United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 317_93_1706

Appeal No. EAT/317/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 June 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(MEETING FOR DIRECTIONS)

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MR G R BIRTWISTLE          APPELLANT

EUR-O-COMPOUND (UK) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN

PERSON

For the Respondents MR P ATHERTON

(OF COUNSEL)

Messrs Latimer Lee

Solicitors

35 Bury New Road

Sedgley Park

Prestwich M25 8JY


 


MR JUSTICE MUMMERY: (PRESIDENT) This is the hearing in Chambers of seven interlocutory applications made by the Appellant, Mr G R Birtwistle. The Respondent to the appeal is his former employer, Eur-o-Compound (UK) Ltd. The interlocutory applications seek a variety of orders; an order that Eur-o-Compound be debarred from resisting the appeal, an order for the admission of certain documents on the appeal, an order for leave to amend what is described as a statement of claim dated the 5 October 1993, an order for discovery of certain information and documents in the possession of an Insurance Company, Scottish Life, and orders for the provision of further and better particulars which have been requested for the discovery of medical reports and for witness orders.

All these interlocutory applications are made by Mr Birtwistle, who appears in person, in an appeal launched in this Tribunal on the 23 April 1993. His appeal is against the Decision of the Industrial Tribunal held at Manchester on the 20 and 21 January 1993. For reasons notified to the parties on the 16 April 1993 the Industrial Tribunal unanimously rejected two claims made by Mr Birtwistle against Eur-o-Compound.

His first claim was that he had been unfairly dismissed by a letter which terminated his contract of employment, under which he had served as an expert technical sales representative of Eur-o-Compound from the beginning of September 1987. The reason given for his dismissal was long absence from work following injuries in an accident which he suffered in Saudi Arabia on the 29 October 1988, with the consequent effect that those absences and his medical condition had on his work performance.

The Tribunal dismissed that claim. When this appeal came before the Employment Appeal Tribunal, Chaired by Judge Hull QC on the 5 July 1993, the Tribunal decided that there was no arguable point of law raised on Mr Birtwistle's appeal concerning the unfair dismissal claim. He was not therefore allowed to proceed with his appeal against his failure to establish unfair dismissal. He did, however, have another claim before the Industrial Tribunal. That was a claim for unauthorised deductions in contravention of the Wages Act 1986. The Industrial Tribunal rejected his claim, which they appear to have understood, not surprisingly having regard to the form of the IT1, to have been a complaint relating to the correct amount of wages in lieu of notice in accordance with the terms and conditions of Mr Birtwistle's contract of employment.

The Tribunal said that as wages in lieu of notice do not constitute wages within the meaning of the Wages Act, they had no jurisdiction to deal with the matter. The Tribunal did explain in the course of their full reasons that they had difficulty in understanding precisely what Mr Birtwistle's complaint was. When the Employment Appeal Tribunal considered the Wages Act point on the preliminary hearing, Judge Hull and the two lay Members decided that the appeal on that point should proceed. The reason why they considered that the point should proceed was that there might be a point of law. The point of law might be that the Tribunal had misunderstood the nature of Mr Birtwistle's complaint and dealt with it without hearing relevant evidence and submissions.

As Judge Hull says in the judgment of the Tribunal, it seemed fairly clear that the Industrial Tribunal had, or may have, misunderstood the position under the Wages Act. If they had, and had consequently not heard relevant evidence or submissions, then there might be a point of law. If a person's complaint has not been properly understood and if relevant evidence has not been properly received or has been wrongly excluded, then that person would not have had the hearing to which they were entitled in law. This Tribunal would have jurisdiction to reverse the decision so reached, as being an error of law, and could remit the matter to the Industrial Tribunal for a fresh hearing to deal with the point which had not been properly adjudicated at the original hearing.

No directions were given by or sought from the Employment Appeal Tribunal at the preliminary hearing as to how the appeal should proceed. There does not seem to have been a request for the provision of Chairman's notes and the Tribunal does not seem to have thought it necessary to order them. What then happened was that the Employment Appeal Tribunal informed Eur-o-Compound of the decision on the preliminary hearing. They were notified in a standard form letter about completing a Respondent's notice. For that purpose Eur-o-Compound requested time.

Mr Birtwistle in the meantime served an elaborate document for use on the appeal. It was dated the 5 October 1993. He described it as a statement of claim in relation to the Wages Act. He set out his complaint in detail in the document. The complaint principally related to the operation of a permanent health insurance policy number 6442 which Mr Birtwistle said covered him during his illness and under which, he alleged, there had been non payment of sums which should have been paid and that therefore there had been wrongful deductions over periods of his illness. He also included a complaint that there had been unauthorised deduction of pension contributions by Eur-o-Compound from wages into an occupational retirement benefit scheme, not run by Eur-o-Compound or an associated employer.

After the grant of various extensions of time the Employment Appeal Tribunal received from Eur-o-Compound a Respondent's answer. That dealt with with the points raised by Mr Birtwistle in the document described as the statement of claim. That document has recently been amended; the amended version is dated the 14 June 1994. The Respondent, Eur-o-Compound, seeks to substitute an amended Respondents' answer for the original answer dated the 4 February 1994.

Following the service of the original answer, Mr Birtwistle started to issue the interlocutory applications which I described at the opening of this Judgment. I have read each of those applications and certain supplementary documents sent in by Mr Birtwistle to the Tribunal in the last few days. I have also read a helpful chronology prepared by Mr Atherton, who appeared as Counsel for Eur-o-Compound, together with his outline answers to the various interlocutory applications.

I read those and formed the view that it was not necessary to deal with these applications for the purposes of the appeal. I explained what I understood the position to be, to both Mr Birtwistle and to Mr Atherton. The position, as I understand it, is that the only issue which it is appropriate for the Employment Appeal Tribunal to decide on the hearing of this appeal, is whether the Industrial Tribunal held at Manchester in January 1993 erred in law in rejecting Mr Birtwistle's complaint of contravention of the Wages Act. This Tribunal at the preliminary hearing expressed the view that there was an arguable point of law. The nature of that point was an unusual one. It was not a question of statutory construction, or a misunderstanding of the law, or a question of perversity.

The point of law identified by the Employment Appeal Tribunal at the preliminary hearing was that Mr Birtwistle, who laboured under the disadvantage of representing himself, may not have adequately communicated to the Industrial Tribunal in Manchester the nature of his complaint under the Wages Act; and if he had not been able to do that, the result would be that the Industrial Tribunal in all probability failed to address evidence and submissions relevant to his true complaint. That might amount to error of law because in law a person is entitled to have his case considered and decided by a Tribunal which understands the point of the complaint and the nature of it, and consequently hears evidence and legal argument relevant to it.

The position will therefore be that on the full hearing this Tribunal will decide whether or not there was an error of that nature. If there was no error of that nature, then there is no point of law on which to appeal and Mr Birtwistle's appeal will be dismissed. If, however, there was an error of that nature, it would not be appropriate for this Tribunal to decide for the first time, by hearing evidence and argument, an issue which had never been decided by the Industrial Tribunal. To adopt such a course would be to go outside the jurisdiction of this Employment Appeal Tribunal. It would have also the consequence that, if we made an original decision, there would be no right of appeal from it to the Employment Appeal Tribunal. That is a statutory right which a disappointed litigant has.

The appropriate way of dealing with any success that Mr Birtwistle might have on the appeal would be to remit the whole case under the Wages Act to be dealt with afresh by the Industrial Tribunal. If that course were taken it would be for the Industrial Tribunal deciding the case on the merits to determine whether the various interlocutory applications taken out by Mr Birtwistle for documents and evidence were necessary for the purposes of deciding the Wages Act point. It would not be appropriate for this Tribunal to preempt the position by making orders on the applications which were not necessary for the disposal of the appeal and which might tie the hands of the Industrial Tribunal with statutory jurisdiction to decide the facts relevant to a complaint.

The course I therefore propose to take is to adjourn the interlocutory applications taken out by Mr Birtwistle to the full hearing of this appeal. If the appeal is allowed the Tribunal which hears the appeal may then direct that those applications are transferred to the Industrial Tribunal to be dealt with there. If the appeal is dismissed then it would never be relevant for this Tribunal, or any other Tribunal, to deal with them. The interlocutory applications are stood over to the full hearing of the appeal.

I direct that a date now be fixed for the mutual convenience of both parties for the hearing of the full appeal. I have considered whether it is necessary to direct Chairman's notes and decide that it is not. To award them unnecessarily would place a great imposition on the Chairman for no useful purpose. It would add to the considerable expense already incurred on these proceedings and add further, probably unnecessary, documents. The matter will be dealt with at the full hearing of the appeal on the basis of the original decision of the Industrial Tribunal, the Notice of Appeal, the Judgment given on the preliminary hearing, the draft document submitted by Mr Birtwistle and called Statement of Claim and the Respondents' amended answer.

If necessary, I give leave for the amendments to be made to that answer. Those documents alone will be sufficient to enable this Tribunal to decide whether there has been an error of law in the way that the original Wages Act complaint was handled. I also direct that, so far as is possible in the congested state of the lists, this appeal be given an early hearing. It is already eighteen months since the hearing in Manchester. It would be unfortunate if there was a long further wait for the hearing of the appeal.