyth thereby suffered? The Tribunal Chairman made clear that he did not decide against a review on the sole ground of the delay in Mr Smyth asking for a review. He said that the application for a review had no reasonable prospects of success. For the reasons which I have already given, that seems to me to have been plainly right.
15. Ground 5 is another complaint of a breach of Regulation 10 of the 2001 Rules, and again I make the same comments.
16. Ground 6 is again a general invocation of Regulation 10, and again I make the same comments.
17. Mr Smyth is very bitter at what he says is the injustice of never having had his case properly dealt with. But he did have the opportunity on 6th September of having his case presented by the representative of his choice. He chose to withdraw his case in respect of wrongful dismissal, and no grounds whatever have been given to show that the unfair dismissal case was incorrectly dismissed by the Tribunal. On the contrary, for the reasons which the Tribunal gave, it seems to me, that was a decision which it was well entitled to reach.
18. For these reasons, I am afraid, I do not think that there is any real prospect of success on an appeal and no other compelling reason has been shown why this appeal should go ahead. I must therefore dismiss this application.
Order: Application dismissed.