United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 863_94_1409

Appeal No. EAT 863/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 September 1994

HIS HONOUR JUDGE J HICKS QC

MRS M L BOYLE

MRS R CHAPMAN

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MR G M MINETT          APPELLANT

DO IT ALL LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR KEITH DAVIS

(Representative)

Keith Davis

(Employee Relations) Ltd

Curtis House

34 Third Avenue

Hove

East Sussex

BN3 2PD


 


MR JUSTICE HICKS: Mr Minett was employed by the Respondents, Do It All Limited, and dismissed and has brought an Application before the Industrial Tribunal. The Respondents have admitted what one might call the liability issue and the only outstanding question, therefore, is what order should be made by way of reinstatement and/or compensation, Mr Minett having applied for reinstatement.

The Application was listed for hearing next Monday, 19 September, but the Respondents wrote to the Regional Office of the Industrial Tribunals, to the Regional Secretary at that office, applying in effect for an adjournment or postponement and that letter is dated 9 September.

There was some further interchanges, which I do not think we need go into in detail, but the upshot was that on 13 September, a letter was written from the Regional Office signed by a Miss H. Nolan and expressed to be on behalf of the Regional Secretary of the Tribunals, in the following terms:

"The Respondents have conceded liability, therefore the only matter outstanding is the remedy. If, as the Respondents state, they will not complete their re-organisation until November and the Applicant seeks reinstatement, then this case should be heard after November. If the Applicant seeks compensation only, then the case can proceed on 19 September 1994. Please let this office know by return of post the remedy sought".

That was addressed to Mr Minett and also to the representatives of the employers with a copy to the Conciliation Officer of ACAS.

Mr Minett wishes the matter to proceed on 19 September and has appealed against what he, not surprisingly, regarded as the decision contained in that letter.

The first question to our mind is, is there a decision of any Industrial Tribunal against which this is an appeal, because our jurisdiction is only to hear and determine appeals from Industrial Tribunals?

The relevant rules, as we understand it (and we have been most grateful for the help which Mr Davis has given us on behalf of the Respondents), are first rule 5(1) of the Industrial Tribunals Constitution and Procedure Regulations 1993, which provides that the President or a Regional Chairman shall fix the date, time and place of the hearing of the Originating Application, and that clearly had been done on 19 September, the date fixed. Then rule 13(7) provides that a Chairman [and that in the context means a Chairman of an Industrial Tribunal] may postpone the day or time fixed or adjourn any hearing. Other than academically, it is of no importance whether this application was for a postponement or an adjournment. In either event, it is clear that jurisdiction to deal with it lay with the Chairman, and it is provided by sub-rule (9) that any act required or authorised by, among others, that provision, may be done by a Tribunal or on the direction of a Chairman.

We have had enquiries made and it appears that it is possible that this letter was written on the direction of a Chairman, but it certainly does not on its face appear so. On its face it is stated to be, and expressed to be, written on behalf of the Regional Secretary of the Tribunals, and as we understand the rules the Regional Secretary has no power to deal with such an application.

The second problem about the letter is that on the face of it it is not an order for the postponement of the hearing; it is a letter which puts the possible outcome of the application in the alternative and asks for a reply, presumably from Mr Minett, as to the remedy sought. It effectively puts him into the position of having to make an election whether to abandon his application for reinstatement in order to preserve the hearing on the 19th, or to maintain his application for reinstatement at the cost of losing that appointment.

We are therefore in the position that in our judgment there is no decision of a Chairman or Tribunal which we can interfere with. That, in one sense, may be disappointing to Mr Minett, but of course the inevitable consequence is that in our view - and it can only be a view, because without jurisdiction we cannot order - but in our view, and we say this simply for the benefit of the Tribunal, the matter remains listed for hearing on Monday next, 19 September. At that hearing, the employers can of course apply for an adjournment or postponement, or perhaps one would more accurately say renew the application that they have already made in writing, and the Tribunal will be able to deal with the matter and Mr Minett will have the opportunity of making the representations on the substance of the application which he has wished to make to us. We have deliberately said nothing at all about either the grounds for the application or Mr Minett's grounds for opposition because, if we have no jurisdiction, we ought not to interfere on those matters. They can be gone into when the application is dealt with by the Tribunal.

It follows also of course that if the matter is listed on Monday and the employers make that application or renew it then, they will be at risk as to the consequences if they make it in the absence of any witnesses or other preparations which they would need should their application fail and the hearing itself proceed.

For those reasons we make no order but, as I have said, I have dealt with the matter fairly fully so that, if it is of any assistance to the Tribunal in dealing with the matter next Monday, they will have the assistance of our views on the procedural position, although we refrain from expressing any views about the substance of the application.