United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 635_93_2902

Appeal No. EAT/635/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 February 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MR R N STRAKER

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MRS S SIRDAW          APPELLANT

LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R MINCOFF

(N.U.T. Representative)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the adjourned Preliminary Hearing of an appeal. The appeal first came before this Tribunal on 30 March 1994. On that occasion, a friend of the Appellant, Mr Sen, appeared for her. For reasons explained in a transcript of the judgment given on that day, the Preliminary Hearing was adjourned, pending receipt of the decision and full reasons of the Industrial Tribunal, refusing an application for review, made on 24 June 1993.

The decision and reasons for the decision on the review were not sent out to the parties until 1 July 1994. For reasons which we do not know, it has taken since then for this case to be re-listed for a final decision. As appears from the transcript of the hearing on 30 March, we were satisfied that there was an arguable point of law on a decision in relation to questions whether the complaint was out of time. That decision was reached on 17 June 1993. The full reasons were sent to the parties on 22 June 1993. The decision of the Tribunal was that they did not have jurisdiction to consider complaints of racial discrimination, which Mrs Sirdaw made in relation to her appointment as an ESL Teacher in the Summer of 1988. That was decided as a preliminary issue at the start of the hearing of her case on 17 June: but, as also explained in the transcript, the reason why we did not direct the matter to proceed to a full hearing was that there was a later decision in the same proceedings, (Number 31369) on 23 June. That decision sent to the parties on 24 June simply said:

"The unanimous decision of the Tribunal is that the Originating Application be dismissed on withdrawal by the Applicant on the terms agreed between the parties."

That decision was made in the same proceedings with the same case number. We were told by Mr Sen, Mrs Sirdaw's representative, at the Preliminary Hearing, that there had been an application for a review, that it had been unsuccessful and that the decision on the review had not been explained in reasons. As mentioned in the judgment, it was necessary to see the reasons for the decision, in order to determine whether there were any proceedings left in which there could be an appeal. We have now seen those reasons. They say this: the application for a review, made by Mrs Sirdaw, had no reasonable chance of success and therefore was refused by the Chairman. The reasons are brief. I will read them in full:

"On 23 June 1993 the fourth day of the hearing at the beginning of the day Mr Sen the Applicant's representative applied to withdraw the Originating Application dated 13 December 1990 on terms which had been agreed between the parties. A decision was promulgated in those terms. The next day Mr Sen wrote to the Tribunal seeking a review of the decision on the grounds that the Applicant had only withdrawn because he had been improperly pressured by Mr Allen the Respondent's Counsel. This morning, 7 March 1994, I heard evidence from both men of the discussion they had prior to the withdrawal. I am satisfied that Mr Allen did not behave improperly but merely put to Mr Sen points which had already been made in correspondence. At the time Mr Sen was of the view that the Applicant still had a strong case. I formed the view that the Applicant having heard the views of her adviser and the details of the conversation between the two men relayed by Mr Sen made her decision to withdraw."

We have read, in addition to that decision, the letter which Mr Sen wrote on 24 June 1993 to the Chairman of the Industrial Tribunal, setting out the basis on which he was seeking a review. The substance of the allegations was that Counsel representing the Hackney Borough Council had mentioned that he was going to make a costs application, if the case went on for ten days. He felt that Mrs Sirdaw had no prospect of winning on the remaining issues in the case and reminded Mr Sen of what the Chairman had said the previous day about costs. He explained what the likely scale of those costs would be, and mentioned the offer on behalf of the Council that, if Mrs Sirdaw withdrew now, he would not make a costs application. That was the factual background to the application for review.

On 30 June, the Chairman of the Tribunal informed Mr Sen that he was prepared to treat the letter of 24 June as an application for review. That review hearing took place on 7 March 1994. At the adjourned hearing of the appeal today, Mr Mincoff of the National Union of Teachers attended as Mrs Sirdaw's representative. He argued that we should allow the appeal to proceed to a full hearing, because, as already stated in the transcript of the hearing on 30 March, we were satisfied that there was an arguable point of law in relation to the decision of the 17 June. His submission was that the withdrawal of the Originating Application did not affect that appeal, because all that was being withdrawn were the surviving complaints, not those complaints which had been ruled out of time on 17 June. He said that Mrs Sirdaw's intentions were that she should only withdraw those complaints that survived the hearing on the first day. She was not intending to withdraw those claims that were the subject of the decision on 17 June. She wished to keep on with those and wanted to appeal the decision which had excluded them, as out of time.

Mr Mincoff said that it was in the interests of justice that we should allow this appeal to continue, particularly when we had expressed the view that there was an arguable error of law in the full reasons for the decision of 17 June. We have considered those arguments, but, in our judgment, there is no future left in this appeal. We should dismiss it now. There is no future left in it because we are satisfied, on reading the documents, in particular the order of 23 June and sent to the parties on 24 June, and the reasons for refusing the review. The reasons for refusing the review, given by the same Tribunal that had made the order on 23 June, explain what happened on 23 June. Mr Sen acting as Mrs Sirdaw's representative, reached an agreement with Counsel for the London Borough of Hackney, that, on agreed terms, the Originating Application of 13 December would be withdrawn. We have not seen the agreed terms. The Tribunal was told that terms had been agreed. Those terms included withdrawal of the Originating Application.

Nothing was said about withdrawing only part of it. The Originating Application was withdrawn. The effect was that everything alleged in it was withdrawn, whether the allegation related to matters that were in time or out of time. If the intention was to keep some of the complaints on foot, then it would not have been correct to agree to withdraw the Originating Application. There would have been a withdrawal of certain complaints in the application and others would remain for decision, subject to an appeal to this Tribunal on the ruling on the time limits.

We appreciate the point made by Mr Mincoff that Mr Sen was not a lawyer. He was only acting as a friend of Mrs Sirdaw, but that cannot affect what is clear in not just one, but in two documents of the Chairman. There is no error in making an order dismissing an application on parties agreeing that it should be withdrawn. Mr Mincoff drew our attention to one further matter. That is a letter of 15 July written by the Assistant Secretary of the Tribunals to Mr Sen, referring to the two decisions. We do not see anything in that letter which casts doubt on the effect of the order of 23 June, as explained on the review decision on 1 July. In those circumstances, we dismiss the appeal because the appeal is made in proceedings which were withdrawn and dismissed by the Tribunal. The proceedings have come to an end. There is nothing left to appeal about. We therefore dismiss the appeal.