United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 909_95_1011

Appeal No. EAT/909/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th November 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS M T PROSSER

MR J A SCOULLER

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J S PENFOLD          APPELLANT

NORFOLK COLLEGE OF ARTS AND TECHNOLOGY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

MR J S PENFOLD - THE APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr J S Penfold. He appeals against a decision of the Industrial Tribunal held at Norwich on 7th June 1995. The decision was made in a dispute between Mr Penfold and his former employers, the Norfolk College of Arts and Technology.

On 16th March 1995, Mr Penfold brought a case to the Industrial Tribunal alleging constructive unfair dismissal from his position as a audio visual technician providing a maintenance and repair service for audio and visual equipment. He set out in the originating application the details of his earnings and hours of work, and the grounds on which he claimed to have been constructively unfairly dismissed. The claim was resisted by the College. They denied that he had been dismissed. That was the case before the Industrial Tribunal on 7th June 1995. As matters turned out, the Industrial Tribunal never heard any evidence or legal argument in the case. Mr Penfold was in person. A solicitor, Mr Partridge, represented the College. For reasons explained in the decision document, sent to the parties on 24th July 1995, Mr Penfold withdrew his case and, upon its withdrawal, his application was dismissed.

The extended reasons explain in seven pages the events leading up to Mr Penfold's decision to withdraw his claim. Mr Penfold was dissatisfied with the result and appealed by Notice of Appeal served on the Appeal Tribunal on 10th August 1996. The ground on which he brought his appeal was that the Industrial Tribunal had completely misunderstood the facts outlined in his two bundles of documents. A hearing did not take, so no evidence was given to the Tribunal. He said that any person with average intelligence and a totally impartial mind could read through the documents and soon discover for themselves that the extended reasons were no more than inaccurate nonsense, and totally biased towards the College. He refers to his contract document, and to various other factors relevant to his claim. He said in conclusion that:

"If the case goes to Appeal will you please! please! advise me of what costs will be involved if any:- (a) If I win the Appeal. (b) If I lose the Appeal."

This is the preliminary hearing of the appeal to decide whether Mr Penfold's appeal raises an arguable point of law.

Under the statute which sets up the Employment Appeal Tribunal, its jurisdiction is limited. Section 136 of the Employment Protection (Consolidation) Act 1978, provides:

"(1) An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of an industrial tribunal."

There is no appeal from a question of fact. There must be a decision on which a question of law can be argued.

We pointed out to Mr Penfold that he faces a difficulty in this case that because he decided to withdraw his claim. He does not dispute that. In the extended reasons there are no findings of fact or any legal reasoning leading to a decision for or against him. All that is absent as he decided on the day that he would not go on with the case because of the risk that, if he lost, an order for costs might be made against him. He has made clear to us that that was the only reason why he did not want to go on with the case.

He made a decision not to go on when the risk as to costs was pointed out to him. The cold fact is that he must live with the consequences of his decision. There is no error of law in a decision which does not contain findings of fact or legal reasoning. The only reason his case was dismissed was because he withdrew it. If there was an error, it was not an error of the Tribunal, it was an error on the part of Mr Penfold in withdrawing his case without having it fully investigated. If he now tried to re-open it before the Industrial Tribunal, either by a new claim or by review, he would inevitably be met by the objection from the College that he was seeking to re-open a case which he had abandoned. The interests of justice do not encourage the re-opening of cases brought and then discontinued.

We are sorry if Mr Penfold feels aggrieved. We have noted that in certain respects he disagrees with the account which is given by the Chairman of the Tribunal in the extended reasons about what happened at the hearing date. We have not repeated those, because it is not necessary for us to decide a dispute there may exist about what happened, in order to reach the conclusion that this appeal does not, and cannot, raise any question of law.