United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A BISHOP (of Counsel) Messrs Sonnenscheins Solicitors Royex House Aldermanbury Square London EC2V 7HR
For the Respondents	MR CLIVE SHELDON (of Counsel) Messrs Ashurst Morris Crisp Solicitors Broadwalk House 5 Appold Street London EC2A 2HA


 


JUDGE N BUTTER QC: This is an appeal from a decision of the Chairman of the Tribunal below at London (South). The decision was expressed by way of a letter dated 17 December 1996, written on behalf of the Chairman, in which she said:

"She [the Chairman] has instructed me to inform you that she has ordered consolidation of the two cases ..."

That was something to which both parties were agreed. The letter goes on to say:

"She [the Chairman] has also ordered that the cases be listed for unfair dismissal. She is satisfied that the issues before the Tribunal will be different from those before the High Court. The Tribunal will be concerned with whether the dismissal was fair and if it was not, whether the Applicants contributed to their dismissals.

The Chairman acknowledges that the question of contribution might impinge slightly on wrongful dismissal. She is satisfied that it would [and there the word 'not' has clearly been omitted in error] not fetter the High Court. The Chairman is mindful that the ethos of the Industrial Tribunals is to dispense speedy and inexpensive justice and that if cases are stayed for any length of time, memories grow dim. She has therefore instructed that the case be listed for hearing and you will be informed of the date shortly."

That letter was written as a result of letters which had been sent to the Chairman. The first, which we have to consider, is dated 5 November and was written on behalf of the employers.

Having dealt with the question of consolidation, they went on to refer to High Court proceedings, indicated that they thought the issues were materially the same and then, towards the end said:

"... We respectfully submit that the issue of misrepresentation which has already been pleaded in the High Court proceedings will generate complex legal submissions. In all the circumstances, we respectfully submit that it would be appropriate to stay these proceedings pending the resolution of the High Court proceedings."

The Chairman further considered a letter on behalf of the employees' solicitors dated 2 December, again, a letter which we have considered.

It is clear that the Chairman treated the letter of 5 November as an application, and having considered the two letters and having considered, no doubt, the IT documents which were before her, and which only briefly summarised the issues, she reached the conclusion to which I have referred.

It is argued, on behalf of the employers, that her decision was flawed sufficiently as to entitle and, indeed, to require the EAT to interfere. They say that she had insufficient information before her. She did not have sight of the High Court pleadings. She did not know, in any detail at all, of the issues which would arise in the related proceedings. On behalf of the employee, it is urged that the Chairman was exercising a discretion, as she was entitled to, under the rules governing procedure and that it would be wrong for us to interfere. The more so, since the employers, by their solicitor's letter, had the opportunity of providing further information to the Chairman if they had so desired.

A case which has been cited to us of obvious importance is Bowater Plc v Charlwood [1991] ICR 798. There, the headnote reads:

"The employee, who was the managing director of a subsidiary company of the employers, was dismissed and made a complaint of unfair dismissal to an industrial tribunal. He also issued a writ and statement of claim in the High Court alleging wrongful dismissal. The employers wrote to the employee's solicitors asking for their consent to an application for an adjournment. They replied opposing any adjournment. A letter from the employers' solicitors to the regional office of industrial tribunals requesting a change in the date of the hearing was mistakenly interpreted as a request to the tribunal for an adjournment pending the High Court action ... and was refused by the chairman of the industrial tribunal."

That case can be distinguished from the present one, in the sense that there was a misunderstanding, whereas here, it can fairly be said, that the letter written by the employers' solicitors did constitute an application. However, it is of importance to note the decision of the EAT in that case, presided over by Wood J. Having referred to the misunderstanding, he went on to say, at page 800G:

"The decision of 21 January was given without application having been made and without any opportunity to submit documents or argument. The chairman did not have before him the pleadings nor a lengthy document which clearly forms at least part of the contract of employment. These are now before us.

Without in any way being critical we must therefore regard the decision as flawed. ..."

In the present case we believe that the test which should be applied is this. "Did the Chairman of the Industrial Tribunal have sufficient information before her to enable her to reach a judicial decision?" The reality is that she had very little information before her. She did not give any indication that she needed more information or request or suggest an oral hearing. It is argued on behalf of the employees in the present case that it was for the employers' solicitors to make such representations.

Taking all matters into account, we are clear in our view and we are unanimous in our decision, the Chairman did not have sufficient information to enable her to reach a judicial decision. We need not go through the matters contained in the pleadings which are before us. The case undoubtedly involves a number of complex issues and the question of misrepresentations. We express no view at all at this stage as to what the ultimate outcome of the application should be. We merely express the view that the Chairman did err in a way that not only enables, but requires, us to interfere with that decision.

We now propose to hear the argument either now or after the adjournment as to what should happen next.