Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Steward v Stewart [1996] UKEAT 1120_94_0902 (9 February 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/1120_94_0902.html
Cite as: [1996] UKEAT 1120_94_902, [1996] UKEAT 1120_94_0902
[New search] [Printable RTF version] [Help]
EAT/518/95
At the Tribunal
HIS HONOUR JUDGE P CLARK
MR J A SCOULLER
MR A D TUFFIN CBE
JUDGMENT
Revised
APPEARANCES
For the Appellant MR M DINEEN
(of Counsel)
Truman-Moore
Solicitors
Bransgore
Christchurch
Dorset
BH23 8AB
For the Respondent MR P J KIRBY
(of Counsel)
Pitman & Bazett
Solicitors
The Manor House
34 London Road
Newbury
Berkshire
RG14 1JX
JUDGE CLARK: We have before us two appeals brought by the employer, Mr Melvyn Steward, against three decisions of the Southampton Industrial Tribunal chaired by Mr M A Rich.
The first appeal (EAT/1120/94) by a Notice of Appeal received on 25th November 1994, is against:
(1) a decision that the employee, Mr Ian Stewart, had submitted a complaint of unfair dismissal in time, and that his complaint succeeded. That decision followed a hearing on 11th October 1994 and is contained in the Industrial Tribunal's extended reasons dated 18th October 1994 ["the first decision"] and
(2) a decision by the Chairman alone dated 16th November 1994, refusing the employer's application for a review ["the review decision"].
The second appeal (EAT/518/95), by a Notice of Appeal dated 2nd May 1995, is against the tribunal's findings as to remedies following a hearing held on 21st March 1995. Extended reasons for that decision ["the remedies decision"] are dated 13th April 1995.
On a preliminary matter, we are satisfied that both Notices of Appeal were in time; we granted leave to the respondent to take part in the proceedings under Rule 26 of the Employment Appeal Tribunal Rules 1993 notwithstanding that his answers were not filed in time and we gave leave to amend the answers in the form of the two pleadings misdescribed as `Amended Notice of Appearance'.
Since this appeal raises both procedural and substantive issues it is necessary for us to set out the progress of the matter in some detail.
The appellant employed the respondent at Bradley Wood Farm, Dunley, Nr Whitchurch, Hampshire as a gamekeeper. The employment commenced on 13th May 1991.
The respondent was dismissed by a letter dated 4th February 1994, but which the Industrial Tribunal found was handed to the respondent on 10th or 11th February 1994.
That letter read:
"Dear Ian,
I called out to see you on Thursday, at last I have had confirmation that Richard Smith is to stay working for the estate.
Therefore on the last in, first out principal, [sic] I reluctantly give you three weeks notice of the termination of your employment with me, from the above date.
You can remain on holiday until the 28th February and you will not be required to work out your notice.
I will pay you four weeks holiday pay and three weeks pay on the 1st March 94. Any redundancy payment will paid later.
I will out to the estate next week if you want to discuss anything, or give me a ring.
Yours sincerely,
Melvyn."
On 26th May 1994 the respondent presented a complaint to the Industrial Tribunal that his dismissal was unfair. He contended that his employment ended on 28th February 1994.
The written grounds of his complaint were as follows:
"After being told of being made redundant, I was never given no written reason why and Melvyn Steward immediately employed someone else doing exactly the same job, on the job restart scheme.
I enclose copy of redundancy notice."
In response, the appellant lodged a form IT3 on 6th July 1994. He contended that the dismissal was by reason of redundancy and indicated his intention to resist the claim. He gave the dates of employment as beginning on 13th May 1991 and ending on 25th May 1994 (see letter of 4.2.94). The final paragraph of his grounds for resistance reads:
"An inexperienced student had been taken on, on a 9 month job restart scheme. I myself am carrying out some of Ian Stewarts former duties."
On 7th July 1994 the tribunal wrote to the parties in these terms:
"The Chairman considers that under the new Rules this case may be suitable for hearing by a Chairman sitting without lay members, if the parties consent. If you consent to it being so heard, could you please notify me in writing by 21 July 1994. If your consent is not received by that date, the case will be listed for hearing by a full Tribunal."
We believe the reference to "the new Rules" was a reference to Regulation 12(2)(b) of the Industrial Tribunals (Constitution etc.) Regulations 1993 ["The 1993 Rules"].
In response to that letter both the appellant and the respondent replied, respectively on 16th and 17th July 1994, giving their consent to a hearing by a Chairman alone. The appellant wrote:
"I consent to the above case being heard by a Chairman without lay members."
On 21st July 1994 the tribunal sent out a notice of hearing to both parties headed "Case Number: 30654/94" which stated that:
"The Application of Mr I Stewart against Melvyn Steward
will be heard at the Regional Office of the Industrial Tribunals, Southampton, on Tuesday 11 October 1994 at 09:45 am or as soon thereafter as the tribunal can hear it."
Attached to the notice were notes which advised the parties as follows:
"Attendance
You may choose whether to attend or to put your case in writing instead. However, if the facts of your case are in dispute, the Tribunal may find it difficult to decide what is the truth without hearing witnesses from both sides. If you do decide to put your case in writing, you must send a copy to the Tribunal, and a copy to the other party, 7 days or more before the hearing.
...
If an application (or somebody else acting for the applicant) is due to attend a hearing, but fails to appear, the Tribunal may dismiss the application in his or her absence: similarly, the Tribunal may make an award against a respondent in his or her absence."
On 11th October 1994 the respondent attended at the tribunal offices. The appellant did not. Instead he telephoned the tribunal, and the message was relayed to the tribunal sitting on the case in these terms, set out in paragraph 3 of the first decision:
"3. By telephone call received on the morning of the hearing, the respondent [employer] indicated that he would not be attending, but that the matter was out of time; that the date on the Notice of Appearance was incorrect and that the date the employment ended should have been 25 February 1994."
In paragraph 6 of the review decision it is put in this way:
"6. On 11 October, before the hearing, a telephone call was received from the respondent [employer] in which he indicated:
(a) that he would not be attending the Tribunal; and
(b) that there was an error in his Notice of Appearance as to the termination date."
Although it had been intended, pursuant to the consent of the parties, that a Chairman alone would hear the case, on the day a full tribunal was available and the Chairman sat with two lay members. That full tribunal proceeded to hear the complaint.
As appears from the first decision the tribunal dealt first with the limitation point raised by Mr Steward over the telephone. It held that the claim was within time.
So far as the complaint of unfair dismissal itself was concerned, the tribunal heard evidence only from the respondent in the absence of the appellant. They concluded that the reason for dismissal was not redundancy, as defined in the Act, and in the absence of any alternative reason put forward in the Notice of Appearance they found the dismissal was unfair. An attempt to deal with questions of compensation was aborted, and the matter adjourned for a remedies hearing.
The first decision having been sent out to the parties on 18th October 1994, the appellant telephoned the tribunal offices the following day. We see from a letter to the Employment Appeal Tribunal written by the Industrial Tribunal secretariat on the Chairman's instructions on 9th February 1995 that the file note made by the tribunal member of staff who took that call reads as follows:
"He was confused that the whole matter had been dealt with, as he was under the impression from our letter of 7 July that we were indicating that this was a weak case and, therefore, would be heard by a Chairman alone. He was also confused by the reference to the income tax in our letter of 12 October and asked for clarification.
I asked him to put this all in writing in the form of a request for review and then I could refer it to the Chairman, but to be aware of the time limits for this."
Thereafter the appellant instructed solicitors who wrote to the tribunal on 26th October 1994 requesting a review of the first decision. That application was considered by the Chairman alone on 27th October 1994 and on 16th November 1994 the Chairman's decision ["the review decision"] was sent to the parties. He dismissed the application for review under his summary powers contained in Rule 11(5) of the 1993 Rules.
On 24th November 1994 the appellant's solicitors served the first Notice of Appeal on this tribunal. On 5th December 1994 those solicitors wrote to the Industrial Tribunal, stating that it was their intention to amend the Notice of Appearance to allege, in the alternative, as reason for dismissal some other substantial reason under Section 57(1)(b) of the 1978 Act. They also indicated that at the remedies hearing it would be their intention to advise the appellant to advance the argument that the respondent had substantially contributed to his dismissal. No particulars of that allegation were given.
On 21st March 1995 the remedies hearing took place before the same full Industrial Tribunal which had reached the first decision. In their extended reasons for the remedies decision dated 13th April 1995 the tribunal dealt with the question of contribution in this way. They say that at the first hearing they had concluded that the respondent had not contributed to his dismissal. That finding is not mentioned in the first decision. Secondly, that such a finding was `inevitable' as the tribunal was not satisfied on the evidence that the employer had established a reason for dismissal. Thirdly, we are told, that in these circumstances no argument on contribution was permitted by the Chairman at the remedies hearing. Further, the tribunal indicated that it had also concluded at the first hearing that the respondent should be compensated for one year's loss of earnings at the first hearing. Again, no mention of such a finding appears in the first decision. That this was the tribunal's approach is clear beyond doubt from their summary reasons following the remedies hearing dated 3rd April 1995. Paragraph 1 reads:
"1. This matter came before this Tribunal on 11 October 1994 when it found that the applicant had been unfairly dismissed. On that occasion, the Tribunal concluded that it would be right to compensate the applicant for a period of one year, that he had not contributed to his dismissal, but that it was unable to proceed further because of confusion over the figures."
On this basis the tribunal proceeded to calculate the compensatory award.
Against the remedies decision the second appeal is brought.
We have heard both appeals together and it will be convenient to deal with each of the points raised by Mr Dineen on behalf of the appellant in the order in which he put them before us.
The Review Decision
This decision is attacked on two grounds:
(1) that the Chairman was wrong in law to dismiss the application for a review under Rule 11(5) and/or
(2) that his decision was perverse.
It is said that the Chairman was prevented from exercising his powers under Rule 11(5) in this case on the authority of the Employment Appeal Tribunal decision in Hancock v Middleton [1982] ICR 416. In that case the applicant presented a complaint of unfair dismissal to the Industrial Tribunal and the employer entered a notice of appearance indicating his intention to resist the claim. The employer then failed to attend the hearing and a finding of unfair dismissal was made against him. The decision and the reasons for it were sent. He did not receive that decision until one month after it was posted. He applied, out of time, for a review on the grounds that he did not receive the notice of hearing, therefore had not appeared at the hearing and did not receive the decision until the time limit for applying for a review had expired. The Chairman dismissed the application under what is now Rule 11(5) of the 1993 Rules.
In allowing the employer's appeal against the Chairman's decision to dismiss the review application Neill J said this at page 419 F-H:
" In the present case Mr Hand [Counsel for the employer] submits that it cannot be right for a chairman, in circumstances where the applicant for a review is saying that he did not receive notice of the hearing and that the decision was made in his absence, to exercise his powers under rule 10 (3) [now Rule 11(5)] and to come to the conclusion that the application had no reasonable prospect of success. It seems to us that Mr Hand is right about this. The employer's contention is: "The decision has come as a total surprise as I have had no papers on this matter; I did not get notice of the proceedings leading to the decision; I did not get the decision itself until a month after it was posted and I had moved address from that which I had formerly been at." It seems to us that there is material for a tribunal to investigate to decide whether or not the matter should be reheard or whatever other order should be made. It was not, in our judgment, a case which was suitable to be dealt with by the chairman alone acting under rule 10 (3). It was a matter where the application should have been heard by the tribunal who could have then taken evidence and have decided whether or not they should alter their decision."
Our attention was also drawn to the text in Harvey on Industrial Relations and Employment Law, Volume 4, paragraph T1120-1125 which reads:
"Moreover, in a case where a party seeks a review on the grounds that he did not receive notice of the proceedings, or that the decision was made in his absence, it has been held to be inappropriate for a Chairman sitting alone to deal with the application and to conclude that it has no reasonable prospect of success; in such a situation, it is the full tribunal which should hear the application, so that evidence can be taken and the tribunal as a whole can decide whether or not to alter its decision (Hancock v. Middleton [1982] ICR 416 EAT)."
Thus, Mr Dineen submits, this Chairman was bound to refer the matter for investigation by the full tribunal under Rule 11(6). Not to do so amounted to an error of law. We reject that submission, both as a matter of law and fact.
First the law. In our judgment the passage in Harvey cited above is capable of misleading. The Employment Appeal Tribunal in Hancock did not decide that where a party seeks a review on the grounds that he did not receive notice of hearing or that the decision was made in his absence it was inappropriate for the Chairman alone to dismiss the application under Rule 11(5), rather than deal with it under Rule 11(6) by referring it to a full hearing of the Industrial Tribunal. There, the employer's application relied on a combination of no notice of hearing and non attendance at the hearing. In those circumstances the Employment Appeal Tribunal held that the Chairman's decision to dismiss the application under Rule 11(5) was a wrong exercise of his discretion and was perverse.
Rule 11(5) provides:
"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
In our judgment the Chairman has power, in a proper case, to dismiss an application for review based on one or more of the grounds set out in Rule 11(1)(a)-(e) on the basis that it has no reasonable prospect of success. Such exercise of discretion will only be interfered with on appeal where it can be shown to be perverse in the sense identified by this tribunal in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778.
As to the facts, Mr Dineen submits that here Mr Steward did not attend the first tribunal hearing held on 11th October 1994 and did not receive proper notice of that hearing. Thus the facts here are similar to those in Hancock. Again we disagree.
The way the absence of proper notice is put is this. Mr Steward complains that a combination of the reference to "the new Rules" in the Industrial Tribunal's letter dated 7th July 1994 referred to above and the information supplied at page 7 of the Department of Employment Handbook entitled "Industrial Tribunal Procedure" sent to the employer with the form IT1 completed by the applicant, misled him into believing that where both parties consented to a hearing by Chairman alone that must be a pre-hearing assessment at which he need not attend. He adds that the misconception was compounded when he telephoned the tribunal offices on the morning of the hearing of 11th October 1994 and was told that the case was being heard by a Chairman alone. In fact, a full tribunal became available that day and heard this case.
This point, made in the written application for review dated 26th October 1994, was considered by the Chairman and dealt with in paragraphs 9-11 of the Review decision extended reasons in this way:
"9. This was followed by a letter dated 26 October from the solicitors now instructed by the applicant [in fact the employer] seeking a Review, on the basis that the respondent believed that the Notice sent to him on 21 July was for a Pre-Hearing Review and that it was unnecessary for him to attend the hearing. The argument is developed on the basis that the respondent, having read the Industrial Tribunal booklet, believed that the reference to new rules meant it was to be a Pre-Hearing Review.
10. I find it difficult, if not impossible, to accept the respondent's contention that the letter of 7 July could have misled him. The position was quite clear. He was asked to give his consent and it should be noted significantly that the letter stated what would happen if consent was not forthcoming. In my view, that ground does not support an Application for Review.
11. The letter also contends that the respondent only gave the information on the telephone because he was of the opinion that the Tribunal was only going to consider whether the application had been made within time. There is no way that the respondent could have been under any misapprehension on that score. There is nothing to indicate that the Tribunal would be hearing any preliminary issue. The respondent did raise the matter of out of time on his Notice of Appearance, and I duly dealt with that, as can be seen from the Decision, and any Review to open that aspect is, in my view, doomed to failure on the findings I made in that Decision."
In our judgment the Chairman was entitled to reach those conclusions. The Handbook sent to the appellant does not bear a date. Reading through it we think that it was probably published in 1989. The first page contains the warning:
"This booklet described the procedure for making an application to an industrial tribunal or contesting such an application, and the procedure for the conduct of the tribunal hearing. It is a guide only and should not be regarded as a complete or authorative statement of the law."
Under the heading `Pre-hearing assessment' (PHA) the handbook described the PHA procedure and includes a foot-note in these terms:
"Section 20 of the Employment Act 1989 contains provisions to replace the current pre-hearing assessment system. Amended Regulations will enable a full tribunal, or a chairman sitting alone, to conduct a pre-hearing review of a case in advance of the full tribunal hearing. If it appears that the case has little prospect of success, or is frivolous, vexatious, or otherwise unreasonable, either party may be ordered to pay a deposit of up to £150 as a condition of continuing to proceed with, or defend the case. These provisions will take effect in due course."
Section 20 of the Employment Act 1989 came into force on 26th February 1990, and amended Schedule 9 to the 1978 Act by inserting paragraph 1A of that Schedule, which provides for the Secretary of State to make regulations in respect of the Industrial Tribunals procedure.
The relevant rules are now contained in the first Schedule to the 1993 Regulations Rule 7 provides for pre-hearing reviews, replacing the former PHA under the 1985 Rules of Procedure. In fact, Rule 7 of the 1993 Rules appears to envisage that a pre-hearing review will be held by a full tribunal.
Regulation 12(2)(b) of the 1993 Regulations, the `new Rules' which we think were referred to in the Tribunal's letter of 7th July 1994, provides:
"(2) A tribunal hearing such an originating application on or after December 1993 may be composed of a chairman alone for either of the following purposes -
...
(b) deciding an application in accordance with the written agreement of the parties."
It follows that the guidance given in the Handbook sent to this appellant was out of date and to some extent inaccurate. Although we note the warning to which we have referred, employment protection legislation is a rapidly changing field. We think that consideration should now be given by the Department to keeping the Handbook issued to parties up-dated to set out subsequent legislation and, in this instance the effect of the 1993 Rules. However, the question remains, was this appellant materially misled?
We believe not. The note referring to Section 20 of the Employment Act 1989 predicts that Amended Regulations will enable a full tribunal or a chairman sitting alone to conduct a pre-hearing review. It therefore does not follow that if a pre-hearing review is to be held it will only be held by a Chairman. Secondly, the notice of hearing dated 21st July 1994 in this case gives no indication that the hearing listed for 11th October 1994 will be other than a full hearing. In particular, it does not refer to a pre-hearing review or preliminary hearing (for example, to consider the limitation point to which we shall return). Further, the notice was accompanied by the guidance note to which we have referred. In these circumstances we cannot see any ground for interfering with the Chairman's conclusion that the appellant could not properly complain that he was under a misapprehension as to the nature of the first hearing. Such a conclusion was open to the Chairman on the matters advanced in the application for review dated 26th October 1994.
Next, we should consider two further submissions made by Counsel. First, Mr Dineen contends that where both parties consent to a hearing before a Chairman alone that is what they should have. It is ground for complaint if the case is ultimately heard by a full Industrial Tribunal. We see no force in that submission. Regulation 12(2)(b) is permissive, not mandatory. A tribunal hearing an originating application on or after 16th December 1993 may be composed of a chairman alone where both parties consent in writing. It does not follow that where both parties consent to a Chairman alone hearing that must be the mode of hearing. That is plain from the rule; further, any suggestion that a tribunal consisting of a Chairman alone is somehow superior to a full tribunal is, in our view, wholly untenable. A further point on the facts of this case is that no such complaint was made in the review application dated 26th October 1994. This Chairman cannot be criticised for failing to consider an argument, misconceived as we find, which was not raised before the review decision was made.
Secondly, Mr Kirby submits that an application for review must include, in addition to one or more of the grounds for review set out in Rule 11(1)(a)-(e) of the 1993 Rules, some basis for reviewing the tribunal's decision. We think that that submission is correct in principle, by analogy with the High Court procedure where application is made by a Defendant to set aside judgment entered in default of appearance or defence. In such cases it is necessary to show (a) why the Defendant failed to enter an appearance or serve his defence within the time allowed under the Rules of the Supreme Court and (b) some merit is his proposed defence. However, looking at the appellant's solicitors' letter of 26th October 1994, we note that it is there proposed to argue, in the alternative to the reason for dismissal originally advanced in the Notice of Appearance, namely redundancy, some other substantial reason under Section 57(1)(b) of the 1978 Act. Since the tribunal's first decision contained a finding that this employer had failed to establish a prescribed reason for dismissal under Section 57(1) or (2) of the Act, and that the dismissal was therefore unfair, it seems to us that this application for review did raise a basis for reviewing the original decision, albeit that no particulars were given in the letter.
In all the circumstances we have concluded that the Chairman had power to dismiss this review application under Rule 11(5) and that in exercising his discretion he reached a conclusion which cannot be said to be perverse. We therefore reject the appeal against the review decision.
The first decision
Again, Mr Dineen takes two broad points; first in relation to the tribunal's finding that the complaint was not time-barred and secondly its finding that the appellant had failed to establish redundancy as the reason for dismissal.
(1) Limitation
Although the Notice of Appearance incorrectly represented the appellant's case by stating that the employment ended on 25th May 1994, this was corrected by him at the telephone on the morning of the first hearing and the tribunal dealt with the point in the first decision on the basis that it was his case that employment terminated on 25th February 1994. If this was so, then the complaint was presented more than three months after the effective date of dismissal for the purposes of Section 67(2) of the 1978 Act.
The tribunal approached this question in two ways. First they looked at the wording of the letter of dismissal dated 4th February 1994. It states:
"You can remain on holiday until 28 February and you will not be required to work your notice."
The tribunal found that any reasonable employee would conclude that his employment would end at the earliest, on 28th February. If so, the complaint was presented on 26th May 1994 was in time. Secondly, they found as a fact on the basis of Mr Stewart's evidence, that he did not receive the letter dated 4th February 1994 until 10th or 11th February 1994. Mr Dineen accepts that for the purpose of Section 55 of the 1978 Act notice runs from the date on which it is received by the employee, and that this was a three weeks notice.
It follows, in our judgment, that on both grounds the tribunal was entitled to conclude that the complaint was presented in time.
(2) Reason for dismissal
Mr Dineen points to paragraph 8 of the first decision which reads:
"8. As we have said, the respondent's case is that the applicant was made redundant. The applicant contended that somebody else had been employed to do exactly the same job. There is no dispute from the Notice of Appearance that that is so, albeit that the arrangement upon which that person was employed was more beneficial to the respondent."
He submits that the tribunal was wrong to hold that there was no dispute in the Notice of Appearance with Mr Stewart's evidence that somebody else had been employed to do exactly the same job. We think that this is `fine tooth-combing'. Although the Notice does not accept that a replacement employee was doing exactly the same job, it refers to a combination of taking on an inexperienced student and Mr Steward carrying out some of Ian Stewart's former duties. If those duties were being shared between an existing employee (Mr Steward) and a new employee then there is no diminution in the requirement for employees to do work of a particular kind under Section 81(2)(b) of the 1978 Act. This is what the Industrial Tribunal concluded in paragraph 9 of the first decision reasons. We can see no error of law in that conclusion.
The remedies decision
Here again, Mr Dineen makes two separate complaints; the first relates to the tribunal's finding that the respondent did not contribute to his dismissal and secondly the finding that he was entitled to be compensated for his loss of earnings, both full and partial, for a one year period following dismissal.
Contribution
The appellant's case on this point may be reduced to three propositions:
(1) The tribunal, if it dealt with the issue of contribution at the first hearing, ought to have referred to its findings on that issue in the first hearing decision. Its failure to do so offends Rule 10(3) of the 1993 Rules and amounts to an error of law. See Portsea Island Mutual Co-op Society Ltd v Rees [1980] ICR 260.
(2) If it did not deal with that issue at the first hearing it ought to have permitted the appellant to raise the matter at the remedies hearing, but refused to do so. See Ferguson v Gateway Training Centre Ltd [1991] ICR 658.
(3) In holding that, in the absence of any prescribed reason for dismissal being made out by the appellant, as the tribunal found at the first hearing, it was `inevitable' that the tribunal would conclude that the respondent had not contributed to his dismissal. If the tribunal were here saying that no contribution finding is possible where no reason for dismissal is established, this is a misstatement of the law. A finding of contribution under Section 74(6) and/or Section 73(7B) is not inconsistent with a finding that no reason for dismissal has been shown under Section 57 of the 1978 Act. See Polentarutti v Autokraft [1991] ICR 757.
In our judgment this submission is correct, and Mr Kirby accepts that the tribunal ought to have permitted the appellant to argue the question of contribution at the remedies hearing. We find that the tribunal has fallen into error in the way in which it dealt with this issue. Having discerned an error of law, must the second appeal be allowed on this ground?
Mr Kirby submits not. He invites us to look at the history of the matter. The letter of dismissal raises no complaint of contributory conduct on the part of the respondent; neither does the Notice of Appearance. No such complaint is raised in the application for review. It is first mentioned in the appellant's solicitor's letter dated 5th December 1994, and even then no particulars are given. It was not until asked to provide such particulars at this appeal hearing that the appellant has done so. Although the particulars now given, assuming them to be true as we must for present purposes only, point to culpable or blameworthy conduct on the part of the respondent, no causal connection is made between the behaviour complained of and the dismissal. Accordingly, on the face of the appellant's case, no finding of contribution under Section 74(6) is made out. See Nelson v BBC (No.2) [1980] ICR 110.
We have carefully considered this submission. However, we remind ourselves that the appropriate test to be applied before dismissing an appeal where an error of law has been made by the tribunal is whether that tribunal's decision, despite the misdirection, is plainly and unarguably right. See Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812. In our judgment it is not possible to be so satisfied. We must distinguish, particularly in Industrial Tribunal proceedings, between a pure `pleading point' and a point of substance. In our view the combination of the letter of 5th December 1994 and the particulars placed before us by the Appellant at the hearing of this appeal amount to a plea that the respondent was guilty of culpable or blameworthy behaviour which caused, in whole or in part, his dismissal. Whether it is a good plea can only be determined by a fact-finding tribunal. That is not our province. The real difficulty here is that the appellant was not permitted to advance the contribution argument at the remedies hearing. In our judgment he should have been allowed to do so. If necessary, an adjournment on terms as to costs could have been granted if the respondent was unable to deal with the point there and then. It follows, in our judgment, that the second appeal succeeds on this ground.
The period of loss
Again, the first two propositions advanced in support of the appeal on contribution apply to this aspect of the remedies decision. In their extended reasons for that decision the tribunal say that at the first hearing that they had concluded that the respondent should be compensated for a period of one year. Yet no such finding appears in their first hearing reasons; instead they record that they were unable to deal with compensation and thus adjourned the matter for the appellant's attendance. When he did attend at the remedies hearing he was told that the tribunal had already decided what was the appropriate period of loss. It seems to us that this case underlines the need for tribunals, where they hold split liability and remedies hearings, to give the parties an opportunity to call evidence and make submissions on remedies before a decision is made. See Duffy v Yeomans & Partners Ltd [1993] ICR 862 (EAT); affirmed [1995] ICR 1 (CA).
Conclusion
If follows that the first appeal is dismissed and the second appeal allowed. The result is that:
(1) the tribunal's findings that the complaint was presented within time and that the dismissal was unfair stand,
(2) the question of remedies is remitted to a fresh, full Industrial Tribunal for reconsideration. At the remedies hearing it will be open to the second Industrial Tribunal to consider:
(i) whether or not Mr Stewart contributed to his dismissal, and if so to what extent, for the purposes of assessing the compensatory award; and
(ii) for what period of loss of earnings in he entitled to recover. We wish to make it clear that the second tribunal is not bound by the first tribunal's finding of one year's loss. It may find that the period is greater or smaller than one year.
(3) we direct that the appellant serve an amended Notice of Appearance on the respondent and the Industrial Tribunal, setting out with full particularity his case on contribution. This should be done within 14 days of the appeal hearing, as we indicated at the close of that hearing.
Finally we order Legal Aid taxation of the appellant's costs, and we indicate, although we doubt we have power to direct, that in our view the current enforcement proceedings brought by the respondent in the County Court ought to be stayed pending the outcome of the remitted remedies hearing.