United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 222_95_2206

Appeal No. EAT/222/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 June 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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MISS M WALSH          APPELLANT

LONDON BOROUGH OF HAMMERSMITH & FULHAM          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Miss Margaret Walsh. The appeal arises in her dispute with the London Borough of Hammersmith & Fulham. The decision under appeal was reached by the Industrial Tribunal after a hearing on 15 December 1994. The Tribunal at London (South) unanimously decided that it was unreasonable for Miss Walsh to be reinstated or re-engaged by the London Borough of Hammersmith & Fulham. Her application for that order was dismissed. She was awarded the sum of £3,588.80 compensation. The compensation reflected an 80% contributory fault finding in the earlier decision of the Tribunal dated 9 February 1993.

The earlier decision was to the effect that Miss Walsh had been unfairly dismissed, but there was an assessment of contributory fault at 80%. The full reasons for that decision were notified to the parties on 3 March 1993. Miss Walsh did not appeal against the finding of contributory fault. The Council did not appeal against the finding of unfair dismissal. It appears that matters drifted until the later hearing in 1995. The last paragraph of the 1993 decision said it was left to the parties to see if they could agree compensation, but, if they were unable to do so within 28 days, they were to return to the Tribunal for compensation to be assessed.

The return hearing in the Tribunal was not until last December. It appears from the full reasons for that decision, notified to the parties on 19 January, that the Tribunal expressed concern that the matter was not brought back earlier after a failure to resolve the differences within 28 days. The Tribunal said that they were aware of certain correspondence which had passed between the parties. The Tribunal then dealt with the question of re-engagement and reinstatement. They observed that during the hearing Miss Walsh, who represented herself (she had been represented by Counsel at the earlier hearing), sought to re-open matters already dealt with in the earlier decision; in particular, the disciplinary hearings which took place prior to the Industrial Tribunal hearing. The Tribunal said they found it difficult to make Miss Walsh concentrate on the reasons for which she was now seeking to be reinstated or re-engaged. The Tribunal decided that it was not possible to order reinstatement. Miss Walsh had come up with nothing new which would enable them to consider either reinstatement or re-engagement. They had no alternative but to dismiss her application on those points. They then proceeded to deal with the calculation of compensation.

Miss Walsh was dissatisfied with that decision. She appealed against it in the Notice of Appeal served on 28 February. The purpose of the hearing today is to discover whether the appeal by Miss Walsh raises a reasonably arguable point of law. If there is no reasonably arguable point of law, there is no purpose in having a full hearing of this appeal. This Tribunal only has jurisdiction to deal with appeals on points of law. It is not possible to re-open the findings that the Tribunal made on the facts. It is not possible to challenge any conclusions reached without legal error. Several times during the hearing this morning, we have reminded Miss Walsh that it is not possible for her to append or to re-open, over two years after it was sent out, the decision given in 1993. As far as we are concerned and as far the Industrial Tribunal was concerned at the December 1994 hearing, the conclusions of the Tribunal on the question of unfair dismissal and contributory fault cannot be challenged at this stage. The only question is whether the Tribunal made a legal error in the exercise of discretion in relation to reinstatement and re-engagement.

The factors relevant to the exercise of discretion, are contained in Section 69, sub-section 4 and sub-section 5 of The Employment Protection (Consolidation) Act 1978. One of the factors relevant to the question of reinstatement is whether the complainant caused or contributed to some extent to the dismissal and, if so, whether in those circumstances it would be just to order reinstatement. A similar provision is contained in sub-section 6 in relation to re-engagement. In our view, on the basis of those statutory provisions, the Tribunal were entitled to take into account, in deciding whether to order reinstatement or re-engagement, the finding in the earlier decision that Miss Walsh was 80% to blame for her dismissal.

We are unable to find any legal flaw in the decision which refuses reinstatement or re- engagement. This Tribunal can only interfere with the exercise of the discretion if it is shown that there was some mis-direction about the powers of the Tribunal, some error of legal principle in the way the discretion was exercised or the production of a result reached by leaving out of account relevant factors or by taking into account irrelevant factors. We are unable to see that kind of error in this decision. In our view, there is no arguable point of law on this appeal. It will be dismissed at this stage.