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Cite as: [1992] UKEAT 454_91_1211

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BAILII case number: [1992] UKEAT 454_91_1211

Appeal No. EAT/454/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 September 1992

Judgment delivered 6 October 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

Ms S CORBY

MRS M E SUNDERLAND JP

CRUGAU COLLIERY CO LTD APPELLANTS

MR D J DAVIES RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants Mr J Bowers

(of Counsel)

Messrs T Llewellyn Jones

Solicitors

Guildhall Chambers

2 Church Place, Neath

West Glamorgan

SA11 3LL

For the Respondent Mr J Walters

(of Counsel)

Messrs Robin Thompson & Partners

Solicitors

1 Fitzalan Place

Newport Road

Cardiff

CF2 1US

MR JUSTICE WOOD ...PRESIDENT) On Thursday 3rd July 1992 we allowed this appeal. We now give our reasons. By an Originating Application dated 30th January 1991 Mr Davies brought proceedings claiming a redundancy payment. He has been supported throughout by his Trade Union, the National Union of Mineworkers (NUM). The hearing of his complaint took place on 12th June 1991 before an Industrial Tribunal sitting at Cardiff. The unanimous decision of the Tribunal was that "The Applicant's application for a redundancy payment was in time and that the Tribunal has jurisdiction to hear the claim. With a view to saving time and expense the Tribunal has awarded the Applicant a redundancy payment in the sum of £3,756.63 which sum will not fall due for payment until 42 days after this decision leaves the Regional Office of the Industrial Tribunal." The reason for the latter part of that decision is to be found towards the end of the Decision where the Tribunal say -

"Because originally we dealt with the matter as a preliminary point, although the parties were not informed that such would be the case we order that there be in effect a stay of execution."

It is difficult to understand that phraseology because we have now been shown by Mr Walters a letter of 3rd May 1991 from the Industrial Tribunal to Crugau Colliery Co Ltd in paragraph 2 of which it is stated,

"It is noted that the only ground upon which you intend to resist the application is that it is made out of time. That issue will be decided, with all other necessary issues, at the Tribunal hearing in due course."

A possible explanation may be that this letter might not have been before the Industrial Tribunal at the hearing.

The Director of the Colliery company, Mr Rhys Jeffreys, who has at all times been acting on his own behalf or behalf of the Company appeared for the Company in front of the Tribunal and it is only on the appeal before us that lawyers have first been involved. The Applicant was represented by Mr Des Dutfield, the President of the South Wales Area of the NUM.

The necessity for a decision on the preliminary point as to whether the Tribunal had jurisdiction to hear the claim arose in the following way. The initial Originating Application to which we have already referred gave as the Respondent Mr Rhys Jeffreys himself. This was served on Mr Jeffreys some time shortly after the issuing of that application, the date is believed to be 18th February. By a letter of 13th March 1991 Mr Jeffreys acknowledges receipt of the papers; he returns them asking that a check should be made on the names and addresses so that they can be sent to the people concerned and says that he had never employed the Applicant. The address from which that letter is written is the same address as is given on the heading of the Company writing paper. The Industrial Tribunal wrote to the NUM on 15th March and received a reply of 19th March noting that Mr Rhys Jeffreys had signed the letter and the address was correct. By a letter of 3rd April the Industrial Tribunal asked the NUM whether Mr Jeffreys was the owner of the mine and the owner of the Limited Company. By a letter of a similar date the Industrial Tribunal wrote to Mr Jeffreys personally indicating that the NUM were bringing proceedings against him personally and that it was advisable therefore that the Originating Application should be answered by a Notice of Appearance. On 4th April the NUM wrote to the Industrial Tribunal indicating that at no time had they intended to proceed against Mr Jeffreys personally but against the Colliery company. In answer to the Tribunal's letter of 3rd April, Mr Jeffreys' on 5th April replies that he had never employed Mr Davies.

On 10th April a copy of the Originating Application is served for a second time together with a notice of Originating Application and a letter to Mr Jeffreys pointing out that his letter of 5th April was to be treated as a Notice of Appearance. On 12th April Mr Jeffreys writes

"I have received your letters of 10th April. I note that you do not intend to proceed against Mr Rhys Jeffreys in this matter. I shall now file the papers."

We have only seen one letter of 10th April. By a letter of 13th April the Company write to the Industrial Tribunal indicating that the Notice of Originating Application has been received together with an Originating Application and that the Company name appears on the former but Mr Rhys Jeffreys' name personally still remains on the Originating Application. He returned those forms so that this could be corrected. Ultimately on 22nd April 1991 an amended form of Originating Application with the Company named as Respondent is sent to the Company and a Notice of Appearance dated 23rd April is returned which raises the defence in the following words,

"The application is made outside the time-limit. During Mr Davies' employment his wages dockets have clearly shown his employer. The application has been altered. Subsequent to the letter received on 8th April 1991. The Company does not wish to consider the matter further."

Save for an initial gap of some 3 weeks, Mr Jeffreys had been prompt in dealing with correspondence, but the impression given is that he is glad to take a technical, some would say a 'clever', point, rather than facing the straightforward issues. This unhelpful attitude is to be deprecated.

The position was that the Applicant had been employed by the Colliery company. He had not been employed by Mr Rhys Jeffreys personally. There can be no doubt in anyone's mind that he intended to sue his employer and that there was no doubt about the identity of that employer. It was the Colliery company but he wrongly indicated in his initial Originating Application that Mr Rhys Jeffreys was his employer. No one was left in any doubt, no one could have been mistaken about the matter. This is a situation which arises very often before Industrial Tribunals and the name of respondent is often corrected at the full hearing of the complaint.

It is said here that the amendment in April was outside the 6 month limit allowed by S.101 of the Employment Protection (Consolidation) Act 1978 because the effective date of dismissal was 5th October 1990. The question therefore arose whether the Tribunal could properly amend the name of the Respondent from Mr Rhys Jeffreys personally to the name of his company whose shares he bought in April 1988. The Industrial Tribunal in finding that it had jurisdiction gave no reasons. In full Reasons which cover some two pages in a single paragraph, numbered 1, the Industrial Tribunal on this issue found that, "There was no substance in any part of Mr Jeffreys' representations." We are however able to discover from comments made by the learned Chairman in answer to Mr Jeffreys subsequent affidavit that reliance was placed upon Industrial Tribunal Rules 14 and 12(4) for the power to make the amendment.

Mr Bowers submits that they could not and he does so because he submits that S.101 of the 1978 Act lays down the time-limits for jurisdiction and that this was different to the situation prior to the 1975 Act when the time limitations were contained in the Rules. Secondly, he submits that the reliance placed on Rules 12(4) and 14 of the Industrial Tribunal Rules was erroneous and submits that there was no power under those Rules to make the amendment. We accept that the second point is a good point but we are perfectly satisfied that the amendment could properly be made under Rule 12(1).

We were referred by Mr Bowers to three cases. The first Coates v. Crispin Ltd [1973] ICR 413. That case in our judgment is distinguishable because the amendment was not of the parties but of the type of claim that was being made and it is clear that if a different cause of action is being introduced it must be introduced "in time".

Secondly, Cocking v. Sandhurst (Stationers Ltd) [1974] ICR 650. That case although decided before the 1975 Act and when the limitations to time was contained in the Rules, nevertheless seems to us to be material to our present consideration. The issue was whether it was appropriate to amend the name of a respondent where there were associated companies. In a reserved judgment of the Court, Sir John Donaldson, at p.654, deals specifically with the predecessors of Industrial Tribunal Rules 14 and 12(4) and expresses the view that they were inappropriate to deal with that situation. That indeed is the present situation. That Court however held that an Industrial Tribunal did have power to make an amendment such as the present under what is now Rule 12(1). Thus in Cocking the Court held that although the reasoning of that Industrial Tribunal was erroneous in law, if it had applied the correct approach in law it should and could have made the amendment. The principles involved in the approach of an Industrial Tribunal in a similar situation are clearly set out at p.656H onwards and in particular we would refer to the passage at p.657B which reads -

"(6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal shall only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against. (7) In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case."

Applying those principles to the present case we have no doubt whatsoever that the Tribunal, exercising its general control over procedure before it were entitled to make this amendment. However it is appropriate to note that the decision of the Industrial Tribunal on this preliminary issue was in fact erroneous in law, although at the time Mr Jeffreys could not have known this.

The last case is that of Watts v. Seven Kings Motor Co Ltd & Anr [1983] ICR 135. In that case this Appeal Tribunal allowed the amendment to alter the name of the respondent even after the decision had been given for the purposes of execution of the order. Mr Justice Browne-Wilkinson followed Cocking and we are content to adopt his reasoning in the present case.

It follows therefore that we are quite satisfied that it was appropriate for the Industrial Tribunal to make the amendment in the name of the Respondent although it was out of time and that the Tribunal was correct in that decision, although, as we now know, upon the wrong basis in law.

We must now turn to see what happened at the hearing. The actual hearing took no longer than 35 minutes and in the estimation of the Appellants only 25 minutes. The time between the start and the finish of the hearing, however, was more than this as the Chairman dealt with another matter that was not concerned with this case. The first issue was the amendment and whether the proceedings were in time. Mr Jeffreys asked for an adjournment so that the Company could be legally represented. He had indicated earlier in the month of June that he would seek legal representation on this issue and had not done so. The learned Chairman refused his application and we can find no fault in such a refusal. Having heard the time point and decided in favour of the Applicant, the Tribunal then proceeded to deal with the allegation of redundancy. Mr Dutfield produced a single document, namely a letter of 13th July 1990 written by Mr Jeffreys to the Applicant but with a heading from the Colliery company. The Applicant gave evidence, Mr Jeffreys did not, and the sole finding on this made by the Tribunal was as follows,

"In the light of exhibit 'A1' (that is the letter) there is no doubt that a redundancy payment was due. Mr Jeffreys was invited to accept the position but again asked for an adjournment to seek legal advice."

That application was also refused. Thereafter the payment calculation was made as indicated at the head of the Decision.

Mr Jeffreys complained about the way he was treated by the learned Chairman before the Tribunal. He has sworn an Affidavit, the relevant parts are as follows -

"6. Having reconvened the Chairman called on Mr Dutfield to present the case that led to the Originating Application and totally ignored me, he appeared rather annoyed with me.

7. Mr Davies was then sworn in and examined in chief by Mr Dutfield. He gave his evidence. When he finished his evidence the Chairman did not invite me to cross examine and basically ignored me. The Chairman then asked me if I agreed that Mr Davies was earning £183.25 and I said that he was. The Chairman did not give me an opportunity to say anything else in my defence and did not ask me if I had a defence and he just dealt with the matter assuming that I had no defence. He gave me no opportunity whatsoever to speak to present my case or to produce any of the documents copies of which I had ready in my possession. Mr Dutfield then said that the company had procrastinated in the hope of placing the applicant out of time. I replied that I had replied to all letters almost immediately and that the delay was not attributable to me.

8. The Chairman asked who the Directors of Crugau Company were and I said that I was a Director of the company.

..."

After this Mr Jeffreys had returned to his argument on time, there had been a further adjournment and then he continues at paragraph 11 -

"11 Having reconvened he said that a decision had been made on the preliminary point and the application was in time and that the tribunal had jurisdiction to deal with it and he was doing so in an effort to save time and costs. The redundancy payment had been worked out by him as being £3,756.63 and he ruled that it had not to be paid until 42 days after the formal decision was sent out. He told me that I had 42 days in which to lodge an appeal and the hearing was closed.

12. I believed when the Chairman went out that he went out to discuss the time point and I certainly never realised that he considered that he had already dealt with the case itself and dealt with the matter. The whole hearing was in my view quite extraordinary.

13. Had I been permitted to do so I would have sought to argue, through legal representation, that:-

(a) the dismissal was not by reason of redundancy but by reason of capability.

(b) that there was an offer to Mr Davies of suitable alternative employment and therefore he was not entitled to redundancy payment even if dismissed by reason of redundancy.

(c) Replacement.

..."

The learned Chairman dealt with the Affidavit paragraph by paragraph and when dealing with paragraph 6 he said this -

"6. It is my standard practice particularly where parties are not represented, to ask if they have any questions to put to witnesses. I usually add that they will have an opportunity to give their own evidence in due course, but what is required is to know whether there are any parts of the witnesses' evidence with which they do not agree and if so to put those points to them. I have no reason to believe that any different course was adopted on that day. My notes indicate that there was an opportunity for cross-examination but no questions put. Nor was any evidence given by Mr Jeffreys. He made no reference to any documents that he wished to produce. I was aware that the only ground of opposition raised in the notice of appearance was that the application was out of time, and there was some implied but unspecified criticism of the joinder of the company (under rule 14 and 12(4) of the 1985 Rules)."

The other relevant paragraphs are 12 and 13 which read as follows -

"12. I have no comment to make on this Paragraph save to say that there was no point raised in the notice of appearance as to length of service, rate of pay or the right to a redundancy payment and none was raised at the hearing.

13. The Applicant had worked for the Appellants for a period of some 31 years save for a break of a few months prior to 20 March 1972 when he recommenced work with them. As a result of his broken service his redundancy payment was calculated on 18 years' service. Mr Jeffreys gave no hint that he wanted to allege (a) that Mr Davies was then dismissed for lack of capability or (b) that he was offered alternative employment on being so dismissed."

In a letter dated 4th March 1992, Mr J E Morris, one of the lay members hearing the case before the Industrial Tribunal, said:-

"At no time, to my recollection, did Mr Jeffreys put forward any reason for dismissal other than that declared in the application."

Mr Bowers has told us that the Company would wish to raise two particular matters by way of defence to the claim. The first is that the basis for dismissal was capability and secondly that alternative employment had been offered and that in fact out of nine employees, seven had accepted the alternative employment and Mr Davies was one of the two who had refused. The other to refuse did not bring proceedings. Two new employees had now been taken on to replace Mr Davies and the other employee who left. The total number of employees was therefore the same.

Our first anxiety where this type of submission is made is whether those defences are merely afterthoughts or whether they were from the first genuine defences. It is abundantly clear from documentation that those issues were aired in correspondence during October 1990 and in particular there is a long and detailed letter of 29th October from Mr Jeffreys on Colliery company paper to Mr Dutfield in answer to his of the 26th. By a letter of 2nd November Mr Dutfield indicates that any dispute will be taken to an Industrial Tribunal for unfair dismissal or failure to pay the appropriate redundancy payment. There is also a letter of 21st January 1991 (before the issue of the Originating Application) in which Mr Jeffreys on behalf of the Colliery company is writing to the manager of the Redundancy Payments Office setting out the fact that alternative employment had been offered and saying that there had been no redundancy at the mine. It is therefore abundantly clear that the issues were well known to those representing the Applicant, and in particular the letter of 26th October should have been disclosed to the Tribunal.

We have found difficulty in tracing the chronology of the hearing but reading the Decision as best we can what happened was as follows. Initially there was an application by Mr Jeffreys for an adjournment on the time issue and this was refused. Secondly, the application proceeded and was rejected. This must have taken some minutes if properly examined because a number of documents had to be looked at and indeed it might have been thought necessary to look at some of the authorities to which we have been referred, but there is no indication that that took place. Thirdly, Mr Dutfield produced a letter dated 13th July 1990 and this was the only document produced. He did not produce the letters of 26th and 29th October. Whether that was before or after the time issue is not quite clear because of the sentence referring to it in the decision. It may be that after the document was produced there was further argument on the time issue as the decision then moves back to consideration of the relevant date of 5th October 1990. Thereafter the Applicant must have given some evidence and as the learned Chairman comments in paragraph 6 of his decision he went through his standard practice. He asked whether any questions were to be put and none was put nor was any evidence given by Mr Jeffreys. The learned Chairman was also aware, as he states, that the only ground raised in the Notice of Appearance was that the application was out of time. As no questions were asked and as Mr Jeffreys gave no evidence the Tribunal then made their finding on redundancy in the one sentence, namely "In the light of exhibit A1 there is no doubt that a redundancy payment was due".

It is accepted by the learned Chairman and the one member of the Tribunal sitting with him who has given a statement that although there was no question of loss of temper, the learned Chairman was deeply irritated by Mr Rhys Jeffreys and indeed Mr Jeffreys may be his own worst enemy. His behaviour is open to the severest criticism, and his lack of courtesy to the Tribunal was deplorable.

We are unfortunately divided in the views we take.

Ms Corby would dismiss this appeal for a number of reasons. First, in weighing the affidavit from Mr Rhys Jeffreys against the comments by the Chairman and the letter from the lay member, she prefers the Chairman's and lay member's evidence. Essentially this evidence indicates that the Tribunal behaved in a correct and judicial manner towards Mr Jeffreys.

Secondly, while she is of the view that the Tribunal should take special care to explain the issues to a litigant in person, especially where the litigant has little or no knowledge of the law, she considers that Mr Jeffreys had demonstrated some knowledge of employment law. (For instance, he said he was not Mr Davies' employer and that the application was outside the time limits - see above.) Moreover litigation in Industrial Tribunals tends essentially to follow an adversarial pattern, unlike, say, French labour courts. Given this context, it is hard to see how the Industrial Tribunal offended the principles of natural justice by not seeking out correspondence that it had no knowledge of, as neither of the parties referred to it in the oral evidence or in the IT1 or IT3. Mr Jeffreys was given an opportunity to cross-examine Mr Davies, according to the Chairman. He chose not to do so. He chose not to contest Mr Davies' claim that he was dismissed for the reason of redundancy or to put before the Tribunal correspondence suggesting that the grounds for dismissal were not redundancy. To allow the matter to be reheard would be to give the Company a second bite at the cherry. No legal system guarantees infallible judgments, only a fair hearing. Ms Corby is of the view that the Tribunal heard Mr Davies' application fairly.

She considers that the instant case is analogous to cases where the respondent does not put in an appearance at the hearing. He is often dismayed if he then finds that the case has gone against him. In such cases the Industrial Tribunal may not have all the material facts before it. It has only heard one side but that does not give rise to the grounds for a successful appeal. The respondent then, after an appeal to the EAT, cannot have a rehearing where the Tribunal acted fairly at the original hearing on the evidence before it at the time.

Mrs Sunderland and I find ourselves taking a different view. It seems to us on a reading of the Decision and upon such further information that we have been able to receive that this hearing took an exceptionally short time for the issues involved including a proper understanding of the issues on time. It is conceded that the learned Chairman became irritated - as well he may have been entitled so to do - with Mr Jeffreys and that he was also dealing with other matters during the hearing of this application. There may have been some misunderstanding as to whether or not the preliminary point only was to be taken and there is a conflict between the letter and the phraseology used towards the end of the decision. The Decision itself which is all in one paragraph does not seem to follow in chronological order and it is an indication that this whole hearing was somewhat intermittent with the issues perhaps not as clearly defined as they might have been. Once the issue of time had been decided against Mr Jeffreys then thereafter the Tribunal turned to the redundancy issue. We now know that there are valid defences which were well known to both sides from October 1990 and which clearly merit a careful examination upon issues which in fact may not be very straightforward. Mr Jeffreys was in person although representing his Company and was no doubt a stubborn and awkward litigant. It was therefore all the more important that the issues before the Tribunal should not only be clearly defined but also should have been brought to the notice of the parties and all relevant evidence directed to those issues. One of the most obvious and important every-day issues in a case of redundancy is that raised by S.82 on the question of alternative employment. It is not suggested by either side that this was asked nor indeed is it suggested that the question was put whether there was any reason why the claim should not be made. Merely to ask a person whether he wishes to give evidence when the issues are not clear may, in certain circumstances, be insufficient. When a litigant is appearing in person it is important to ensure that he or she understands the issues which are being addressed at any stage of the proceedings, whether it is time, interlocutory matters, qualifying period of employment, the substantive application or any facet of the remedies. If we may quote from a passage in the judgment of this Court presided over by Mr Justice Peter Gibson in Peter Simper & Co Ltd v. Cooke [1984] AC 349 at p.5F there is a succinct recital of the principles involved.

"We take it to be axiomatic that justice before a tribunal must not only be done, but also to be manifestly seen to be done. That applies as much in our view to a tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the tribunal but also the tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of the tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues reasonably gain the impression of bias."

Then we would stress the following sentence:

"That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the tribunal when that party has not yet presented all his evidence relevant to the point, or had the opportunity of addressing the tribunal on that evidence."

Mrs Sunderland and I therefore feel that an objective observer of these proceedings, who knew the issues involved but was not involved with either party, could well have taken the view that the learned Chairman may have allowed his irritation to cloud his duty to ensure that the issues were clear, that all parties understood those issues and that the relevant evidence was before the Tribunal. It was an understandable human error but nevertheless one which leaves us in the position of feeling that this matter really should be heard afresh. We would add that it must not be forgotten that justice must not only been seen to be done but insofar as it can be achieved should be done, and from the information now before us we are satisfied that in fact justice, insofar as it is possible to achieve it, may not have been achieved in the present case.

For these reasons this appeal was allowed and this matter will be reheard before a differently constituted Tribunal as directed by the Regional Chairman. If this preliminary issue on time had been the subject of appeal prior to the substantive hearing, we would undoubtedly have directed an amendment of the pleadings and probably discovery. Those matters will no doubt be considered by the relevant Chairman.