United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DOUGHTY (of Counsel) appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: The Appellant, Mr Iqbal, was employed by the Respondent as a driver from 21 August 1995 until his dismissal on 1 March 1996. It follows that he had not completed two years' continuous employment for the purposes of qualifying for ordinary unfair dismissal protection. However, he presented an originating application to the Industrial Tribunal on 30 May 1996 alleging unlawful deduction from wages, breach of contract and unfair dismissal. The first two claims were resolved between the parties. As to the unfair dismissal claim, the Appellant contended that the reason or principal reason for his dismissal was that he had alleged that the Respondent had infringed his relevant statutory right to a written statement of particulars of terms and conditions of employment and/or that the Respondent had made unlawful deductions from his wages.

When the matter came before an Industrial Tribunal sitting at Birmingham over three days in December 1996 and January 1997 it was not in dispute that:

1. He had not received a written statement of particulars of his terms and conditions of employment;

2. The Respondent had made unlawful deductions from his wages, and

3. He had during his employment alleged that his statutory rights had been infringed.

The issue before the Tribunal was whether that assertion had formed the Respondent's reason or principal reason for dismissal.

Having considered the evidence the Tribunal found that the reason for dismissal was not that contended for by the Appellant but related to his attendance record. On that basis the complaint of unfair dismissal was dismissed, the Appellant having failed to qualify for unfair dismissal protection under s.108 of the Employment Rights Act 1996 and no point being taken under the Seymour v Smith case presently proceeding in the European Court of Justice. That decision, with extended reasons, was promulgated on 14 May 1997 (the substantive decision).

The Appellant's next step was to apply to the Industrial Tribunal for a review of the substantive decision by a document received by the Tribunal on 26 June. We are told today that the grounds of the review application are the same as those attached to the notice of appeal to this Tribunal.

By letter dated 1 July 1997 the Chairman of the original tribunal replied to the Appellant, dismissing the application for a review on the grounds:

1. It was presented out of time and

2. it had no reasonable prospect of success.

By his notice of appeal dated 24 July 1997 the Appellant appealed to this Tribunal. It was treated by the Registrar as an appeal against both the substantive decision and the later review decision. However, the appeal was out of time so far as the substantive decision was concerned and on 30 September 1997 the Registrar refused to extend time for appealing the substantive decision. There is no appeal before us against that decision of the Registrar.

It follows that the basis upon which the matter comes before us today at this preliminary hearing is on appeal from the Chairman's review decision. The question for us is whether that appeal raises any arguable point of law to go to a full appeal hearing.

Today, the Appellant is represented by Mr Doughty of Counsel under the ELAAS pro bono scheme.

As to the Chairman's decision that the review application had no reasonable prospect of success, Mr Doughty takes two points. First it is said that the Industrial Tribunal failed properly to assess the evidence before them in relation to a telephone call referred to in paragraph 26 of their reasons attached to the substantive decision. We have considered Mr Doughty's submission in relation to that point. It does not raise a question of new evidence under Rule 11(1)(d) of the Industrial Tribunal Rules of Procedure 1993 nor do we think in the light of the well-known authorities that the interests of justice provision under Rule 11(1)(e) can be extended to cover this particular complaint. Therefore, far from the Chairman having erred in law in this respect, we think he reached a perfectly permissible conclusion.

Secondly, the Appellant complains that his advocate before the Industrial Tribunal, a solicitor from the Coventry Law Centre, had not properly addressed a number of important matters to the Tribunal. We are in no position to judge whether that complaint against his former solicitor is fairly made or not. It is sufficient for our purposes to observe that the shortcomings of an advocate before an Industrial Tribunal or, indeed, a party appearing in person, do not form a basis either for a review application or an appeal to this Appeal Tribunal.

In those circumstances, we think that there is no arguable point of law to go to a full hearing in relation to the Chairman's conclusion that the review application had no reasonable prospect of success.

However, that is not the end of the matter because the other basis upon which the review application was refused was that it was out of time. Time for applying for a review under Rule 11(4) of the Tribunal Rules of Procedure is 14 days from the date of promulgation of the decision in respect of which the review is sought. The time gap in this case is between 14 May and 26 June, more than 14 days.

The grounds of the Appellant's application for a review give no explanation for that delay. We are told today that it was caused by the difficulties encountered between the Appellant and his former advisers. However, we make the same comment in relation to that as we did to the earlier point submitted by Mr Doughty.

In these circumstances we can see no grounds for interfering with the Chairman's exercise of his discretion and it is a wide discretion, in declining to extend time for the review application under Rule 15(1) of the Tribunal Rules of Procedure.

In these circumstances we are driven to conclude that this appeal raises no arguable point of law and, accordingly, it must be dismissed at this preliminary stage.