United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 202_95_0412

Appeal No. EAT/202/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th December 1995

Before

HIS HONOUR JUDGE P CLARK

MR J R CROSBY

MRS T A MARSLAND

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D J STANLEY          APPELLANT

NATIONAL HOMECARE LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN PERSON

For the Respondents MR J A LLOYD

(Solicitor)

EEF West Midlands

St James's House

Frederick Road

Edgbaston

Birmingham

B15 1JJ


 


JUDGE CLARK: This appeal by Mr Stanley raises a number of procedural issues which we must resolve before we can consider the substantive complaint which is that the way in which the Bury St Edmunds Industrial Tribunal (Chairman Mr J Barnes) dealt with the calculation of Mr Stanley's compensatory award following a finding of unfair dismissal was perverse, in that the final result was contrary to the evidence.

The chronology is important.

Mr Stanley was originally employed by Serviscope on 22nd April 1991. In late 1993 the business of Serviscope was transferred to the Respondent, National Homecare Limited. Following the transfer, Mr Stanley's employment continued with the Respondent.

It appears that the Respondent sought to unilaterally impose new terms and conditions of employment on Mr Stanley. He refused to accept the new terms, and on 1st March 1994 he resigned, claiming that he had been constructively dismissed.

He commenced Industrial Tribunal proceedings by an Originating Application lodged on 4th March 1994, claiming that he been constructively dismissed and, implicitly, that his dismissal was unfair.

The matter came before the Industrial Tribunal on 29th June 1994. The Tribunal found that he had been constructively dismissed; that that dismissal was procedurally unfair due to lack of consultation, and then went on to assess compensation. It found that had proper consultation taken place he would have been fairly dismissed, and limited the compensatory award to three weeks net loss of earnings, that is £575, together with £150 compensation for loss of statutory rights. It therefore issued a recoupment notice, to which we shall return. Further it made a Basic Award of £410.00, based on 2 weeks pay for 2 years service. The Tribunal's extended reasons for its decision are contained in a document dated 23rd August 1994. ["the original decision"]

On 31st August 1994 the Appellant applied for a review of the Tribunal's decision under Rule 11 of the 1993 Tribunal Rules of Procedure (S.I. 1993 No 2687) ["The Tribunal Rules"]

That application was considered by the Chairman alone under Rule 11(5) of the Tribunal Rules, and by a decision dated 21st November 1994 ["the first review decision"] he decided that the matter should go forward to a full review hearing.

That hearing took place on 30th January 1995. In a decision dated 9th February 1995 the Tribunal dismissed the application for review ["the second review decision"].

Further, by a Certificate of Correction under Rule 10(9) of the Tribunal Rules dated 30th January 1995 the Chairman corrected an error in the calculation of the basic award which appeared in the original decision. It seems that the Tribunal overlooked Mr Stanley's age at dismissal, 42 years, and had applied a multiplier of 2 weeks pay instead of 2¹/₂ weeks. That is the only correction that was made by the Chairman.

Mr Stanley then appealed to this Tribunal by a Notice dated 15th February 1995.

A preliminary hearing was held before this Tribunal (HHJ Colin Smith Q.C. presiding) on 7th June 1995 at which it was ordered that the matter should be listed for a full hearing limited to the question of the correct calculation of the compensatory award.

The first issue to be dealt with relates to the recoupment notice. It is quite clear, and indeed accepted by the Respondent, that at paragraph 19.9 of the original decision and paragraph 1(c) of the recoupment notice attached to that decision, the Tribunal has incorrectly recorded the period of the prescribed element as being from 1st March 1994 ["the effective date of termination"] to 19th June 1994 the date of the Tribunal hearing. The correct period is three weeks from 1st March 1994, being the period to which the prescribed element relates.

In our judgment that is a matter which ought to have been dealt with under Rule 10(9) when the error in calculating the basic award was corrected.

Since the Tribunal's finding in paragraph 19.9 was plainly perverse we shall allow the appeal on this point and direct that paragraph 19.9 of the original reasons and paragraph 1(c) of the recoupment notice be corrected to read 1/3/94 to 21/3/94. We trust that the Department will account to the Appellant for the difference between the prescribed element and the benefit paid to him during that three week period.

Next, we must deal with the question of limitation raised by Mr Lloyd on behalf of the Respondent. He contends that insofar as this is an appeal against the original decision and/or the first review decision, it is out of time, and no extension of time for appealing should be permitted.

Rule 3(2) of the Employment Appeal Tribunals Rules 1993 provides:

"(2) The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended reasons for the decision or order of the industrial tribunal were sent to the appellant, ..."

Rule 37(1) provides:

"(1) The time prescribed by these Rules of by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and that date appointed for any purpose may be altered by order of the Tribunal."

We asked Mr Stanley two questions.

(1) Against which decision(s) or order(s) of the Tribunal does he appeal? and

(2) what substantive error of law does he say is contained within the relevant decision(s) or order(s)?

His answers were:

(1) against the original decision, as corrected on 30th January 1995 and against both review decisions.

(2) that the Tribunal's decision on compensation was contrary to the evidence and was perverse.

Dealing with the question of limitation in these circumstances, our judgment is that:

(1) the effect of the certificate of correction did not alter the date of promulgation of the original decision, i.e. 23rd August 1994.

(2) that the Notice of Appeal dated 15th February 1995 was therefore out of time under Rule 3(2) of the Employment Appeal Tribunal Rules 1993.

(3) this is not a case in which we should grant an extension of time for appealing under Rule 37(1). In particular, we refer to paragraph 4(g) of the Employment Appeal Tribunal Practice Direction dated 17th February 1981 with provides:

"Time for appealing runs from the date on which the document recording the decision or order of the Industrial Tribunal was sent to the appellant, notwithstanding ... an application has been made for a review."

(4) The first review decision was promulgated on 21st November 1994 and thus any appeal against that decision made on 15th February 1995 is out of time. We see no basis for extending time in this instance, but

(5) The appeal against the second review decision dated 9th February 1995 is within time.

As to the appeal against the second review, Mr Lloyd takes a further point. He submits that it is well established law that the ground for review contained in Rule 11(1)(e) of the Tribunal Rules, namely where the interests of justice require such a review, is of limited application. It cannot be used to reargue matters which were fully ventilated at the original substantive hearing in the absence of any procedural mishaps. See Trimble v Supertravel [1982] ICR 440 and Lindsay v Ironsides Ray & Vials [1994] ICR 384.

We think that this submission is well-founded.

It is clear from the way that Mr Stanley puts the substance of his complaint in this appeal that both before us and before the Industrial Tribunal by way of review, he wishes to reargue the points which were dealt with at the original Industrial Tribunal hearing. That is not permissible. Accordingly we see no grounds for interfering with the Tribunal's final decision to dismiss the application for review.

It follows that we are unable to hear Mr Stanley's substantive grounds of complaint and accordingly this appeal must be dismissed, save to the limited extent that we have allowed his appeal in relation to the Tribunal's the recoupment notice.