United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 63_94_2803

Appeal No. EAT/63/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 March 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS A MADDOCKS OBE

MR A D SCOTT

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MR J C OVERTON          APPELLANT

A BARTLETT & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE OR

REPRESENTATION BY

ON BEHALF OF THE

APPELLANT

For the Respondents NO APPEARANCE OR

REPRESENTATION BY

ON BEHALF OF THE

RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr J C Overton against a decision of the chairman of the Industrial Tribunal at Reading. We have been asked to deal with this appeal in the absence of the parties on the basis of the documents. The background to the appeal can be briefly stated. On the 28 June 1993 Mr Overton presented an application to the Industrial Tribunal complaining that he had been given twelve months notice of redundancy without prior consultation, in relation to his position as a chief executive with the Respondents, by whom he had been employed for a period beginning on the 6 December 1973, and ending on the 14 May 1993.

The Chairman of the Tribunal directed that a pre-hearing review of Mr Overton's case should be held. Mr Overton appeals against that decision. In his letter to the Industrial Tribunal on the 14 January 1994 Mr Overton acknowledged receipt of a letter of the 6 January, advising him that there would be a pre-hearing review of his case on the 8 April 1994. In the letter Mr Overton said:

"I am concerned that the procedural rules of a Review will not give me the opportunity of explaining my case to the full including calling important witnesses to support my case. There were major internal disputes between the National Officers which influenced the decision to wind-up the organisation without there being any consultation with the staff. I would, therefore, request that my case is dealt with in a full hearing of the Tribunal. Can I appeal against the decision to hold a Pre-Hearing Review?".

In the letter of the 6 January Mr Overton had been given the notice of the pre-

hearing review, pursuant to Rule 7 of the 1993 Industrial Tribunals Rules of Procedure Regulations, it was pointed out to him that no oral evidence would be given. The Tribunal would be considering the documents, that is the originating application and notice of appearance, and any representations in writing submitted, and any oral argument by or on behalf of a party.

The possible consequences of the pre-hearing review were spelt out in the letter. Mr Overton was dissatisfied with the decision to have a pre-hearing review. He wrote to this Tribunal on the 19 January, enclosing copies of the correspondence with the Reading Office of Industrial Tribunal, and asking if he was permitted to appeal against the Chairman's decision to hold a pre-hearing review.

The Respondents, when they heard that Mr Overton wished to appeal the Chairman's decision, put in a Respondents' answer in which they stated that they intended to resist Mr Overton's appeal on the grounds that the decision of the Industrial Tribunal that a pre-hearing review should be held is not capable at law of being the subject of an appeal. The Respondents answer also took the point that the appeal was misconceived. A pre-hearing review considers the contentions put forward by a party in relation to a matter required to be determined by a Tribunal. No oral evidence is taken. Written representations and any oral arguments are considered along with the contents of the originating application and the notice of appearance.

The position today is that neither party attends. Mr Overton informed the Tribunal on the telephone this morning that he does not wish to attend the hearing. He is content for the matter to be dealt with on the papers. Two points arise. The first is whether the decision of the Chairman is capable of being appealed. In our view it is. Under Section 136 of the Employment Protection (Consolidation) Act 1978 an appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, the following Acts. One of the Acts is the 1978 Act. A decision to hold a pre-hearing review is a decision which arises in proceedings before an Industrial Tribunal. Secondly, the important point to note is that an appeal can only be brought if a question of law arises. The decision whether to hold a pre-hearing review is a matter of discretion on the part of the Chairman. A discretion can only be successfully appealed if there is a question of law as to the way in which the discretion has been exercised, for example, a point of principle, or a point on the relevant factors to take into account in deciding whether there should be a review, whether irrelevant factors have been taken into account, or relevant factors have been left out of account.

We have considered the papers. We are satisfied that there is no question of law arising in this appeal. Nothing has been shown by Mr Overton to have been error of principle, or a misdirection as to relevant factors. The appeal is premature. If the pre-hearing review takes place and on that review a decision is taken which prevents Mr Overton from pursuing the case, or pursuing it in the way in which he wishes to pursue it, he may then appeal. If a decision on the pre-hearing review is that his case will proceed to a full hearing as he wishes, he will have nothing to appeal against at that stage. A full hearing will take place. If he succeeds in his claim, he will have nothing to appeal against. If he fails in his claim, that may be the appropriate time for him to bring an appeal to this Tribunal.

We therefore dismiss this appeal on the grounds that no question of law arises. The appeal is premature. Nothing more need be said.