United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For all the Appellants	MR T LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA
For all the Respondents	MR B COTTER (of Counsel) Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF2 1XZ


 


JUDGE PETER CLARK: We have before us two appeals by 13 former employees of the respondents which arise in the following circumstances.

The appellants were employed as dock workers by the respondent stevedores on Liverpool Docks. It is immaterial for the purposes of these appeals by which of the two respondents the appellants were employed. All were members of the Transport & General Workers Union ["TGWU"], a trade union not recognised by their employer. However two of the appellants, Messrs Bromilow and Nolan were elected shop stewards by their colleagues.

In December 1992 the employees presented a wage claim to the employer. No agreement was reached. The membership were balloted over 'industrial action'. That ballot resulted in a majority in favour of such action.

The form of industrial action decided on was an overtime ban. That decision was first implemented on 10th February 1993, when the workforce refused to work overtime on two ships, the Celtic Venture and the Heinke.

On 16th February each appellant was summarily dismissed, ostensibly by reason of redundancy according to the letters of dismissal signed by Mr Reid, the Managing Director of the second respondent and dated 15th February 1993. It was common ground between the parties on their pleadings before the Industrial Tribunal that the effective date of termination was 16th February 1993.

On 20th February 1993 the appellants presented complaints of unfair dismissal to an Industrial Tribunal. None had the necessary two years continuous service to qualify for "ordinary" unfair dismissal protection. The complaints were based on the contention that they had been dismissed because they were taking part in trade union activities at an appropriate time. If made good, such a claim is not dependent on the employee having completed two years service.

The complaints were followed by an application for interim relief under what was then section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992 ["the 1992 Act"]. That application came before an Industrial Tribunal sitting at Liverpool and chaired by Mr E Lloyd Parry on 7th April 1993 ["the Lloyd Parry tribunal"]. That tribunal granted the relief claimed, namely a continuation of the appellants contracts of employment. In written reasons for that order ["the interim relief order"] dated 6th May 1993, the tribunal found that the reason for dismissal was not redundancy, as stated in the letters of dismissal, but was by reason of the appellants taking part in an overtime ban. The tribunal observed that section 62 of the Employment Protection (Consolidation) Act 1978 ["the 1978 Act"] had been repealed, thus eliminating the distinction between trade union activities and industrial action. In these circumstances they found that the overtime ban was a trade union activity in which the appellants were taking part at an appropriate time within the meaning of section 152 of 1992 Act, and so they found that it was likely that on the full hearing of the complaints a tribunal would find the dismissals unfair by virtue of section 152.

The substantive hearing of the complaints took place before a different Industrial Tribunal sitting at Liverpool, chaired by Mr A M Coventry on the 17th, 18th, 24th and 25th May 1993 ["the Coventry tribunal"]. That Industrial Tribunal reserved its decision.

On 1st June 1993 new solicitors instructed on behalf of the respondents applied in writing to the tribunal for a review of the interim relief order, which they characterised as a "decision" within the meaning of Regulation 2(2) of Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1985. On 14th June those solicitors wrote further to the tribunal, indicating that their application was for revocation of the interim relief order as provided for in section 165 of the 1992 Act.

On 21st September 1993 the Coventry tribunal promulgated its decision on the substantive complaint ["the substantive decision"] together with full reasons. The complaints were dismissed.

In the course of those reasons the Coventry tribunal observed that in making the interim relief order the Lloyd Parry tribunal had overlooked the fact that section 62 of the 1978 Act had been replaced in identical terms by section 238 of the 1992 Act. They concluded that all the appellants had been taking part in industrial action at the time of dismissal and accordingly the tribunal had no jurisdiction to entertain their complaints by virtue of the provisions of section 238.

Against the substantive decision the appellants appealed by a Notice of Appeal dated 2nd November 1993 - EAT/924/93 ["the first appeal"].

The respondents' application for a review, alternatively a revocation of the interim relief order came back before the same Industrial Tribunal chaired by Mr Lloyd Parry, on 2nd March 1995. That tribunal revoked its original order. Against that order the appellants bring their further appeal - EAT/292/96 ["the second appeal"].

THE FIRST APPEAL

In a characteristically concise argument Mr Linden, on behalf of the appellants, submitted that the tribunal chaired by Mr Coventry had misdirected itself in two respects. First, in paragraph 6(h) of their reasons the tribunal said:

"(h) A major, indeed decisive, issue in this whole matter is whether, on 15 February 1993, when the above letter [the letter of dismissal] was written, the industrial action was still taking place or not. ..."

He points out that this is not the question. Section 238 of the 1992 Act directs the tribunal to consider whether the employees were taking part in industrial action at the date of dismissal. Here, the date of dismissal was agreed to be 16th February 1993, when notice was given to the appellants, not 15th February when the notices of dismissal were written.

Secondly, he contend that the tribunal failed to make a finding on a vital part of the appellants' case. Their evidence was that on the morning of 15th February, at a meeting of the workforce, it had been resolved that the overtime ban would be immediately discontinued. Present at that meeting was the full-time union official, Mr Dempsey. Secondly, they said, that fact had been communicated to management by Mr Nolan informing Mr Robinson of the respondents. The tribunal found that no such communication had been made to Mr Robinson, but made no express finding as to whether a resolution to discontinue the ban had in fact been passed that morning.

We bear in mind that the question as to whether an employee was taking part in industrial action at the date of dismissal is essentially one of fact for the tribunal. Here, the tribunal found expressly that industrial action was continuing at the date of dismissal. Can it properly be inferred from the tribunal's reasons as a whole that they rejected evidence called on behalf of the appellants, including that of Mr Dempsey, that no decision to discontinue the action was taken on 15th February 1993? In our judgment it can. We understand the tribunal to have concluded that having rejected the appellants' evidence that notice of discontinuance had been given to management it also rejected the evidence that the men had agreed to discontinue the action. Having reached that conclusion it matters not whether the date of dismissal was the 15th or 16th February.

THE SECOND APPEAL

Here Mr Linden submits that the Lloyd Parry tribunal had no power to rescind the interim relief order, whether by way of review of the decision, or by revocation under section 165 of the 1992 Act. The respondents' only remedy to correct what was admittedly an error of law on which that order was based is by way of appeal to this tribunal, and no such appeal has been made.

We have heard considerable debate as to whether or not the interim relief order was a "decision", and in this respect there were competing submissions as to whether the definition of decision which applied in this case is that to be found in the tribunal Regulations of 1985 or 1993.

However, the first question is whether or not the discharge order may properly be brought within section 165(1) of the 1992 Act which provides:

"(1) At any time between the making of an order under section 163 and the determination or settlement of the complaint, the employer or the employee may apply to an industrial tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order."

Mr Linden submits that an error of law by the tribunal in making the original order cannot give rise to a "relevant change of circumstances". That expression envisages only an alteration in the factual circumstances, or conceivably a change in the law, after the original order was made. He gives as an example circumstances where a factory closes down so that it is impossible to continue the employment of the workforce.

We are unable to accede to that submission. A tribunal cannot sit on appeal from its own decision. See Casella (London) Ltd v Banai [1990] ICR 215, 221C. However, the rationale behind this principle lies in the importance of finality in judicial decisions. Here, the order for interim relief was not finally determinative of the rights of the parties; first because it is susceptible of revocation or variation under the specific terms of section 165; secondly, because the nature of the relief granted is an interim measure. It simply preserves the status quo until a final determination of the complaint is made by the tribunal at a substantive hearing. In these circumstances we see no reason in principle why a tribunal should not reconsider its earlier ruling in the light of its incorrect application of the law on that occasion.

In our judgment the discovery of an error of law in its original reasoning can amount to a relevant change of circumstances. The Lloyd Parry tribunal so found in reaching its decision to make the discharge order. We are not satisfied that there are any grounds on which we should interfere with that order.

Accordingly, it is unnecessary for us to go on to consider whether or not the tribunal had jurisdiction to carry out a review, that being the alternative basis for making the discharge order.

In these circumstances we shall dismiss both appeals.