United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 458_95_0510

Appeal No. EAT/458/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th October 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R H PHIPPS

MR A D TUFFIN CBE

---

BOLTON WEST INDIAN ASSOCIATION          APPELLANTS

MR M MACINTOSH          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants MR P Y CLARKE

(Chairman)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at Manchester on 10th March 1995. The Tribunal decided, for summary reasons notified to the parties on 22nd March 1995, to grant an application for a review of an earlier decision in proceedings between Mr MacIntosh and the respondents, the Bolton West Indian Association Limited.

The Tribunal revoked the earlier decision given on 19th December 1994, dismissing Mr MacIntosh's claim for redundancy payment, and deciding that he was entitled to receive a payment from the Association in the sum of £1,025.00.

The Association appealed against the decision by Notice of Appeal received by the Employment Appeal Tribunal on 18th April 1995. The Notice of Appeal sets out the grounds on which it is argued that the Industrial Tribunal made an error of law in making the award to Mr MacIntosh.

On the preliminary hearing Mr Clarke, the Chair of the Association, appeared and argued that there is an error of law in the decision in this case, and that the matter should therefore go on to a full hearing of the appeal.

We have to decide whether that argument is correct. If there is no arguable error of law, then the full tribunal hearing should not take place. There would be no jurisdiction to hear an appeal which does not raise a point of law.

In order to understand Mr Clarke's argument, which has been presented clearly and comprehensively, it is necessary to examine the unfortunate history of the proceedings.

The proceedings were started by Mr MacIntosh when he presented his application to the Industrial Tribunal on 25th June 1994. He claimed that he had been employed by the Association as a manager from September 1988, that his employment had been terminated in March 1994, and that he had been made redundant. He claimed a redundancy payment.

The Association contested the proceedings. They submitted a Notice of Appearance dated 26th October 1994, signed by Mr Clarke on behalf of the Association. They disputed that he was employed under the title of a `manager'. They said he was employed under as a `centre coordinator'. There was a dispute about the start date of his employment. The Association said that Mr MacIntosh was given an opportunity to consider taking up another job with another project under the auspices of the Association. Mr MacIntosh had declined that offer.

The hearing took place, at Manchester on 19th December 1994, before a full tribunal. The Tribunal unanimously decided to dismiss the claim. According to the summary reasons for their decision, notified to the parties on 6th January 1995, Mr MacIntosh did not turn up to the hearing; he was not represented; he had not submitted any written representations in his case, except for the Originating Application.

The Tribunal were faced with substantial issues of fact between the parties which could not be resolved without hearing evidence on both sides. There was insufficient information to establish his claim, unless the claims were conceded by the respondent, which they were not. Those where the reasons why the Tribunal felt that it had no alternative but to dismiss the claim. That was a satisfactory outcome for the Association, who, through Mr Clarke, attended that hearing.

After the reasons for dismissing the claim had been notified to the parties, a letter was written to the Industrial Tribunal's regional office in Manchester by a firm of solicitors acting for Mr MacIntosh, the firm of Joe Egan, Bolton, asking for a review of the decision heard on 19th December 1994, under Rule 11 of the Industrial Tribunals Rules of Procedure. They relied on the ground that he had not received notice of the proceedings leading to the decision, and that the decision had been made in his absence. Those are grounds on which a review may be granted. The letter explained that no notification of the date of the hearing on 19th December 1994 had been received. A number of other points were made about the lack of telephone call from the Regional Office. It is not necessary to go into those details. On 23rd January 1995, a letter was sent out from the Regional Office to Mr MacIntosh's solicitors with a copy to Mr Clarke of the Association, stating that the Chairman had considered the application for a review, and had directed that it be referred to a full Tribunal on the grounds set out in Rule 11(1)(b) of the 1993 Rules. Rule 11(1)(b) is the part of the rule that gives a Tribunal power to review a decision on the ground that a party did not receive notice of the proceedings leading to the decision.

The letter dealt with a number of other points which were raised in Joe Egan's letter seeking a review. It is not necessary to refer to those. It is necessary, however, to read out in full the final paragraph of the letter:

"The date for hearing of your application for review will be sent to you shortly. If a review is granted, the Tribunal will immediately go on to consider the full merits of the application and the possible variation or revocation of the original order, and consequent rehearing of the claim. The parties should therefore attend the hearing with witnesses and any relevant documents considered necessary to the merits to be argued."

The next day, 24th January 1995, a letter was sent to Joe Egan, again with a copy to Mr Clarke, giving the name of the case and saying:

"The application for review will be heard at 9.45 am for 10.00 am on 10 March 1995."

It gives the venue in Manchester. The letter concludes:

"If the application is successful [that is the application for review] the Tribunal will proceed to consider the claim itself."

Mr Clarke faxed a reply to that, saying to the Regional Office at the address which he had been given, and he wrote, on behalf of the Association,:

"Further to your communication with regard to the above [the above was "Reference: Mr M MacIntosh"] and date set for the review.

I very much regret that I am unable to attend on the date set and would be grateful if you could let me know the outcome."

There was no application for an adjournment. It is apparent from the way the letter is worded that Mr Clarke was under the impression that he would be notified of the outcome of the review application before the matter was re-heard, if that followed from the decision of the review application.

The result was that, when the matter was heard on 10th March 1995, the position which had occurred on 19th December 1994 was reversed. Mr MacIntosh, the applicant, had not turned up to that hearing, and his claim had been dismissed. On the review application the Association had not attended, but Mr MacIntosh did. The Tribunal heard his evidence, and they made a decision to award him the redundancy payment.

The main point made by Mr Clarke on the hearing this morning, amplified the point taken in the Notice of Appeal, that the Tribunal had not followed what he described as `due process'. The Association had been unable to attend the review, and had sent in written confirmation of that fact. The Tribunal on the same day dealt not only with the review, but the case on the merits, and had come to a decision without the Association being given an opportunity to state their side before the Tribunal. That is the essence of the complaint: a decision was reached in the absence of the Association when the Tribunal had been informed by Mr Clarke that he would be unable to attend, and wanted to be notified of the outcome.

Mr Clarke submitted that it was for the Industrial Tribunal to inform him of the outcome of their decision on the application for a review. They had not done that before deciding the case on the merits. He referred to the letter of 23rd January 1995, which informed Joe Egan, the solicitors for Mr MacIntosh, that the application for a review would be referred to a full Tribunal. Mr Clark made the point that that letter was not addressed to him or the Association. It was addressed to the applicant's solicitors, with a copy to him. He says that a letter should have been addressed directly to the Association if it wished to draw to their attention the fact that, if the review was granted, the Tribunal would go on to consider the full merits of the application, and that the parties should attend the hearing with witnesses and relevant documents.

We can see how Mr Clarke came to the view, when the Tribunal informed him that the application for review would be referred to a full Tribunal, that the result of the review application would be notified to the him before they dealt with the merits. Unfortunately, we do not think that that understanding on the part of Mr Clarke can be described, by any stretch of the imagination, as an error of law on the part of the Tribunal. The question we have decide is not whether Mr Clarke's understanding of the matter was reasonable. The question we have to decide is whether the Tribunal were entitled to proceed on 10th March 1995 to deal with the application of Mr MacIntosh in the absence of the Association. In our view, they were entitled to do that, and there was no error of law on their part. They were entitled to that because they had notified the Association, through Mr Clarke, as well as Mr MacIntosh's solicitors, that, if the review was granted on 10th March 1995, they would go on immediately to consider the merits of the claim. They made it clear that there would be a re-hearing of the claim immediately following a successful application for review. They made it clear in the last sentence of the letter of 23rd January 1995, that:

"The parties [not just Mr MacIntosh] should therefore attend the hearing with witnesses and any relevant documents considered necessary to the merits to be argued."

The Tribunal did not make any error of law in proceeding with the matter in that way after they received Mr Clarke's faxed letter that he was unable to attend. He had not in that letter asked for an adjournment of the matter, if they granted the review, so that he could consider the Association's contest of the claim on the merits. We are of the view that what has happened is unfortunate. We can well understand the grievance which the Association and Mr Clarke may feel at the matter being decided on the merits in their absence. But we are unable to say, as a matter of law, that the Tribunal committed an error which would entitle the Association to succeed on this appeal. The Tribunal took all the steps that they were required by the Rules to take. They were entitled to proceed to decide the case in Mr MacIntosh's favour on 10th March 1995.

There are a number of other points raised in the Notice of Appeal, the main one being, the contention put forward in the Notice of Appearance, that a suitable alternative job had been offered to Mr MacIntosh. A point was also taken that the number of years awarded at the Tribunal review was incorrect. It was argued that Mr MacIntosh was fully aware of the funding structure of the project, and was directly involved throughout. Those are points that the Tribunal might have investigated if this matter was referred to a full hearing of the appeal. But we are unable to see any error of law on the part of the Tribunal in coming to the decision in Mr MacIntosh's favour. This appeal cannot possibly succeed. There is no point in allowing it to go forward. We will dismiss the appeal at this stage.