United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 592_94_0812

Appeal No. EAT/592/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th December 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D J JENKINS MBE

MR J A SCOULLER

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ANSELLS LTD          APPELLANTS

L G WALFORD          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR J M EDGE

(SOLICITOR)

Messrs Weightman Rutherfords

Richmond House

1 Rumford Place

Liverpool L3 9QW


 


MR JUSTICE MUMMERY (PRESIDENT): On the 6th April 1994, the Industrial Tribunal held at Birmingham, heard an Application by Mr L G Walford against his former employer, Ansells Ltd.

His Application, initiated by a complaint on the 13th December 1993, was for Unfair Dismissal and for deductions and contravention of the Wages Act. The claim was resisted by Ansells. Their case was that Mr Walford had been dismissed from his employment by reason of gross misconduct. In the Notice of Appearance dated 14th January 1994 they also resisted the claim for payment of accrued holiday pay and payment in lieu of notice.

For Full Reasons notified to the parties on the 29th April 1994, the Tribunal unanimously decided that the dismissal was unfair. They also held that, on the Wages Act claim, the Applicant was entitled to four days holiday pay. Ansells appealed against that Decision by Notice of Appeal received in this Tribunal on the 8th June 1994. The grounds of appeal were that the Decision was unsupported by any findings of fact; that the Tribunal had "failed to act on or appreciate that the dismissal had been for gross misconduct arising out of what is described as `the steak incident'", that the Tribunal "substituted its own opinion as to what penalty should have been imposed on the Applicant, instead of asking itself whether the Decision to dismiss lay within the reasonable responses available to this employer" and finally, "that no reasonable Tribunal properly directing itself, could have come to the Decision [that the dismissal was unfair]".

The parties then reached an agreement. That has been the cause of some difficulty in this case. The Employment Appeal Tribunal was sent a copy of a Compromise Agreement in the following terms, that:

"I LEE GARY WALFORD accept from ANSELLS LIMITED the ex gratia sum of £3,152.50 in full and final settlement of my claim against Ansells Limited in an Industrial Tribunal at Birmingham Case No: 00386/94 for unfair dismissal ...."

Then further terms are set out. It was agreed by Mr Walford that he would consent to an order that the Appeal before the Employment Appeal Tribunal be allowed and that the Decision of the Industrial Tribunal promulgated on the 29th April 1994 be set aside. He also agreed that the agreement was a compromise agreement, which satisfied the conditions regulating Compromise Agreements under Section 140 (3) of the 1978 Act. He agreed that he had received independent legal advice from a qualified lawyer as to the terms and effect of the agreement. In particular, its effect on his ability to pursue his rights before an Industrial Tribunal. The name of the independent legal advisor is given.

Other provisions are contained relating to the payment of the sum, and the circumstances in which it may be re-payable. It is provided in Clause 5 that:

"5. The sum of £3,152.50 referred to above will be repayable if at any time after the date of this agreement I bring or continue proceedings of any nature against Ansells Limited arising out of my employment or my Contract of Employment."

It was agreed that the employment with Ansells terminated with effect from 14th September 1993.

The Tribunal was sent, by the solicitors for Ansells, a copy of a consent order, undated but signed by the solicitors on behalf of Ansells and by Mr Walford. The terms of the consent order were that the Respondents appeal be allowed, the Decision of the Industrial Tribunal promulgated on the 29th April 1994 be set aside and there would be no order as to costs.

When these documents were received in the Employment Appeal Tribunal, I directed that, if a consent order setting aside a Decision of a Industrial Tribunal was requested, the parties must attend before the full Employment Appeal Tribunal and give their reasons. Bundles were prepared for the Appeal. They included a Skeleton Argument settled by counsel.

The position today is that there was received in the Tribunal yesterday a letter from the Wolverhampton Citizens Advice Bureau dated 5th December stating:

"We are writing to inform you that this case has now been settled. Ansells Ltd have paid our client Mr Walford an agreed sum and the appeal is now not to go ahead."

In the light of that letter, Mr Walford has not attended to day and he has not been represented. Mr Edge, a solicitor from the firm representing Ansells, has attended. He has submitted that the Tribunal should make an order in the terms of the signed consent order.

He has drawn our attention to Rule 6 (5) of the Employment Appeal Tribunal Rules [1993] which provides:

"Where the respondent does not wish to resist an appeal, the parties may deliver to the Appeal Tribunal an agreed draft of an order allowing the appeal and the Tribunal may, if it thinks it right to do so, make an order allowing the appeal in the terms agreed."

Mr Edge submitted that the previous experience of his firm has been that there was no difficulty when such an agreed draft has been submitted, in securing an order from the Tribunal in terms which allow the appeal and set aside the order of the Industrial Tribunal.

Mr Edge submits that we should make an order in such circumstances today. He says that it is right to do so, because there are errors of law in the Decision of the Tribunal. In respect of that argument, he makes criticisms of the Tribunal's Decision along the lines set out in a Skeleton Argument.

The criticisms include the following. First, that the Decision did not contain any discussion of the evidence of the case put forward by the employer. We understand that part of case put forward by the employer was that Mr Walford was acting contrary to instructions in relation to what is described as the "steak incident". There is a criticism that the Tribunal refers to the employee's explanation for what he did, but contains no discussion of the evidence or detail before the Tribunal.

It was submitted that it was the employers' case before the Tribunal that the act of

Mr Walford was in contravention of food hygiene regulations and amounted to gross misconduct. No indications are given in the Tribunal's Reasons to suggest that they had addressed the employers' case. It is said that there are no findings of fact in the Tribunal. This is probably the most serious criticism contained in the Skeleton Argument in Mr Edge's submissions. In paragraph 4 and 5 of the Decision the Tribunal's approach was to substitute its own views for those of the employer, instead of applying the proper test of what was the reasonable response of a reasonable employer.

We find ourselves in a constitutional difficulty in deciding how to deal with this matter. The position is as follows: Under Section 136 of the Employment Protection Act, this Tribunal only has jurisdiction to hear appeals on questions of law, arising from a Decision or arising in any proceedings before an Industrial Tribunal.

If there is no error of law in the Decision of the Industrial Tribunal, we have no power to allow an appeal, even if the parties take the view and agree that there is an error of law.

This Tribunal follows the practice of the Court of Appeal that, in general, an appeal will not be allowed by consent. As stated in the Supreme Court Practice Vol.1 at paragraph 59/1/21.

"The Court of Appeal will not allow an appeal by consent unless it is satisfied there are good reasons for doing so. The Court of Appeal has jurisdiction to allow an appeal by consent, but it does not exercise that jurisdiction unless there are good reasons for doing so. If the consent order sought does no more than alter the relief granted, e.g. altering the quantum of damages, the percentage of contributory negligence or contribution, the terms of an injunction, or the incidence of costs, the Court of Appeal probably will make the consent order (at least if good reasons are shown why the matter cannot be dealt with by a contract of compromise). If, however, the consent order sought involves reversing the judge's decision on a point of law, the Court of Appeal will decline to make the order unless special reasons are shown. The Court of Appeal will not declare that the judge's view of the law is wrong merely because the parties consent to an order which has that effect."

This Tribunal has more limited powers than the Court of Appeal. It is confined to questions of law. Mr Edge emphasised in argument that the practice of the Employment Appeal Tribunal was different, as reflected in his firm's experience and in Rule 6(5) of the Employment Appeal Tribunal Rules.

We are not satisfied that that is so. What is made clear by Rule 6(5) is that the Tribunal has discretion to make an order allowing an Appeal if the parties agree that it should be allowed. But that discretion may only be exercised:

"If it [that is the Appeal Tribunal] thinks it right to do so."

Except in rare circumstances, it cannot be right for an Appeal Tribunal to allow an appeal and set aside a Decision of an Industrial Tribunal unless there is an error of law. The normal practice would be that, if there was an error of law, the Appeal would be allowed, the Decision would be set aside and the matter would be remitted to the Industrial Tribunal to re-hear the matter in the light of the Employment Appeal Tribunal's Ruling on the question of law.

In the present case, the Agreement reached by the parties has placed us in an impossible position. We cannot, in the circumstances, allow the Appeal, even if we were satisfied that there was an error of law and make the normal order. The normal order would be, on the Appeal being allowed, that the matter is remitted to the Industrial Tribunal. To remit this matter to the Industrial Tribunal would be a futile gesture. Courts do not knowingly make futile gestures. It would be a futile gesture, because it appears from the terms of the agreement between Mr Walford and Ansells, that he is contractually precluded from continuing the proceedings. In fact it is expressly provided, that if, having been paid the money, he continues proceedings of any nature against Ansells arising out of his employment, he will have to repay the money.

For all practical purposes, the Agreement reached between the parties prevents us from remitting the matter to an Industrial Tribunal. There are cases in which we can allow an Appeal and substitute our own decision. Those are very limited circumstances in which we are satisfied that not only is the Decision wrong in law, but there is only one possible decision in the case.

This would not be such a case. Even if we were satisfied that there was an error of law in this case, such as the error of substitution, it would not result in us substituting, for a finding of Unfair Dismissal, a finding of Fair Dismissal. The only thing we could properly do is remit to the Industrial Tribunal. For the reasons I have explained, that option is not open to us.

In the circumstances, the only order it is right to make, in the words of Rule 6(5), is that the parties, having reached a compromise and carried it out by making the payment to Mr Walford, we should make no order on the Appeal. For those reasons we decline to make the order in the terms of the consent order.