United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J O'NEILL (Of Counsel) Messrs Neil Myerson 31 Regent Road Altrincham Cheshire WA14 1RX
For the Respondents	MR J SHAMMAH (Solicitor) Messrs Shammah Nicholls St John's Court 78 Gartside Street Manchester M3 3LL


 


JUDGE LEVY QC: Mr Clive Cass appeals from a decision of an Industrial Tribunal sitting at Manchester on 14 February 1996, when the Tribunal ruled that it had no jurisdiction to hear the Appellant's complaint of unfair dismissal on its merits, effectively because Mr Cass's application, made so long ago, had been terminated by a decision of an Industrial Tribunal sent to the parties on 20 June 1995. That decision reads:

"The Conciliation Officer, having taken action under the statutory powers, and terms of settlement having been reached between the parties, by consent the originating application is hereby stayed."

There is, in one sense, a short point to the appeal, which can be found in paragraph 14 of the later decision of the Industrial Tribunal, which was sent to the parties on 2 April 1996. That paragraph, omitting irrelevant words, reads:

"14. I was satisfied that .... once such an agreement [this is a reference to a COT Agreement with the assistance of ACAS between the parties to an Industrial Tribunal] to compromise has been reached, that operates as a bar to the further pursuit of the dispute in the Courts or Tribunals."...

That statement appears to us to be a mis-statement of law, having regard to what is clearly set out in Halsbury's Laws of England 4th Edition Vol.37 on the subject of stay of proceedings. Paragraph 437 commences:

"A stay of proceedings arises under an order of the court which puts a stop or a stay on the further conduct of the proceedings in that the court at the stage which they have then reached so that the parties are precluded thereafter from taking any step in the proceedings. The object of the order is to avoid the trial or hearing of the action taking place, where the court thinks it is just and lenient to make the order to prevent undue prejudice being the case to the opposite party or to prevent the abuse of justice."

Within paragraph 438 which is headed "Effect of stay of proceedings" we find a sentence which reads:

"A stay may be removed if good cause or proper grounds are shown or the continuance of the stay could cause or produce injustice or prejudice."

From reading those passages it is quite apparent to us that the Chairman has mis-directed himself when he promotes a discretion in the court into a "bar to the pursuit of further proceedings". On this short point the appeal Mr Cass makes has to succeed and the order of the Industrial Tribunal must be set aside.

Mr O'Neill has asked us, however, whether we can substitute our discretion for that of the Industrial Tribunal and allow the appeal and remove the stay here and now. He asked us to do so because, he says, when you examine the documents which were in existence at the time of the hearing, there was good cause shown for the complaint of Mr Cass to be heard by an Industrial Tribunal. Mr O'Neill refers us to certain letters dated 16th May 1995 which Mr Shammah has no objection to us reading. We have to say that a late application was made to this Court for documents to be considered by us which were not considered below. We have looked at all the documents, de bene esse, but we will in this judgment only refer to such of those documents which material to this judgment to consideration of which by us Mr Shammah does not object.

On 16 May 1995, Messrs Shammah Nicholls who act for the Respondent to the appeal wrote two letters at least. One of these letters was sent to the Industrial Tribunal and reads as follows:

"We are writing, following upon our telephone conversation earlier this afternoon, to confirm that Terms of Settlement have been agreed between the Applicant and the Respondents and that we would be grateful if an Order be made by the Industrial Tribunal in the following terms:

1 Upon Terms of Settlement having been agreed between the Parties the proceedings be adjourned generally for the parties to implement the Terms of Settlement.

2 Upon implementation of the Terms of Settlement the Applicant Undertakes to make Application to the Industrial Tribunal that the Applicant's claim be dismissed.

We are ready and able to attend at the Industrial Tribunal in the morning to explain [this letter was written on the eve of the day the proceedings were to be heard] the proposed Order to the Chairman and in the absence of any indication to the contrary will do so upon the basis that no more than 10 minutes will be required before the Tribunal."

A letter of the same date was sent to the ex-Chairman of an Industrial Tribunal who was pro bono assisting the Applicant. That letter reads:

"Following upon our telephone conversation today I write to confirm the following:

1 Terms of Settlement have been agreed between our respective clients whereby our clients will pay to your client, within 14 days, the sum of £4,000.00 in full and final settlement of your client's claims against our client in relation to your client's contract of employment and termination thereof.

2 The said Terms of Settlement have been confirmed with ACAS who have agreed to provide Terms of Settlement COT3 for execution.

3 I enclose herewith a copy of my letter to the Industrial Tribunal the contents of which are self explanatory."

The 'COT 3' letter was duly signed and sent to the Industrial Tribunal. However the Tribunal's order set out above did not follow the order which Shammah Nicholls had sought.

The order was sent to the parties on a form which has at its foot "IT59B" in typescript. It may be that the decision was sent out on a standard form without any or any proper regard to what the parties had sought. If that had been taken into account by the Chairman on the application for review, it might well be that he would have reached a different decision. However, we have not had the benefit of having full argument and the Tribunal has not had the benefit of hearing all that could and may be said for Mr Cass, when a further application for a review is made, which we think should occur.

In these circumstances we propose to allow the appeal against the review decision and direct that a review of the decision be heard by a different Tribunal as soon as possible, so that a decision can be properly be taken as to whether Mr Cass can re-open the action which was stayed. Mr Shammah has submitted that to allow the appeal would drive a "coach and horses" through the ACAS procedures. We are satisfied that this is not the position because it is only where it is just to do so that the Tribunal will be minded to lift a stay which has been made.