United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 737_93_1102

Appeal No. EAT/737/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MRS E HART

MR T C THOMAS CBE

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PIGRAM T/A FIRST BATCH BAKERY          APPELLANT

(1) MRS S BRYANS

(2) MRS J D GREEN          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR W J ROSS

(REPRESENTATIVE)

Citizens Advice Bureau

92 Pier Avenue

Clacton-on-Sea

Essex CO15 1NJ

For the First Respondent MR D BROWN

(Of Counsel)

Ms K O'Neill

Legal Officer

USDAW

188 Wilmslow Road

Fallowfield

Manchester M14 6LJ

For the Second Respondent MRS J D GREEN

(In Person)


 


MR JUSTICE WATERHOUSE: This is an appeal against the refusal of the Chairman of an Industrial Tribunal to grant a review of an earlier decision of a Tribunal held at Bury St. Edmunds on 1 February 1993. The Originating Application by the two Respondents to the Appeal that was before the Industrial Tribunal complained of unfair dismissal. The unanimous decision of the Tribunal promulgated on 26 February 1993 was that the complaints of unfair dismissal succeeded.

There was also a majority decision that there was no contributory fault in either case and appropriate awards of compensation were therefore made to each of the Respondents. No issue arises in relation to the question of compensation.

The application for a review was formulated on the Appellant's behalf by the Citizens Advice Bureau at Clacton-on-Sea and was dated 19 March 1993. It follows that the application was out of time because the Appellant was deemed to have received the decision and summary reasons of the Industrial Tribunal by 2 March 1993. Regulation 10 of the Industrial Tribunal Rules of Procedure Regulations of 1985, Schedule 1, provides that an application for a review must be made to the Secretary of the Tribunals at any time from the date of hearing until 14 days after the date on which the decision was sent to the parties. It follows that the application in this case was five days out of time. However, Regulation 13 of the same Regulations gives a power to extend any time appointed by the Rules, so that there is no doubt that the Chairman had power to extend the time and to consider the application on its merits if he chose to do so.

In the event, it appears that the Chairman did consider the matter on its merits. In stating his reasons for refusing a review in a document dated 2 April 1993 he set out the material dates and referred to the relevant rules of procedure. He went on to say in paragraph 6:

"In the review application of 19 March 1993, nothing is raised which causes me to extend time. He may have a case for complaint against his solicitors (although I certainly am not saying he does), but that is not a ground for extending the time.

7. Furthermore, if I felt there was a strong ground for review I would be more likely to extend time. However, even if time were extended, on what is put forward it would be unlikely that such a review application would succeed. I therefore decline to extend time for this review application and it is accordingly refused."

In order to understand the basis upon which the Chairman exercised his discretion, it is necessary to refer briefly to the background facts of the case.

The Appellant is a baker trading as the First Batch Bakery and it appears that he acquired the business a comparatively short time ago from its former proprietor, a Mr De'Ath. That transfer was in April 1992 and it seems that Mr De'Ath continued to take some interest in the business: he was paid a down payment and was entitled to payment of the balance of the purchase price by instalments so that he obviously had some continuing interest in the success of the business. Moreover, he did appear at the original hearing on 1 February 1993 before the Industrial Tribunal.

The two Respondents had been employed prior to the change of ownership and continued working after it had taken place. Eventually, on 23 May 1992 certain events occurred which led to the dismissal of the Respondent, Mrs Bryans, and what appears to have been the constructive dismissal of Mrs Green. Mrs Bryans was the manageress by that time and Mrs Green also worked in the shop according to the Tribunal's findings.

It is unnecessary to go into any detail about the circumstances of the dismissals. It is clear that there was a considerable dispute before the Industrial Tribunal as to what had happened and why the Appellant had taken the action that he did. According to the findings of the Tribunal, the Appellant spoke to the Respondent, Mrs Bryans, and told her that she was dismissed. The other Respondent, Mrs Green, then went to console Mrs Bryans. During the course of the conversation that followed Mrs Green said on a number of occasions, perhaps even more than ten, to the Appellant: "Are you dismissing me?" and his reply was, "You are dismissing yourself". A finding of the Tribunal was that eventually the Appellant said, "Get off the premises" to Mrs Green and she did so.

Against that background the finding of the original Tribunal was that it was not that Mrs Bryans had been dismissed. That was an agreed fact. The Tribunal was satisfied that she had been dismissed for conduct because the Appellant was dissatisfied with her attitude at work on the day in question. To that extent, therefore, the Appellant succeeded. The view of the Tribunal, however, was that the dismissal had been unfair because Mrs Bryans had never had a chance to meet the allegations against her.

In relation to Mrs Green, the finding of the Tribunal had been that there was a dismissal, in particular, by the use of the words: "Get off the premises". The Tribunal were left in a state of uncertainty as to the reason for the altercation and dismissal and, accordingly, found that the Appellant had failed to satisfy them that there was a reason within the terms of Section 57 of the Employment Protection (Consolidation) Act 1978 for the dismissal. It followed that Mrs Green, too, had been unfairly dismissed.

The Tribunal went on to consider the question of contributory fault. There was a division of opinion on that issue in relation to both the Respondents. The Chairman took the view that there had been some noise like singing about being "sacked today" and that the attitude of the Respondents, certainly of Mrs Bryans, had been awkward. He would, therefore, have reduced the award by 15% in respect of contributory fault in relation to Mrs Bryans and he applied similar reasoning in the case of Mrs Green. The majority of the Tribunal, however, were of the view that no diminution in the award was appropriate in respect of contributory fault and that majority decision prevailed.

The Appellant is said to have been dismayed by the decision of the Tribunal and its financial impact and he went to see a solicitor, whom he had previously consulted, and sought advice from him. However, the solicitor required a fee of £50 to be paid for any advice that he might tender and, in the end, the Appellant went to the Citizens Advice Bureau for advice. The visit to the solicitor had taken place on 8 March 1993, six days after the reasons and decision were deemed to have been received.

Mr Ross, who has appeared on behalf of the Appellant and who is a Citizens Advice Bureau worker, has explained that with limited staff it was not possible for him to formulate and save the application properly before 19 March 1993. He said that certain witness statements had to be obtained and there was a delay in typing. Moreover, it took some time to obtain the full picture from the Appellant because the Bureau had not been involved at any stage before 10 March 1993. It is submitted by Mr Ross, therefore, that the failure to apply within the prescribed time was readily understandable and that there was no excessive or unreasonable delay on the part of the Bureau, acting on the Appellant's behalf. Mr Ross does concede, however, that it would have been possible to put forward at least an outline application for a review, to be supplemented at the earliest possible moment by any additional material, if the Bureau had had fully in mind the prescribed period for making an application under the regulations.

In the letter that was sent on 19 March 1993 the full case for a review was set out on the Appellant's behalf and we have a copy of that document before us. The request was said to be based on five paragraphs in the letter and it is clear that what was sought was a review pursuant to the provisions of Regulation 10(1)(e), namely, on the ground that the interests of justice required such a review. Unfortunately, much of the relevant part of the letter was taken up by an account of the difficulties that the Appellant had experienced in relation to legal representation prior to the original hearing. It was pointed out that substantial sums had been demanded, particularly shortly before the hearing, by the solicitors who were acting for him. He had been unable to afford the fees and therefore had had to present his own case. It was said also that the Appellant could only read with difficulty and was unable to write at all, so that he could neither make notes nor read statements by himself.

So far as that ground of application is concerned, Mr Brown, on behalf of the Respondents has pointed out that fault on the part of a solicitor is not generally a matter that can properly be taken into account when considering an application of this kind. To the extent that a solicitor may be at fault, the Appellant's remedy lies against his solicitor. In matters such as failure to do an act in time, the client is responsible for the fault of his agent, the solicitor, in relation to a court or tribunal and cannot rely on that fault as a justification for failing to act within the prescribed period. It must also be pointed out that the Chairman had the advantage over this Appeal Tribunal of actually being present at the hearing that took place before the Tribunal on 1 February 1993 and was, therefore, in the best position to judge the extent to which the Appellant himself was articulate and able to present evidence.

The fact is that the Respondents were not legally represented at the hearing. They had the advantage of representation by their Union Representative, Mr Cockle. The Appellant attended and was supported by Mr M Newman, who was the first baker, and Mr De'Ath, the previous owner, so that he had available persons to help him and to give evidence in his support.

Reverting to the grounds of the application put before the Chairman, the fourth relevant paragraph referred to the fact that it had been anticipated that there would be some issue before the Industrial Tribunal about the length of continuous employment of the Respondents. That was obviously thought to arise because of the transfer of the undertaking to which reference has already been made. However, rightly or wrongly, the Appellant's solicitor, who did act for him in the initial proceedings prior to the original hearing before the Tribunal, had advised the Tribunal that the potential issue of continuous employment would not be contested. The Appellant complained in the letter from the Citizens Advice Bureau that he had not been told that the point had been conceded and that it had not even been raised with him by his solicitor for discussion. He went on to say, through the Bureau, that the Respondents' pay and amounts due in holiday pay had all been brought up to date by the previous owners before the Appellant took over the business, which was only eight months before the events of 23 May 1992.

Again, the problem facing the Appellant is that the solicitor had written to the Tribunal indicating that the point about continuous employment was not to be contested and the Appellant was, in effect, bound by that decision. No information is given in the letter about what was said in relation to the matter at the actual hearing before the Tribunal, so we are left to speculate about the matter. On the basis of what has been said in the course of the hearing before us, there does not appear to have been any material of substance which the Appellant could have produced to satisfy the Tribunal that the employment of the two Respondents had been broken by the transfer of the business. On the contrary, it appears that the business was transferred very much as a going concern and we would certainly not infer readily that the Appellant's solicitor had made an incorrect concession before the Tribunal hearing.

Turning finally to the events of the day in question, that is, the date of the dismissals, the comment by the Citizens Advice Bureau in paragraph 5 of their reasons for seeking a review, went as follows:

"During the events on the day in question, the Applicants [that is, the Respondents now] (for the first time) informed Mr Pigram that 'they had now joined a union' and apparently acted 'heavy handed' with this weight behind them. None of this 'taunting' and 'comment' was raised in witness examination. Mr Pigram admits that he was 'out of his depth' on this Tribunal procedure."

It is clear that the Chairman of the Tribunal was in the best possible position to decide whether or not any of the matters raised by or on behalf of the Appellant were matters which would justify a review in the interests of justice. That provision in Regulation 10 does provide a free-standing and separate ground of application for a review as appears from the plain language of the provision. It is, however, a provision of somewhat limited application because cases in which the application is made under subparagraph (e) alone fall in general into two broad categories: those in which there has been procedural mishap of one sort or another and those in which the Tribunal's decision has been undermined by events occurring shortly thereafter. That is not, of course, an exhaustive analysis of the cases which may come within Regulation 10(1)(e) but it is a generalization stated in Harvey on Industrial Relations and Employment Law in vol.4 at page X/79A, which sets out a convenient summary of the cases in which an application for a review is likely to succeed.

There is no doubt that here the Appellant was seeking in a sense to bring the case within the category of procedural mishaps on the basis that he had had unfortunate experiences with a solicitor before the hearing, leading to non-representation when the actual hearing took place, and that he had been at a serious disadvantage in the conduct of the case because of his inability to read or to write adequately. The Chairman of the Tribunal, however, knew well what had transpired at the hearing before him and appreciated fully the extent to which the events on the day of dismissal of the two Respondents had been canvassed in the evidence. It is clear from the summary statement of reasons in relation to their decision that the Tribunal did hear quite full evidence about the matter and there was no indication in the application for review of any new material of substance not before the Tribunal at the original hearing that could have been put before the Tribunal on a review. The only exception to that was the alleged reference to Union activity by the Respondents, which might have led to an amplification of the Respondents' allegations about unfair dismissal. It was open to the Chairman of the Tribunal to take the view that that additional matter about heavy-handed behaviour on the part of the Respondents and taunting comments about their new Union membership would not add anything of weight to the evidence already before the Tribunal and would not lead them to reach different conclusions on the separate issues of unfair dismissal in relation to the Respondents.

All in all, therefore, setting aside for the moment the fact that the application made by the Citizens Advice Bureau was out of time, it is clear that, on a review of the merits of the application under Regulation 10(1)(e), it was open to the Chairman on a fair view of the matter to decide that no adequate case for a review had been made out. The decision was one entirely within his discretion, provided that he exercised his discretion properly, and there is no material before this Appeal Tribunal that would justify finding either that the decision was plainly wrong or that it was based on any error by the Chairman in directing his attention to the relevant matters.

In the end, although we have some sympathy with the Appellant because of the disadvantages that he suffered in presenting his case to the Tribunal and some sympathy also in relation to his unfortunate experiences with a solicitor before then, it is impossible for this Appeal Tribunal to substitute its own discretion for that of the Chairman of the Tribunal below. We might not necessarily have exercised that discretion in the same way as the Chairman here did, but that is not the question that we have to decide on the hearing of the appeal.

The appeal is, therefore, dismissed.