United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 285_94_0410

Appeal No. EAT/285/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 October 1994

Before

THE HONOURABLE MR JUSTICE PILL

MR L D COWAN

MRS T MARSLAND

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TILEFIXERS (NEWCASTLE) LTD          APPELLANTS

MR B WATSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR

ON BEHALF OF THE APPELLANTS

For the Respondent MS V GAY

(of Counsel)


 


MR JUSTICE PILL: Tilefixers (Newcastle) Ltd appeal against a decision of the Industrial Tribunal held at Newcastle upon Tyne on 25 January 1994.

The Company sought to have reviewed a unanimous decision of the Tribunal given on 8 September 1993 that the Applicant, Mr Barry James Watson had been unfairly dismissed. The Tribunal had made an award of compensation in the sum of £11,754. Grounds were put forward for the review and they are set out in paragraph 3 of the Tribunal's decision, which was delivered to the parties on 23 February 1994.

The appeal of the Company has been listed for preliminary hearing. The Company have not appeared today. We are told that the appropriate notice of hearing has been sent to them. Mr. Watson is present and he is being assisted, for present purposes, by Ms Vivian Gay, as part of a trial scheme organized by the Employment Law Bar Association for unrepresented litigants.

We have considered the merits of the appeal and heard submissions from Ms Gay, because it appears to us that there should be finality and we have considered whether the matter should proceed to a full hearing. The notice of appeal states that the Tribunal had erred in law in concluding that the Company could have given the evidence about the availability of work for the Applicant at the original hearing on 8 September; that the Tribunal should have considered the Company's submission that the interests of justice required such a review and that at the original hearing on 8 September 1993 the Tribunal accepted the Applicant's evidence that there was no work available to him, whereas at the later hearing, the Applicant accepted that there was work available for him on a self-employed basis but that he chose not to apply for it. Having set out the relevant rule which permits a review in certain circumstances, rule 11(1) of the 1993 Regulations, the Tribunal considered the evidence before them and stated at paragraph 5:

"It seems to this Tribunal very plain indeed that the respondent could have given this evidence about available work at the hearing on 8 September."

The Tribunal went on to hold that the reality was that the Company were trying to have a second bite at the cherry. It should be added that in the last part of paragraph 5, the Tribunal did make a deduction which is not challenged by Mr Watson and varied the award by a deduction of £202.50 to cover work which Mr Watson had not told them that he had done prior to the hearing.

We have considered the grounds of appeal and the judgment of the Tribunal. In our judgment the Tribunal were entitled to make the decision which they did, namely, that a full review was inappropriate, that the Respondent could have given evidence about the availability of work at the first hearing but that the award should be varied to the limited extent which I have mentioned.

The central complaint appears to be that the Tribunal, having referred to paragraph (e) of rule 11(1), namely:

"the interests of justice require such a review"

did not repeat that statement when giving their conclusions at paragraph 5. We have no doubt that they have the point in mind. Equally, there is nothing in the circumstances which require in the interests of justice that there should be a review and the points at issue were fairly and properly considered by the Tribunal at their hearing on 25 January.

This appeal will be dismissed.