United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1209_94_0512

Appeal No. EAT/1209/94

EAT/795/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th December 1995

Before

HIS HONOUR JUDGE P CLARK

MR S M SPRINGER MBE

MRS R A VICKERS

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MR CLIVE RICHARDS          APPELLANT

RAVENSWOOD FOUNDATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S MILLS

(FRU)

c/o 169 Temple Chambers

Temple Avenue

London EC4Y 0DA

For the Respondents MR D CLARK

(Personnel Representative)

IRPC Group Ltd

Stockwell House

New Buildings

Hinckley

Leicestershire

LE10 1HW


 


JUDGE CLARK: Mr Richards was employed by the Respondent, Ravenswood Foundation from 1st September 1986 until his dismissal on 20th November 1992.

Following that dismissal he complained to an Industrial Tribunal on 16th February 1993 that he had been unfairly dismissed and subjected to unlawful racial discrimination. Both complaints were resisted by the Respondent employer.

The case was originally listed for hearing on 10th November 1993 by notice dated 16th July 1993. The Respondent applied for a postponement of that hearing date by letter of 21st July 1993 and the date was vacated.

On 14th April 1994 the Tribunal notified the parties of a new date of hearing - 30th August 1994.

On 26th August 1994, a Friday, the Appellant telephoned the London (North) Tribunal Office and spoke to a clerk, Mr Galloway. He was apparently unhappy with his representative who he wished to change. He asked about an adjournment. According to him, Mr Galloway told him that postponement " is possible as long as put in writing". Mr Galloway gave the Appellant the Tribunal's fax number and at 16.20 the Appellant sent a fax which read:

"I would like to confirm the telephone conversation of this afternoon regarding the above case number.

Yesterday I was informed by chosen Council (sic) various points which made me very dissatisfied with his support or ability to present my case to my best advantage. I have decided to find alternative Council (sic), which I am unable to prior to the proposed hearing date of next Tuesday 31 August 1994.[I think that should be 30 August.]

As a result I would like a postponement of the hearing until I have been able to brief new Council (sic).

Please could you confirm the postponement and said information of a revised date as soon as possible."

No reply was received to that fax. The Tribunal office closed at 5 p.m. The next three days were holidays. The hearing was listed for 10 a.m. on 30th August 1994.

On the morning of 30th August 1994 a full tribunal, chaired by Mr P.R.K. Menon, was assembled. The Respondent attended ready to proceed. The Appellant who lives in Tottenham, did not appear.

A telephone conversation took place between the Appellant and a Tribunal clerk in which he said that he had been told by the Tribunal that the case had been postponed. No record of earlier conversation could be found on the file. The Appellant's fax of 26th August 1994 similarly was not located on 30th August 1994. The Tribunal did not believe the Appellant. They thought by not turning up he intended to present the Tribunal with a fait accompli, forcing the Industrial Tribunal to adjourn the matter.

This was an old case. The Tribunal dismissed the application due to the Appellant's failure to attend and want of prosecution.

Following receipt of the Industrial Tribunal's decision dated 7th November 1994, the Appellant telephoned the Tribunal on 10th November 1994 and spoke to a member of the tribunal staff, Mrs Lotag. That telephone call was treated by the Chairman, Mr Menon, as an application for a review of the Industrial Tribunal's decision under Rule 11 of the Industrial Tribunal Rules of Procedure. It is common ground that the Chairman was wrong in so treating it, since Rule 11(4) requires an application for a review to be put into writing. He nevertheless purported to dismiss what he took to be the Appellant's application for a review under his powers contained in Rule 11(5).

"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."

His reasons for so doing are set out in a decision dated 24th November 1994. By that stage the Appellant's fax of 26th August 1994 had turned up. The Chairman considered that fax and concluded that it did not constitute good grounds for a postponement. We should add that the fax did not bear out the Appellant's claim, reported to the Industrial Tribunal on 30th August 1994 that the case had been postponed.

Weighing up the prejudice to the Respondent of permitting the matter to proceed the Chairman indicated that he would dismiss the application for review under Rule 11(5).

By a Notice of Appeal - EAT/1209/94 ["the first appeal"] - Mr Richards appealed against both the original Tribunal decision dated 7th November 1994 and the review decision dated 24th November 1994.

That appeal came before this Tribunal (Mummery J presiding) ex parte on a preliminary hearing on 5th April 1995. On that occasion this Tribunal directed that the appeal against the review decision of 24th November 1994 be allow to proceed to a full hearing of the Employment Appeal Tribunal, and that in the meantime the Appellant should make an application for a review, together with an application for extension of time, to the Industrial Tribunal. The reason for that, we assume, is that there had been no written application for a review prior to the Chairman's decision dated 24th December 1994, and thus Rule 11(4) had not been complied with.

Secondly, the preliminary hearing in relation to the appeal against the original decision dated 7th November 1994 was stood over to the full appeal hearing of the appeal against the 24th November 1994 review decision.

On 10th April 1995 the Appellant made a written application for a review, drafted by Mr Mills of Counsel who appears before us today, as directed by the Appeal Tribunal.

That was met with a letter written on behalf of the Regional Chairman of London (North) Industrial Tribunal dated 20th April 1995. The letter incorrectly informed the Appellant that the Tribunal had no jurisdiction to entertain a further review. This was challenged by Mr Mills in a letter dated 21st April 1995, and as a result the original Chairman, Mr Menon did consider the written application for review and for the reasons set out in a decision dated 6th July 1995 he dismissed the application under Rule 11(5). Against that decision the Appellant brings his second appeal by Notice dated 11th July 1995 - EAT/795/95.

It follows that we must consider appeals against all three decisions of the tribunal.

Dealing first with the review decision dated 24th November 1994, it is, as I have said, conceded by the Respondent that that decision cannot stand since no written application was made for a review under Rule 11(4). We therefore allow that appeal and set aside that decision.

It would be convenient next to consider the appeal against the review decision dated 6th July 1995. In order to do so it is necessary to look at the material which was before the Chairman on that occasion:-

1. He had discovered, contrary to the impression gained on 30th August 1994, that the appellant had in fact telephoned the Tribunal on the afternoon of 26th August 1994 and that he had sent the fax of that date.
2. He had before him the Appellant's written application for a review dated 10th April 1995. In that document, in the chronology there set out, was an entry which read:

"26/8/94 Applicant telephoned

Mr J Galloway at Tribunal (Fri - 1620 hrs) - postponement "is possible as long as put in writing."

That quotation from Mr Galloway is repeated in paragraph 8 of the application.

The application for review was based on three alternative grounds:

3. The decision was wrongly made as a result of errors on the part of the Tribunal staff. Rule 11(1)(a).
4. That it was made in the absence of the Applicant. Rule 11(1)(c).
5. The interests of justice require a review. Rule 11(1)(e).

The Chairman dealt with those submissions in paragraph 3 of this decision which reads:

"3 It is clear that even if one were prepared to accept the Applicant's first ground, solely for the purposes of this present application, he was not told that a postponement would be or would definitely be granted or that a postponement would automatically follow on his faxing his request for a postponement: the Applicant puts it no higher than that he was told that a postponement "is possible as long as put in writing", i.e. it was a possibility, not a probability and not a certainty. In those circumstances, in my view, he acted unreasonably in assuming without further enquiry, that a postponement had been granted. As I stated in my earlier review decision, the Tribunal would not have postponed the hearing on the grounds requested in the fax (see paragraph 7 of the review decision of 24 November 1994). The other grounds advanced on the Applicant's behalf are linked to this main ground. In my opinion, the interest of justice to not require a review of the Tribunal's decision. The other grounds - i.e. that I should not have held the previous review - are academic and not relevant as I have dealt afresh with the present review application and its supporting grounds."

The grounds for appealing against the Chairman's dismissal of that review application are as follows:

First, that the Chairman misdirected himself in failing to ask himself whether the Tribunal would have dismissed the complaint on 30th August 1994 if they had seen the Appellant's fax and/or heard from the clerk, Mr Galloway.

In our judgment the Chairman was entitled to ask himself whether an adjournment would have been granted on the material contained in the fax and on the Appellant's version of what Mr Galloway had said in his review application. From that material it was open to the Tribunal to conclude that the Appellant could not himself reasonably conclude that the postponement had been granted and that it was unreasonable for him to fail to attend on 30th August 1994. That is what the Chairman did conclude in paragraph 3 of his reasons.

Secondly, the Chairman proceeded on the basis that there had been errors on the part of the Tribunal staff, but still concluded that the original decision to dismiss the complaint was not wrongly made. In our view that was a judgment which, within his discretion, he was entitled to reach.

Thirdly, Mr Mills referred us to four authorities in this Appeal Tribunal, each of which may be distinguished on its facts. This is not a case where the Appellant was prevented by illness from attending; or had not received notice of the hearing; nor in our judgment had he been misled by a member of the Tribunal staff. We regard those cases as turning on their facts; the only principle to emerge is that this Tribunal will only interfere with a Tribunal Chairman's exercise of discretion if he has misdirected himself, or if the decision is perverse. We cannot say that this decision was perverse, and we reject that alternative ground of appeal.

Finally, it is said that this was not a review application suitable for disposal under Rule 11(5). An oral hearing under Rule 11(6) was necessary to go into the factual questions. We cannot agree. Although Mr Mills now tells us that the true factual position is different from that set out in the application for review, we must proceed on the basis of the material before the Chairman on 6th July 1995. That makes it clear, on the Appellant's own account, that Mr Galloway did not say that the postponement would be granted on receipt of his fax. It was a possibility. There were thus, on the fact of it, no factual matters to be investigated.

In all the circumstances we can see no ground for interfering with the Chairman's decision dated 6th July 1995.

That leaves finally the adjourned preliminary hearing of the appeal against the original decision of 30th August 1994, contained in the reasons dated 7th November 1994. We accept that the full picture was not then before the Industrial Tribunal, but had it been, as it was before the Chairman on 6th July 1995, we cannot say that the decision to dismiss the complaint was wrong in law.

Accordingly that appeal will also be dismissed.

The result is that the Appellant's complaints stand dismissed by order of the Industrial Tribunal dated 7th November 1994.