United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 864_95_2304

Appeal No. EAT/864/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd April 1996

HIS HONOUR JUDGE HARGROVE Q.C.

MRS E HART

MR T C THOMAS CBE

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MR D B GROUCOTT          APPELLANT

GKN SANKEY LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J STREEK

(of Counsel)

Messrs Garrard Mitchell

& Co

Solicitors

24 The Crescent

Town Walls

Shrewsbury

Shropshire

SY1 1TJ

For the Respondents MR D BROWN

(of Counsel)

Mr R Lowe

EEF

Broadway House

Tothill Street

London

SW1H 9NQ


 


JUDGE HARGROVE Q.C.: The first point in this appeal taken by Mr Streek, which he asks us to decide as a preliminary issue, is what was the nature of the decision made by the tribunal's extended reasons which were given on 8th December 1994. The approach which he suggests to us is that what occurred on this occasion was that there was a decision by the tribunal not to hear the question of reinstatement. He draws our attention to a passage in that reason in paragraph 3:

"We find that it would be inequitable to allow the application to be made now because the circumstances have been changed."

He draws our attention further to another passage which occurs in paragraph 4 of the extended reasons upon the decision on the application for a review dated 13th July 1995, in which a passage occurs:

"Also, we find that since Mr Groucott's trade union representative, Mr Woodvine, did not mention reinstatement, at any of the three days at the original hearing for unfair dismissals, we really find it, to say the least of it, inequitable that, since it was not until August 1994, that the respondents knew that he wanted reinstatement, that we should now grant his request for a hearing on that issue."

When one looks at the decision in the round, one starts with the decision itself, and what it says is: we do not order reinstatement. That seems to us to be fairly clear. But the whole approach of the extended reasons is upon the basis of making a decision about that matter. It is clear that there was evidence before the tribunal, it was clear Mr Groucott gave evidence about the matter. It also appears that there was document which appears at our page 73 of our bundle, which gives an indication that matters of substance rather than of mere procedure were being carried out. We are satisfied that the expression on page 4 of the bundle, paragraph 3 of the reasons of 8th December 1994, is really a form of words indicating that they were rejecting the application itself. When one turns to the review, read in context, what is happening in that paragraph is that they are looking at the question whether Mr Groucott should be entitled to put forward at this stage, that is at the review stage, further matters, and indeed if one looks at Mr Groucott's letter to the tribunal dated 13th January 1995, it is in these terms:

"Following receipt of the extended reasons of the Tribunal and which were erroneously forwarded to Messrs Garrard Mithcell & Co I write to request that the Tribunal's decision be reviewed on the basis of new evidence which has come to light.

This evidence addresses the underlying basis of the Tribunal's decision and in respect of which I had sought an adjournment to call that further evidence."

Therefore, it is clear that Mr Groucott at that stage was not saying "I have not been heard at all", he is saying "I have been heard, I have now got further evidence". In those circumstances we are satisfied that there has been substantive hearing.

JUDGE HARGROVE Q.C.: The Industrial Tribunal awarded the appellant £10,503 but did not order reinstatement. The error which is said that the tribunal strayed into, was that it failed to take into account those matters which appear in Section 69(5) of the Act.

It is accepted that the question of the complainant's wishes, which is first of the two relevant matters which they have to consider, was accepted and looked at. But, it is said that where the tribunal erred, was that it failed to ask the second question; whether it is practicable for the employer to comply with the order for reinstatement. It is true that the decision does not mention the question of practicability. The relevant paragraph reads as follows:

"3. Mr Groucott asks for reinstatement. He has told us that he also told his trade union representative regularly that he wanted reinstatement. We find that very difficult to accept because Mr Woodvine is a very well experienced representative and no application for reinstatement was made in the Originating Application. Nothing was said at the Tribunal at any of the hearings in October 1993 nor January 1994. Furthermore, the respondent did not know until August 1994 (when Mr Groucott wrote to the Tribunal by a letter dated 11th August 1994) that he required reinstatement. We find that it would be inequitable to allow the application to be made now because the circumstances have been changed."

What is said in relation to that, is, that that does not deal with the question of practicability. With respect, we do not agree. We consider that, bearing in mind, the terms of a document which was before the tribunal dated 3rd November 1994 and set out (I paraphrase): that there had to be further redundancies since that time, and the opportunity therefore for re-engagement on this site is nil. The tribunal obviously had taken that on board. They had realised that the circumstances of the employer had changed. It was also right that the tribunal was entitled to take into account the fact that there had been considerable delay in putting this matter before them, and before particularly the employer. The sort of changes which can come about in an employer's business may be such as to cause grave difficulties if the claim is not made, at least with a degree of precision on time.

In those circumstances we have reached the conclusion that the matter raised on the appeal, is unfortunately without merit and the appeal is dismissed.