United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 691_94_2907

Appeal No. EAT/691/94, EAT/692/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 July 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D A C LAMBERT

DR P D WICKENS OBE

---

ROUNDSHAW & DISTRICT COMMUNITY ASSOCIATION          APPELLANTS

MR G COPEMAN          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR G PRICHARD

(of Counsel)

Messrs Heath Giles & Co

115 Stafford Road

Wallington

Surrey SM6 9BN

For the Respondent RESPONDENT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): There are two appeals arising from decisions of the Industrial Tribunal held at London (South) in proceedings between Mr G Copeman and his former employers, the Roundshaw & District Community Association.

The first appeal concerns the failure of the Chairman of the Tribunal to provide extended reasons for a ruling made in the initial stage of the proceedings that the Tribunal had jurisdiction to entertain Mr Copeman's claim for unfair dismissal. The second appeal arises from the decision of the Chairman to hear the rest of the case on the merits and remedy at one hearing, instead of splitting it into two separate hearings: one on merits and one on remedy.

In order to understand these unusual appeals it is necessary to go to the dispute which has arisen between the parties. Mr Copeman was employed by Roundshaw & District Community Association as a steward. He was dismissed. He says he was unfairly dismissed. He therefore presented an application to the Industrial Tribunal making that complaint on 8 October 1993. The claims was contested. The notice of appearance dated 3 December 1993 revealed that there was a dispute as to the dates of Mr Copeman's employment and, in particular, as to whether the Tribunal had jurisdiction to hear his complaint.

The point taken in opposition to the application was that Mr Copeman was not qualified to claim unfair dismissal, because he had not completed two years' continuous service in accordance with Schedule 13 of the Employment Protection (Consolidation) Act 1978. The Association's case is that Mr Copeman started work with them on 29 September 1991, not 4 July 1991, as he maintained in his application, and that the effective date of termination for unfair dismissal purposes was 2 September 1993. It is apparent from those dates that, if the Association is right, the Tribunal would have no jurisdiction.

The notice of appearance concluded by saying:

"The Applicant is therefore not eligible to bring his complaint. Save to deny unfair dismissal, the Respondent does not plead to the merits of the case at this stage and asks for the above to be dealt with by the Tribunal as a preliminary point."

A direction was given for the hearing of the question of jurisdiction. Although we have not seen all the correspondence, it does appear that the hearing started on 24 January 1994. As it was not concluded, the matter was adjourned to dates agreed for 14 and 15 April. A letter dated 28 January 1994 reminded the parties that they should come to the adjourned hearing prepared to deal with the merits of the claim, should the Tribunal accept jurisdiction. The adjourned hearing took place on 14 and 15 April. Evidence and argument on the preliminary point of jurisdiction was completed before the mid-day adjournment. The Chairman asked both representatives whether they were prepared to continue that afternoon to deal with the merits of the claim should that be necessary and that was agreed. During the afternoon the case began to be heard on the merits.

Mr Prichard, who appeared on behalf of the Association, asked for reasons to be given for the decision on the preliminary point. He asked for a written decision to be given in an extended form as soon as possible. The basis of his application was that there was a professional duty to review the case with a view to settlement. That was rendered impossible, unless the Association could take an informed view of the merits of appealing the preliminary decision.

The Chairman did not give summary reasons for the ruling on jurisdiction. Despite a written application made by letter by the Association's solicitor on 18 April 1994, he has not given extended reasons. What he did do was to write a letter in reply to that letter of 18 April and a later letter of 23 May, which included a formal request under Rule 10(4) of the 1993 Industrial Tribunal Rules. His reply on 10 June was as follows:

"1. A decision will be given in extended form under Rule 10(4)(d) of the Industrial Tribunal Rules of Procedure 1993 at the conclusion of the hearing on merits. This decision will cover issues relating to jurisdiction, merits and, if appropriate, remedies. It will be for both parties to consider at that stage whether or not to appeal the Tribunal's decision."

He went on to say in that letter that the Association:

"through their Counsel, were given full opportunity to object to the Chairman's proposal that if jurisdiction were to be accepted that the Tribunal should proceed to consider the merits of the claim."

There had been no objection to the matter proceeding on the merits.

Since that letter was written, the Association, which is dissatisfied with the decision on jurisdiction and the failure of the Tribunal Chairman to provide written extended reasons, has appealed to this Tribunal. The notice of appeal is dated 21 July 1994. The matter has been brought forward as a matter of urgency, because the adjourned hearing of the case on the merits is due to be resumed next week, on 4 August.

The grounds of appeal are that:

"The decision of the Tribunal to refuse to issue written (or any) reasons for the adverse decision on the preliminary point ... was wrong in principle. Its effect was to lock the parties into litigation on the merits with no prospect of settling the matter in an informed way, taking into account their respective legal positions at that stage."

Reference was made to the case of Meek v City of Birmingham District Council [1987] IRLR 250. The Association was left in the position, which the Court of Appeal said in that case an unsuccessful party should not be left in, that is, they had no idea why they had failed on their arguments relating to jurisdiction. The grounds of appeal complained that the Tribunal had erred in its view that, by consenting to continue to the hearing on the merits, the Association had waived their right to receive written or any reasons for the decision on the preliminary issue. The Association, argued that it:

"was entitled to expect that where there is a 'split hearing', there is no objection to the issuing of the decision on the previous point while the hearing on the subsequent point continues. Such is the ... universal practice of the Industrial Tribunal when there is a split hearing on liability and ... remedy."

It was further complained that:

"After it had been ordered that there be a preliminary hearing, there is no power in the Tribunal under Rule 10 of the ... 1993 [Rules] not to issue reasons, when the point has been decided and reasons have been requested by a party under Rule 10(4).

In default of written reasons, the alternative position was that the Tribunal had erred in not giving reasons orally at the hearing, so that the unsuccessful party could understand why its arguments had failed.

The arguments presented by Mr Prichard on behalf of the Association lead him to ask for an order of this Tribunal remitting the case to a differently constituted Tribunal for a rehearing de novo or for an order that the decision contained in the Chairman's letter of 10 June be reversed and that the proceedings be stayed until after written reasons for the jurisdiction ruling have been given. He asks also for an order that the decision of 20 July, which is a decision given by letter from the Tribunal that there be one hearing, should be reversed, and that the Tribunal should split the remainder of the hearing between liability and remedy and give written reasons at that stage for the ruling on jurisdiction and a decision on liability to include all the matters prior to dismissal affecting compensation and principle.

The Association only has a right of appeal to this Tribunal on a point of law. Unless we can find an error of law in the decisions of the Chairman of the Tribunal there is no way in which this Tribunal can make any of the orders sought on the appeal.

What is the error of law complained of? We shall deal first with the failure of the Chairman to provide reasons. It is important to note from the Chairman's letter that he has not refused to give extended reasons. All he has said is that he will give reasons at the conclusion of the hearing on the merits. In our view, he was legally entitled to make that decision. Rule 10 provides for the giving of the Tribunal's decision. It may be given orally at the end of the hearing. It may be reserved. It shall be recorded in a document signed by the Chairman. It is provided that the Tribunal shall give reasons for its decision under a document similarly signed. There are provisions for reasons to be given in summary form, except in certain circumstances. Those circumstances include where a request has been made for reasons to be given in extended form either orally at the hearing or, where a request is subsequently made in writing, by a party after the hearing of the date on which the document that I have referred to is sent to the parties. It is provided that in those circumstances the reasons shall be given in extended form.

There is nothing in Rule 10 or in any other part of the 1993 Rules which prescribes when the Tribunal shall give the reasons. They must given them, but when? Mr Prichard is case was that there was no power to postpone the giving of reasons. It is a difficult to follow that reasoning when it does not appear from the Rules that there is any duty to give reasons by a particular date.

It is also important to read Rule 10 with Rule 13, which is not referred to in Mr Prichard's otherwise helpful skeleton argument. Rule 13 contains miscellaneous powers. It provides that, subject to the provisions of the Rules, a Tribunal may regulate its own procedure. The discretion of a Tribunal to regulate its own procedure, in our view, includes power to decide when reasons will be given in an extended form. A Tribunal may exercise the discretion, if it thinks fit, to postpone the giving of reasons for a ruling made in the course of the hearing until after the whole hearing has been completed. There is nothing in the Rules which requires the Tribunal, as a matter of law, to give reasons immediately they are requested or within any set time.

As there is discretion in the matter, the only ground for appealing against the decision to delay the giving of reasons would be that such a decision was one which involved injustice or unfairness or prejudice of a kind that would lead any reasonable Tribunal to make a different decision, that is, a decision to give reasons immediately or within a reasonable time of request. What is the prejudice or unfairness resulting from the Chairman's decision to delay giving the reasons until after the end of the hearing on the merits? Mr Prichard pointed to a number of reasons. The main reason mentioned in the notice of appeal, is that the Association is, without the benefit of the reasons on the jurisdiction point, placed in an unfair position, because it finds itself locked into the litigation on the merits with no prospect of settling it until the parties or - their advisors - can take an informed decision. Mr Prichard and the Association are unable to make an informed decision until they know the reasons why they failed to convince the Tribunal that it had no jurisdiction. He pointed to possible prejudice: the fact that the attitude of the Tribunal (or its Chairman), had generated an atmosphere or animosity between the Tribunal and the Association. That was not conducive to a settlement and was another reason why the Tribunal should have given the reasons when they were requested.

We are not convinced by either of these arguments. The difficulty in settling a case, without having all the information one would like to have in order to settle it, is inherent in all settlements. Most settlements are made before a case ever gets near a Tribunal. In the nature of things, there is not full information on each side about the strengths and weaknesses of the opposite case. There are cases in which settlement takes place after the hearing and before the decision, on the basis that a party may not think that the hearing has gone as well as he hoped and he wishes to settle the case in order to avoid the possibility of an adverse decision. In our view, it is not a reasonable objection that you cannot settle a case until you have got the reasons for a decision.

As to the atmosphere that has been generated (Mr Prichard made hints of a possible grievance on the part of his client about the attitude of the Tribunal Chairman), our comment on that is that, on the material we have seen it does not seem to be reasonable to have such a grievance. It is within the Tribunal's powers to decide, as it thinks fit to, postpone the giving of the reasons to a later date. There is, in our view, no sound reason for attacking that decision as a matter of law.

The matter would be different if there was prejudice to the person, who had lost the jurisdiction point, in the form of time for appealing running against him. That is not the case here. The Association will get the reasons for the ruling on jurisdiction. If, having considered those reasons, they form the view that there is an error of law, they can appeal. If they are right, they will win the appeal. The point might, we would add, be academic anyway, because, if the hearing proceeds next week, fixed for 4 August, and the Association wins on the merits, there will be no point in them appealing about anything, jurisdiction or otherwise. They would have won the case. So there is an element of prematurity about this whole appeal.

We also take into account that the course adopted by the Tribunal at the hearing on 15 April was foreshadowed by a letter that the Tribunal expected the parties to be in a position to go on with the merits. That procedure was not objected to before the hearing on 14 and 15 April. It was not objected to at the hearing. The Association went on to present its case on the merits. What we are now faced with is a case which is part heard on the merits and will, in all likelihood, be completed on the merits next week. In those circumstances, it is unthinkable that we should accede to an appeal in which the order we are asked to make is to remit the whole case to a differently constituted Tribunal for a hearing de novo or to stay the proceedings on the merits until after written reasons have been given.

For those reasons, on the first appeal, we dismiss it because no error of law has been shown.

The second appeal can be dealt with more briefly. The complaint is that in correspondence in July, the Tribunal refused the accede to a suggestion that the adjourned hearing on 4 August should only deal with merits. The Chairman dealt with the Association's solicitor's letter of 7 July, which raised the question of a split hearing, in these terms. He said:

"The adjourned hearing on 4 August 1994 will deal with all outstanding issues relating to liability as well as remedies. The parties should be prepared to deal with all questions relating to compensation including contribution and mitigation."

Leave was given to submit an amended notice of appearance.

The Association was dissatisfied with that decision and launched another appeal to this Tribunal, dated 25 July 1994. The argument was that:

"The decision of the Tribunal to refuse to split the hearing of the merits ... into liability and remedy was wrong in principle."

The objection was repeated that it locked:

"the parties into litigation on the merits and the possibility of being ordered to pay an award with no prospect of settling the matter in an informed way."

The Association asked this Appeal Tribunal to hear that matter in connection with the appeal which we have already disposed of, but they emphasized that the second appeal was a free-standing one. It was argued that the usual course adopted is to have a separate hearing on liability and remedies. That is also our experience. The only question, therefore, is whether there was an error of law on the part of the Tribunal Chairman in refusing to have a split hearing.

We do not agree with of Mr Prichard that there was an error of law in directing that liability and remedy should be dealt with at the same hearing. It is a matter for the Chairman to decide in the exercise of his discretion. Even if the aggrieved party thought there was some ground for attacking the decision, the appropriate time to attack that decision is not by way of an interlocutory appeal, as has been launched in this case, but by appeal after there have been decisions and reasons on all aspects of the case. We wish to discourage interlocutory appeals brought on such matters over the last few weeks, on discovery, particulars, amendments and so on. They add to the delays and costs of proceedings that are meant to be expeditious and cheap. They quite often achieve nothing, except delay for the party who wants delay.

If there are grievances about the way in which the Industrial Tribunal has handled the case, they can be ventilated in an appeal after a final decision has been given on all aspects of the dispute. It is generally better to see the grievances in their proper context.

As there is no error of law in the exercise of the discretion to have a combined hearing on remedy and merits, instead of a split hearing, the second appeal is also dismissed.