United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 849_94_1810

Appeal No. EAT/849/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 October 1995

HIS HONOUR JUDGE J HULL QC

MR J H GALBRAITH CB

MR N D WILLIS

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MR A F BARLOW          APPELLANT

POST OFFICE COUNTERS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MS I SIMLER

(of Counsel)

Solicitors Office

The Post Office

Impact House

2 Eldridge Road

Croydon

CR9 1PJ


 


JUDGE J HULL QC: Mr Barlow was employed by Post Office Counters Ltd. He is a gentleman now aged 43 (if my arithmetic is correct) and he was employed by Post Office Counters as a counter clerk. His employment began on 14 March 1986 and he was made redundant on 25 September 1993. He complained, in due course, that he had been unfairly dismissed and he presented his complaint to the Industrial Tribunal.

The complaint, on the face of it, was out of time. It was not presented within three months; not until 1 March 1994; and therefore, under Section 67 of the Act, the Tribunal had to decide whether it was reasonably practicable to present it within time. On the face of it, of course it was; there was no illness or anything like that; but what was said by Mr Barlow was that the reason he had not presented it earlier was that he had been promised that if he took voluntary redundancy, he would in due course be offered a post by the Associate Organisation, Royal Mail Letters.

These facts are all set out in the decision of the Industrial Tribunal which sat to try this preliminary matter on 25 April 1994; Mr Hollow, the Chairman, sat alone as he was entitled to do at the Tribunal on that day. He gave short reasons; summary reasons as they are called and then at the request of Mr Barlow he gave extended reasons. He said in paragraph 5 of his extended reasons:

"5 The applicant gave evidence that he realised that the application was late but had been told by the respondents that he wold get a transfer to Royal Mail Letters Ltd but that this would take 6 months to be arranged. As soon as he realised he was not going to get such a transfer he consulted the CAB and presented the application. When he was made redundant his manager told him he would arrange for him to be transferred to Royal Mail Letters (RML) and that they had to take internal transfers. Relying on that assurance he signed the appropriate application for redundancy from Post Office Counters (POC) and wrote a letter on 12 June 1993 confirming that he did so on that basis. This was sent off with a transfer application to POC's Head Office then at Aldershot. At the time, the Head Office was being moved to Tunbridge Wells. In August the applicant received a further redundancy form since Head Office had not apparently been able to find the original. He completed and sent this off and asked about the transfer form that had also been lost. He was advised to fill in another transfer form which he did. ..."

So there was a chapter of accidents. And then the Chairman records:

" ... in the event he did not get any offer of alternative employment. Eventually he telephoned Tunbridge Wells in February 1994 to ask what was happening and was told that no transfer was available. He telephoned Royal Mail in Portsmouth and asked them what was happening but was told by them that he could not transfer. He then realised that the job which he claimed he had been promised never existed. He went to the Citizens Advice Bureau the same day and completed the application form straight away. ..."

And the Chairman records the history of the matter, what he was told by Mr Barlow:

"7 In cross-examination he said that he was told by Mr Brown, the branch manager of Waterlooville, that he could get a transfer. ... and was told that he would definitely be offered a post with RML. Mr Brown told him this and he was also told by other managers that he would be `alright for a transfer.' ..."

A lawyer would say, looking at that, that that was really something which should be put in writing because to be told you were "alright for a transfer" might or might not mean that you had a legal right to it, but there it is. He said that:

" ... When he was made redundant by POC he was assured that a new job with RML would be available at the end of 6 months. ..."

He repeated that so the Chairman had very clearly in mind that what Mr Barlow was saying was that this was a promise; an enforceable promise; and the Chairman said:

"8 ... He had signed the forms on the understanding that he would get a transfer. He was told, however, that he would have to wait for this to come through."

And he then sets out the evidence on the other side. He heard Mr Brown and he said:

"9 Mr Graham Brown gave evidence. ... Mr Brown spoke to Mr Donnelly, the network manager, about this. Mr Brown himself had no control over the movement of staff. Mr Brown denied telling the applicant that he could be `internally transferred' to RML. ... "

He went on:

"Nothing was said at that stage about a post with RML. ..."

Then Mr Marchant, the Retail Network Manager, also gave evidence and Mr Kevin Donnelly gave evidence. Then the Chairman said that he had seen the letter of 12 June 1993. He said this was the more important of two documents produced to him and it was written by Mr Barlow and it read:

"13 `Dear Mr Wren,

I accept the redundancy as per your letter of 7 August 1993 on the understanding that I will be transferred to Royal Mail Letters within 6 months'.

Mr Wren is apparently employed in the managerial capacity by POC [Post Office Counters]. The letter is of course entirely consistent with the applicant's evidence to me that he would not of (sic) agreed to accept voluntary redundancy unless he had the assurance of another job with RML. On the other hand, no correspondence has been produced to me to confirm that he was to be offered a job with RML. It is common ground that the applicant had completed the application form (the first of which went astray) but the respondents' case is, quite simply, that although they had suggested to him that he might apply and assisted him in completing the application forms, no promise was given. The two organisations, POC and RML, are separate ..."

So there the Chairman had set out the evidence on the one side and on the other, as of course a judge should do, and he was acting as judge here. And then he came to his conclusion:

"14. An assurance, subsequently broken, that another job would be forthcoming as the basis upon which the applicant accepted voluntary redundancy, could, in my judgment, amount to a reason why it might not be reasonably practicable for this application to have been presented within the period of 3 months. The respondents deny that any such assurance was given and it is for the applicant to establish, on the balance of probabilities, that it was. Whether or not management of POC would have been able to give any such assurance on behalf of RML, from whom the offer would be coming, is very much to be doubted and in all the circumstances I find that, despite the confident tones of the applicant's letter of 12 June 1993, he has failed to satisfy me that such an assurance was given."

That was a finding of fact by the Chairman and it was for him, and nobody else, to say that; he had heard the evidence; looked at the documents which were laid before him; heard the witnesses; and it was his duty to make up his mind which evidence he accepted and which he rejected. Having heard all the evidence and having correctly said that the burden was on Mr Barlow, he said that he was not satisfied with Mr Barlow's evidence. That is a finding of fact and on that finding the Tribunal had no jurisdiction to entertain the application because Parliament has said so.

We can interfere only if there is an error of law. It appears to us that the Chairman directed himself quite correctly on the matters of law and considered the matter in an entirely judicial way and it was therefore for him, and for him alone, to decide this question of fact.

Whether we think we would have decided the issue of fact in the same way is beside the point; whether a different Chairman or a different Tribunal might have decided the case in the same way is not the point. The point is that this Chairman, doing his duty, directing himself correctly, decided it in that way. And of course, therefore, we have no power to interfere because our powers are restricted to interfering on questions of law; if we think there has been any error of law then we interfere. We cannot find any error of law there.

Then at page 12 of our bundle Mr Barlow applied for a review. He wrote a letter on 15 July 1994 to the Tribunal saying:

"I wish to apply for a review of my case under Section 9(e) - the interests of justice require such a review. I am also able to supply a witness to back up my evidence at the original hearing. Previously they were frightened to do so. I was also at a disadvantage because I could not afford a solicitor. This time I will have one.

If I do not get a review of the case then I think that it speaks volumes for British justice."

Mr Hollow had to decide the application for a review under Rule 11(1)(e) or rather (to be accurate) he was not to decide it; he had to decide whether to dismiss it on the basis that it had no reasonable prospect of success. He could not himself carry out a review but he could, under the rules, dismiss the application. He said:

"The applicant states that there is a witness, or witnesses, who can give evidence in support of this case but that the witnesses(es) did not give evidence at the original hearing through fear or reluctance. It is not suggested that this evidence has only just become available. It would always have been open to the Applicant to compel the attendance of the witness(es) concerned by means of a witness order but he did not seek to do so. Having regard to the need for finality in litigation I refuse this application as having no reasonable prospect of success."

As a matter of law, every word written there by the Chairman is, in our view, undoubtedly correct. It is correct that the Tribunal cannot grant a review on the basis that fresh evidence is available if that evidence was available and could have been adduced at the original hearing.

It is a very important principle that litigation should be final and that people should not have "two bites of the cherry". Mr Barlow said "I did not realise that I could have issued a witness summons to compel the attendance of my witness". That, of course, is a misfortune; he could have been so advised. We do not know what the witness would have said when he had attended, assuming that he had supported Mr Barlow's account entirely; we do not know whether his evidence would have made a difference or all the difference or not; all those are matters which we cannot say anything about.

What we do know is that the Chairman had really no alternative at all to dealing with the matter in the way in which he did and therefore, we can find no error of law there at all.

So although we have to sympathise with Mr Barlow in the fact that he was not familiar with the law and practice of the Tribunal, the case which he put before the Tribunal was, it appears to us, quite fairly and properly tried and his application for "a second bite of the cherry" (if I can call it that) was quite inevitably refused.

We can find no error of law and we therefore have to dismiss the appeal and we do so.