United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 429_94_0107

Appeal No. EAT/429/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st July 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MR R H PHIPPS

---

MR J LINSIE          APPELLANT

SOLIHULL METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant MR J LINSIE

(In Person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Chairman of the Industrial Tribunal held at Birmingham and notified on the 10th March 1994. The Chairman stated his decision as follows:

"By virtue of the power invested in me by Rule 11(5) of the Industrial Tribunals (Constitution of Rules of Procedure) Regulation 1993 the application for a Review is dismissed on the grounds that it has no reasonable prospect of success."

The application for review had been made by Mr J B Linsie, an educational psychologist, formerly employed by the Respondent to proceedings which Mr Linsie had brought against it for unfair dismissal. The Respondent was the Solihull Metropolitan Borough Council for whom Dr Linsie had done work as an educational psychologist for about 20 years prior to his dismissal on the 8th December 1989.

Mr Linsie was dissatisfied with the refusal of a review and he therefore appealed to this Tribunal by Notice of Appeal, dated 17th April 1994. The appeal was set down as a preliminary hearing so that this Tribunal could decide whether or not the Notice of Appeal raised a point of law which was reasonably arguable. This jurisdiction is confined to points of law. The purpose of the preliminary hearing procedure is to sift those cases which raise reasonably arguable points of law from those that do not. If we are satisfied that Mr Linsie's appeal raises an arguable point of law then the matter would proceed to a full contested hearing attended by the Council. If there is no arguable point of law the appeal will be dismissed now, since there is no point in the matter being pursued to a full hearing.

Mr Linsie appeared "in person" and has gone into his legal submissions in detail with the support of a detailed Notice of Appeal running to twenty-one pages and a useful outline of his arguments. He has two complaints about the proceedings. The first is that there was a procedural error on the part of the Chairman in the exercise of the review powers contained in Rule 11 of the 1993 Rules. Secondly, he has a wider argument based on the substance of the decision.

A little needs to be said about the background to the review application. Mr Linsie was dismissed from his employment with the Council on the 8th December 1989. He was subject to disciplinary charges brought against him and he instituted a complaint before the Industrial Tribunal for unfair dismissal. It is not possible for this Tribunal to go into the rights and wrongs of the disciplinary charges or of Mr Linsie's complaints of unfair dismissal for this reason. On the 9th July 1990 the Tribunal, sitting at Birmingham, recorded the agreement of the parties that the Council withdrew its disciplinary charges against Mr Linsie unconditionally. Mr Linsie withdrew his complaint before the Tribunal and accepted a sum of money to be paid to him by the Council. It was recorded that it had been agreed that the relationship of employer and employee was thereby terminated. In brief, the whole matter was settled. There was a compromise. Mr Linsie states in his outline argument, in the concluding paragraph, which summarises his grievances, that he agreed to settle following what he judges to be mistaken legal advice. He was represented at the hearing at no charge. He goes on to say:

"Having made that mistake I sought to remedy it by seeking assistance from numerous agencies over a considerable period of time - including my MP raising the matter before the House on the Adjournment."

That refers to the matter raised by Mr John Butcher MP in the House of Commons. Mr Linsie continues:

"All to no avail. My spirits were, therefore, greatly raised by the Chairman g ranting permission to hear my complaint against the Respondent - which had the potential to lead to a re-hearing of the case. But no sooner had my spirits been raised than they were again dashed down. It seems to me that the Chairman should not have granted permission for a hearing if, at the time he did so, he had any doubts about the immediate substance of my case. In my view he should have sought further evidence in clarification of my letter for December 16, 1993. But that he failed to do. As a consequence I feel that Application, once having been granted, should go forward to a formal hearing.

That is the substance of the complaint. In order to make it fully intelligible it needs to be explained by reference to the correspondence.

A letter was written by Mr Linsie to the Industrial Tribunal at Birmingham on 16th December 1993. In the letter Mr Linsie wrote:

"I seek to make an application to the Industrial Tribunal for their consideration of my unfair dismissal from my employment as an educational psychologist with Solihull Metropolitan Council. That dismissal was effected on December 8th 1989. The grounds for that dismissal was a charge of "gross misconduct". I brought that cause for my dismissal before an Industrial Tribunal the following year on July 9th 1990. [Then a reference to the Case No.].

The case was not fully heard as the Council's case effectively collapsed before the Tribunal's questioning. On the Council withdrawing its disciplinary charge against me I withdrew, on legal advice, the charge of unfair dismissal against the Council. Subsequent matters have now made it obvious that the Council now assert that my employment was terminated by the Council and that they had good reasons for doing so. An assertion which clearly reneges upon its undertaking entered into with me at the Hearing. It now seems to me that the Council, by its action, has created a new case for unfair dismissal. In relation to that new case the grounds for dismissal are not stated at all by the Council but clearly carry implications to my disadvantage and disapprobation."

It appears from that letter that the nub of Mr Linsie's concern was that he wanted the Industrial Tribunal to reconsider his case on the ground that the Council had not kept to its side of the terms in the compromise agreement.

The Regional Office of Industrial Tribunals at Birmingham replied to that letter on the 6th January 1994 stating in the second and third paragraphs as follows:

"I am directed to inform you that your letter has been treated as an Application for a Review of the Tribunal's decision of the 9th July 1990. Having regard to the nature of the complaint which you make in your letter and Paragraph One of the Decision, your Application for a Review is granted.

The matter will be listed for hearing before the Tribunal as soon as possible. The hearing will be confined to the question of whether any conduct by the Respondents since the date of hearing shows that they have not complied with Paragraph One of the Decision and, if not, whether you should be permitted to proceed with your originating application [and then there is a reference to the original case brought by Mr Linsie]."

That was an important letter in Mr Linsie's argument because he submits that the effect of that letter was that his application for a review had not been refused by the Chairman within the meaning of Rule 11(6) of the Industrial Tribunal Rules. That provides:

"If an application for review is not refused under paragraph (5) it should be heard by the tribunal which decided the case."

The substance of Mr Linsie's submission that the review decision made on the 10th March 1994 was not as the result of the hearing by the Tribunal. It was the result of the hearing by the Chairman alone. So he had been denied a formal full hearing by a Tribunal as provided for in the Rules.

Before I turn to the Rules to deal with the point of construction which Mr Linsie has raised, it is necessary to look at two further documents. The first is a letter of 10 February 1994 written to Mr Linsie by the Regional Secretary in Birmingham saying that:

"The Chairman has considered your letter of the 26 January 1994 with its many enclosures."

That was a letter from Mr Linsie setting out the basis on which he was seeking a review of the 9th July 1990 Order. The letter goes on:

"Before this matter proceeds further the Chairman has instructed me to obtain clarification of your complaint against the respondents."

He was then asked a number of questions in relation to the circumstances in which the original complaint had been settled. Mr Linsie's comments were sought.

The Chairman then gave the decision referred to and notified it on the 10th March 1994. In his decision the Chairman set out in considerable detail the history of the matter starting on the 9th July 1990 and dealing with the allegations which Mr Linsie had made of more recent conduct by the Council amounting to breach of the terms of the settlement.

We will deal first with the point on Rule 11 which provides for review of Tribunal's decisions. Rule 11(1) confers power on a tribunal on the application of a party or of its own motion to review any decision on specified grounds. The ground specified and relied on by Mr Linsie is:

"(e) the interests of justice require such a review."

The later parts of Rule 11 deal with the procedure for seeking a review. (5) provides:

"An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."

Mr Linsie relies on that Rule. He says that the letter of the 6th January did not refuse him a review. On the contrary, it granted his application for a review. The consequence is that, if one goes to Rule 11(6), he falls within that Rule because that provides that if an application for a review is not refused, (and he says it was not refused) then it shall be heard by the tribunal which decided the case or, if that is not practicable, then by a tribunal appointed to hear the case. The short point which Mr Linsie submits raises an arguable point of law is that the Chairman did not follow the provisions of the Rule. On the 6th January he granted the application for a review. He acted inconsistently with that decision in subsequently refusing the review. What he should have done would be to allow the matter to go to a full hearing before a tribunal.

In our view, the point raised by Mr Linsie is not reasonably arguable. We accept that the language of the Rule is somewhat confusing to a lay person. But when you read the Rule as a whole the scheme of the review procedure is clear. What the Tribunal Chairman did in the letter of the 6th January was not to make a decision refusing or granting a review within the meaning of 11(5). He was not in a position to do so, because he could only do so if he had formed the opinion that it had no reasonable prospect of success. That is the only ground on which he could refuse a review. He could not, at that stage, form an opinion one way or the other, because he had not been provided with all the information that he needed from Mr Linsie in order to form an opinion on the prospects of success of the application. What he did on the 6th January was well described by Mr Phipps during the course of the hearing as allowing Mr Linsie's complaint to "get into the system". It was opening the door to a possible review. It was not granting one or refusing one. What the Chairman then did, correctly in our view, was to seek information from Mr Linsie on the points identified in his January letter. Mr Linsie supplied the information. The Chairman studied it and, for the reasons set out at length in the decision of the 10th March, he refused a review having, as he expressed in the decision, formed the opinion that the review application had no reasonable prospect of success. There was, therefore, no point in the matter going before a full tribunal. The Chairman performed what is, in substance, a sifting process provided for by the Rules. If the Chairman alone thinks there is no reasonable prospect of success, there is no need to draw upon the substantial resources needed to set up a full tribunal to deal with the review. If a Chairman thinks there is a reasonable prospect of success, the Rules contemplate that a person is entitled to the full review by the tribunal.

For those reasons we have come to the conclusion that there is no arguable ground that that the Chairman misinterpreted the Rules or committed any error of law in the procedure adopted.

We can deal more shortly with the second ground. The second ground is that the Chairman was wrong in law in his conclusion that the application for review had no reasonable prospect of success. Mr Linsie said that there was evidence in the documents that the Council was asserting to third parties that he had been dismissed for gross misconduct and that was an action on the part of the Council inconsistent with the terms of the settlement and, on that basis, Mr Linsie argued, in more detail than it is necessary to set out in this decision, that the interests of justice required a review of the 9th July 1990 Order.

The fundamental difficulty in this argument, which Mr Linsie has not been able to surmount, is that the Tribunal never came to any decision on the merits of Mr Linsie's complaint or of the Council's defence. Although the document dated the 9th July 1990 is headed "Decision" it is not a decision of the Tribunal reached after hearing all the evidence and legal argument, and deciding who was right and who was wrong. All that was recorded in that document was an agreement that the parties had reached in the course of the proceedings. Mr Linsie withdrew his proceedings upon payment of a sum, upon the Council unconditionally withdrawing their disciplinary charges. A compromise reached in legal proceedings, whether before an industrial tribunal or this Tribunal or any civil court, is binding on the parties because it is an agreement and because the law encourages certainty and finality in legal compromises. There are limited grounds on which a compromise or settlement may be set aside in an action brought in the ordinary courts. Fraud is an obvious instance. Fraud undoes everything if it is proved. Misrepresentation, operative mistake, and coercion are other instances of the limited grounds on which a court may, in an action to set aside a compromise, make orders to set aside an agreement that the parties have negotiated and concluded. In our view, it is not appropriate to use the procedure that Mr Linsie has adopted in this case to ventilate a complaint that the Council have not kept the agreement. Mr Linsie argues the interests of justice require a review, because it is in the interests of justice that the tribunal should re-examine the agreement in the light of the Council's subsequent conduct in not keeping to it. If a tribunal was allowed to review compromises in such circumstances there is a grave risk that there would be no finality to compromises.

We are not in a position to give legal advice to Mr Linsie. All we can say that, if his grievance is that the Council has not observed the terms of the compromise, or if his complaint is that, in view of the Council's alleged conduct, he is no longer bound by the compromise, the proper place to ventilate that complaint is in a civil action in the ordinary courts, not by way of the review procedure. The review procedure is appropriate to deal with cases where a tribunal has actually reached a decision on the merits but not to cases where the only Order of the Tribunal is to record an agreement that the parties have made.

We have considered the detailed reasons given by the Chairman in his decision. We agree with his comments. The real difficulty in the way of granting a review is the fact that this case had been compromised. We cannot find in the decision any error of law which would justify us allowing this case to go forward to a full hearing. We dismiss the appeal.