United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 183_90_0705, [1992] UKEAT 183_90_705

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BAILII case number: [1992] UKEAT 183_90_0705

Appeal No. EAT/183/90, EAT/469/90

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 May 1992

Before

HIS HONOUR JUDGE N HAGUE QC

MR A C BLYGHTON

MR J R CROSBY

VEGA SPACE SYSTEMS ENGINEERING LTD APPELLANTS

MR D WESTON RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants Mr C Jeans

(Of Counsel)

Messrs Harris Rosenblatt & Kramer

Solicitors

26-28 Bedford Row

LONDON WC1R 4HE

For the Respondent In Person

JUDGE HAGUE: There is before us a preliminary point which may be of some general importance. It concerns the procedure and time for appealing against a decision of an Industrial Tribunal after that decision has been the subject of a review by the Tribunal under paragraph 10 of Schedule 1 of the Industrial Tribunals (Rules of Procedure) Regulations 1975.

It is only necessary to give the briefest outline of the facts of the case. The applicant, Mr Weston, was dismissed by the respondents, Vega Space Systems Engineering Ltd ("Vega"), from their employment as long ago as June 1987. The ground justifying the dismissal alleged by Vega was Mr Weston's failure to attend for work for a period of more than 3 days without good reason. Mr Weston's answer to that was that Vega had refused to provide him with a company car to which he said he was entitled under his terms of employment.

Mr Weston made a claim for unfair dismissal. There was first dealt with a preliminary issue as to whether Mr Weston was qualified to make a claim. That issue was eventually decided by the Appeal Tribunal in Mr Weston's favour (see [1989] IRLR 429), reversing the Industrial Tribunal. In view of what has occurred subsequently, it is of interest to note that Mr Weston served his Notice of Appeal against the Industrial Tribunal's decision outside the 42 day period allowed by Rule 3(1A), Employment Appeal Tribunal Rules 1980, and had to obtain leave to appeal out of time. His application for leave was granted by the Registrar whose decision was upheld by the Appeal Tribunal on 31st October 1988. Vega subsequently applied for a review by the Appeal Tribunal of that decision but the application was refused on 6th January 1989.

The substantive hearing before the Industrial Tribunal then took place on 11th and 12th December 1989. By its decision sent to the parties on 2nd February 1990, the Tribunal decided that Mr Weston had been unfairly dismissed, and made a total monetary award of £5,409.07 in his favour. In paragraph 42 of its decision, the Tribunal referred to the well-known dicta of Arnold J in British Home Stores v. Burchell [1980] ICR 300 at p.303 setting out the three tests which an employer must satisfy in cases of dismissal for misconduct. In paragraphs 43 and 47 the Tribunal applied those tests, holding that Vega had satisfied the first and second, but not the third. Although the Tribunal does not expressly so state, it is clear it made no deduction for any contributory fault on the part of Mr Weston.

Vega's reaction to this decision was two-fold. First, it applied to the Industrial Tribunal for a review of its decision. Secondly, it served a Notice of Appeal. Service was on 8th March 1990 and so was well within the 42-day period allowed by Rule 3(1A) of the 1980 Rules.

On 16th July 1990, the Industrial Tribunal sent the parties its decision on the application for a review. In form, the decision reads as follows:-

"The unanimous decision of the Tribunal is that the decision sent to the parties on 2 February 1990 ("the Original Decision") be varied by substituting for paragraphs 43 to 47 thereof the revised paragraphs 43R to 48R set out below, and consequently by substituting for the amounts awarded to the Applicant in the Original Decision a basic award of £316.00 and a compensatory award of £2,853.18, making a total monetary award of £3,169.18, which amount the Respondent is hereby ordered to pay to the Applicant.

The recoupment regulations do not apply to the award."

In our view, it is clear that in substance the Tribunal only varied its original decision as regards the amount of compensation. It did not vary that decision as regards the finding of unfair dismissal or the implied finding of no deduction for contributory fault. However, the Tribunal did make substantial alterations to its reasons for those findings. In particular, it altered its previous finding that Vega had satisfied the second Burchell test.

Vega has not served a new Notice of Appeal against the reviewed decision. What it has done is apply by letter dated 17th December 1990 (well outside the 42-day period) for leave to amend its Notice of Appeal. The proposed amendments are largely, although not wholly, consequential upon the alterations to the Tribunal's reasoning contained in its reviewed decision, in particular the new paragraphs 43R to 48R inserted in the original decision in substitution for paragraphs 43 to 47, and the variation of the compensation awarded. The parts of the Notice of Appeal relating to compensation have been deleted (so that Vega no longer appeals on the quantum, save for its argument that there should be a deduction for contributory fault). Much of the new parts of the Notice of Appeal challenge the altered reasoning as being erroneous in point of law.

Mr Weston submitted that leave to amend should not be granted. His case in summary was that Vega should have appealed against the reviewed decision, and as the 42-day period had long since elapsed it was now too late for Vega to do so. He said the effect of allowing the proposed amendment would be tantamount to permitting Vega to appeal out of time, which would be contrary to well-settled principles outlined in Marshall v. Harland & Wolff Ltd (Practice Note) [1972] ICR 97 and referred to in the Practice Direction of 3rd March 1979.

We are unable to accept Mr Weston's submission, for the following reasons. We agree with the argument of Mr Jeans, Counsel for Vega, that there is in the legislation a clear distinction between the decision of a Tribunal on the one hand and the reasons for that decision on the other. This is well illustrated by the Appeal Tribunal's decision in Harrod v. Ministry of Defence [1981] ICR 8. The question in that case was whether, under S.136(1), Employment Protection (Consolidation) Act 1978, which provides that an appeal lies "on a question of law arising from any decision of, or arising in any proceedings before an Industrial Tribunal", the appellant could challenge one of the reasons given by the Tribunal for its decision without challenging the decision itself. It was held he could not. Further, the distinction is clearly apparent from the provisions of Rule 9 of Schedule 1 to the 1985 Rules relating to Industrial Tribunals and those of Rule 3 of the 1980 Rules relating to the Appeal Tribunal. It follows that alterations to its reasons made by an Industrial Tribunal in a review decision do not, of themselves, constitute a variation of its original decision. The original decision stands, albeit with the altered reasons and alongside the further decision not to review the original decision. Any subsisting appeal against the original decision remains on foot and there is no need to serve a Notice of Appeal in respect of the decision not to review.

If the original decision is varied on a review, then at least as regards the variation the original decision no longer subsists. There is to that extent a new substituted decision, effective only from the date of the reviewed decision. Clearly any challenge to the substituted decision must be made by a new Notice of Appeal, and the 42-day period allowed by Rule 3(1A) of the 1980 Rules starts only from the sending of the reviewed decision to the parties. Thus, in the present case, Mr Weston on 25th August 1990 served Notice of Appeal against the Industrial Tribunal's reviewed decision as regards the amount of compensation. Clearly that Notice of Appeal was served in due time, and the contrary has not been suggested.

The reviewed decision in the present case is something of a hybrid. In form, it reads as if it varies the whole of the original decision. But it could easily have been worded differently, eg by the Tribunal stating that it did not revoke or vary its decisions that there had been an unfair dismissal and that there was no contributory fault. We do not consider that the question of whether, and to what extent, the original decision remains should depend on the form of words which the Industrial Tribunal happens to have used, but on the substance of the revision. This we have analysed above as being only a revision of the decision as regards compensation.

Accordingly, in our judgment the Industrial Tribunal's original decision remains as regards the decisions that there had been an unfair dismissal and that there was no contributory fault. It follows that there was no need to serve a fresh Notice of Appeal, and Mr Weston's objection based on that premise fails.

In those circumstances, Vega's application for leave to amend its Notice of Appeal must be considered in the light of the usual principle, which is to allow any amendment unless to do so would give rise to prejudice to the other side. In cases of appeal, and particularly appeals on points of law only, such prejudice is rare, and we can see none to Mr Weston. It is obviously only right and convenient that Vega's Notice of Appeal should be amended to cover the altered reasons given in the reviewed decision. We give leave to amend.

Mr Jeans submitted that if we were of the view that Mr Weston's objection was a good one, we should in the unusual circumstances of the case nevertheless give leave to amend, for a number of reasons. In view of our decision above, it is unnecessary for us to deal with that submission.

This case is a long-outstanding matter. At the hearing before us, both parties were prepared to argue the whole appeal, but this was not practical in the time allowed. In the circumstances, we think this is an appeal which ought to be expedited, but we consider that the hearing is likely to last in the region of 2 days and to be on the safe side a third day should be reserved.