United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 450_95_1711

Appeal No. EAT/450/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 November 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R A VICKERS

MRS P TURNER OBE

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MR G FRANCES          APPELLANT

SUNDT & CO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P REDMAN

(Solicitor)

Messrs Palmers

19 Town Square

Basildon

Essex

SS14 1BD


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal against the unanimous decision of the Industrial Tribunal held at London (North) on 7 and 25 November 1994. For the reasons explained in the decision sent to the parties on 27 April 1995, the Tribunal unanimously decided that the Applicant, Mr Francis, was unfairly dismissed by his former employers, Sundt & Co Ltd., but that he contributed to his dismissal and that it was just and equitable that the amount of the reduction in any award should be 75%. The decision contains a "reasons" section in paragraph 17 to support the Tribunal's view that Mr Francis had contributed to his dismissal, and that it would be just and equitable to reduce the award by the amount stated.

Mr Francis served a Notice of Appeal against that part of the decision on 6 February 1995, alleging that there was an error of law in that the Tribunal had made a finding of contributory fault, without giving him the opportunity of making submissions on the question of contributory fault. Contributory fault was not argued by the Respondent at the hearing and the Tribunal invited no submissions. That is the only ground we are concerned with at the moment. There are other grounds, that there was no evidence before the Tribunal on which a Tribunal could reasonably make a finding of contributory fault and had erred in reaching the 75% reduction.

Mr Redman, on behalf of Mr Francis, submitted that there is an error of law in the procedure by which the decision was reached. At the Preliminary Hearing we have to decide whether this is a reasonably arguable question of law. If it is, the case will proceed to a full hearing, at which both sides can be represented. Mr Redman's submission was that this was a case of procedural error. The Tribunal had reached the conclusion on an issue on which it had not heard or invited submissions, namely the question of contributory fault. It was wrong in law to make a finding of contributory fault, without giving Mr Francis the opportunity to make submissions on it. He says that, in law, if a Tribunal is minded to make such a finding, the correct course is to give the parties an opportunity to make submissions and call evidence. In support of his contentions, he relies on a number of cases, Mercia Rubber Mouldings Ltd v Lingwood; Hereford and Worcester County Council v Neal; Slaughter v C Brew & Sons Ltd and Ferguson v Gateway Trading Centre Ltd.

We have reached the conclusion that it is reasonably arguable that the Tribunal erred in law in reaching a decision on an issue without hearing or giving an opportunity to the parties to make submissions on that issue. Normally we would simply give a direction in those circumstances that the appeal should proceed to a full hearing. In this instance, however, we think it may be helpful to the parties and the Tribunal if we add some additional remarks. We understand that Mr Francis is legally aided. If the matter proceeds, as we have directed, to a full hearing, there will be a contested hearing in this Tribunal in, perhaps, 6 months time. If the appeal is dismissed, because we decide that there has not been an error in the procedure, that is the end of it. But if the appeal is allowed, and that is a possibility, the parties are no further forward, because, from our reading of the papers, there is no way in which the Appeal Tribunal could reach a conclusion as to whether it was a proper case for contributory fault, and if so, what the appropriate percentage was.

The only course the Appeal Tribunal could take, in allowing the appeal, is to remit the case to the Industrial Tribunal, to allow the parties to make submissions on the issue of contributory fault. The effect of proceeding in this way is that there will be public expense in the case of Mr Francis, private expense in the case of the company, and further time and delay spent in resolving this matter. It occurred to us, when we read the papers, that it would be preferable to attempt to resolve this matter by an application to the Industrial Tribunal for review. A review may be applied for under the rules of procedure in the Industrial Tribunal on a number of grounds, the appropriate one in this case being that the interests of justice require such a review. We have been told by Mr Redman that a written application was made for a review on the very ground on which this appeal is based. The Chairman refused the application on the basis that it had no reasonable prospect of success. He noted that in fact the Tribunal had heard evidence on the issue of matters relevant to contributory fault.

It occurs to us that time and expense may be saved if, through co-operation between the Appellant, the Respondent and the Tribunal, it was possible to deal with the question of contributory fault and the submissions that the parties wish to make on it, in a review hearing to be held on the same day as, but preceding, the remedies hearing, which has not yet taken place. That hearing on remedies will inevitably take place, whatever the result of this appeal. The compensation has to be assessed before a percentage reduction can be applied to it, whatever that percentage is. Time and money would be saved if this whole question were dealt with at one hearing, contributory fault and remedies, by the Industrial Tribunal. That is the only Tribunal that can resolve the question of contributory fault and compensation. All we are allowed to do is to say whether the results of cases contested in the Industrial Tribunal are made in conformity with, or in error of, law. We make it clear that this is only a suggestion. We cannot require the Chairman of the Industrial Tribunal to grant an application for review. We cannot require an absent Respondent to co-operate in such a procedure. If the absent Respondent insists, it is their right to maintain that this decision was properly arrived at and to make a submission on the hearing of the appeal that it should be dismissed, because there is no error of law. What we have said is simply intended to provide some encouragement, no more, to the parties to try and save themselves, as well as the public, further expenditure in resolving this dispute.

The only order we make today is that this matter is to proceed to a full hearing. We will make this further direction that Skeleton Arguments be exchanged at least 21 days before the hearing of the full appeal.