United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR KEITH DAVIS (Consultant)
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This is an appeal by the respondent employer, Johnson Cleaners UK Ltd against a majority decision of an Industrial Tribunal sitting at Manchester on 9th July 1997 and promulgated on 26th August. The background is as follows.

The employee, Mr Stringer ["the applicant"] was employment by the respondent from 15th August 1994 until his dismissal on 1st August 1996. He appealed internally, first to Mr Grice, the general manager, who heard the appeal on 15th August and subsequently to Mr Blud who heard his further appeal on 16th September and 2nd October. Both appeals were unsuccessful.

On 12th October the applicant presented a complaint of unfair dismissal on the grounds of sexual discrimination to the Central Office of Industrial Tribunals. The case was assigned to the Manchester Region and given the number 2401093/96 ["the first complaint"].

By a decision promulgated by a Chairman, Mr P J Russell, on 13th November 1996 the first complaint was dismissed on withdrawal by the applicant ["the first tribunal decision"].

On 2nd December 1996 the applicant presented a further Originating Application to the Manchester Regional Office, case number 2402648/96 complaining of unfair dismissal against the respondent ["the second complaint"].

On 12th March 1997 the second complaint came before a Chairman, Mr C J Chapman, sitting alone at Manchester by way of a preliminary hearing. The issue was first whether the applicant had sufficient continuous employment to present a complaint of unfair dismissal; secondly, whether the complaint was in time. In a decision promulgated on 2nd April 1997 ["the second tribunal decision"] that Chairman concluded, as appears from his summary reasons, that the nature of the second complaint was identical to the basis of the claim in the first complaint, which had been dismissed on withdrawal by the applicant by the first tribunal decision.

Mr Chapman decided to treat the second complaint as an application by the applicant for a review of the first tribunal decision, and referred the matter to Mr Russell to consider whether the application for a review of the first decision ought to be proceeded with. Pending the outcome of Mr Russell's decision the second complaint was adjourned generally.

On consideration of the matter, Mr Russell directed by an undated letter sent in April 1997 that the application for a review of the first decision ought to be referred to a full tribunal for consideration.

The review hearing took place on 9th July 1997 before a full tribunal chaired by Mr Russell ["the Russell tribunal"]. By a majority (the Chairman dissenting) that tribunal revoked the first tribunal decision and directed that the first complaint be listed for a full hearing before a differently constituted tribunal. Extended reasons for that decision ["the third tribunal decision"] were promulgated on 26th August 1997. It is against the third decision that this appeal is now brought.

The Industrial Tribunal power of review

The Industrial Tribunal's power of review relates to decisionS as defined in reg. 2(2) of the Industrial Tribunal (Constitution, etc.) Regulations 1993, including a decision to dismiss an Originating Application on withdrawal under r. 13(2)(a) of the Industrial Tribunal Rules of Procedure. Staffordshire County Council v Barber [1996] ICR 397.

Under r. 11(1) a tribunal has power, on the application of a party or of its own motion, to review any decision on the grounds that, inter alia, the interests of justice require such a review.

By r.11(3) a tribunal may only review a decision of its own motion if, within the period beginning with the date of the relevant hearing and ending with the fourteenth day after the date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving the parties an opportunity to show cause why there should be no review.

An application for the purposes of r. 11(1) may be made at the hearing, or if not, within 14 days of the date of the decision being sent to the parties, in which case the application must be in writing, stating the grounds for review in full. R. 11(4).

A Chairman may summarily dismiss an application under r. 11(5), or direct that it be heard, in the case of a review of a decision made by a Chairman sitting alone, by a full Industrial Tribunal appointed by either the President of Industrial Tribunals or the Regional Chairman.

By r.15(1) a Chairman may, of his own motion, extend the time for doing any act appointed by or under the Rules.

On reviewing a decision a tribunal may confirm the decision or vary or revoke the decision. If it revokes the decision the tribunal shall order a re-hearing before the same or a differently constituted tribunal. R. 11(7).

The Appeal

The principal point taken by Mr Davis on behalf of the respondent employer, is that the Russell tribunal sitting on 9th July 1997 fell into error in failing to consider that if the review hearing was ordered by the tribunal of its own motion under r. 11(1), then no proper notice was given to the respondent under r. 11(3), or if it was ordered on the application of the applicant, he had not complied with the requirements of r. 11(4); alternatively the tribunal were wrong to consider that any application for review had been made by the applicant. The second complaint was deemed to have an application by the applicant for a review by Mr Chapman in the second decision.

In our judgment these argument must fail.

At the preliminary hearing held on 12th March 1997 Mr Chapman chose to treat the second complaint as an application by the applicant for a review of the first decision. The ground for review, set out in writing in the second complaint, was that the applicant had been induced by the respondent to withdraw the first complaint as a result of an agreement reached between the applicant and respondent to compromise the first complaint. Having, as he believed, reached that agreement, the respondent reneged on it following dismissal of the first complaint on withdrawal by the applicant. That, in our judgment, is capable of amounting to an application by the applicant for a review of the first decision on the interests of justice ground. Accordingly, the provisions of r. 11(4) were met, subject to the time limit which it was open to the Industrial Tribunal to extend, and which was implicitly extended, in our view, under r. 15(1).

The original Chairman who gave the first decision, Mr Russell, decided not to summarily dismiss the application r. 11(5) but to let it proceed to a review hearing.

Accordingly, in our judgment, the Russell tribunal was properly constituted to hear and determine the review application in respect of the first tribunal decision.

As to the merits of the review decision, the third decision, the tribunal was divided. The lay members in the majority found, preferring the evidence of the applicant to that of Mr Grice, that during a telephone conversation on 25th October 1996, Mr Grice promised to pay back pay in the approximate sum of £3,000, together with a bonus in the sum of £500 to the applicant on condition that he withdrew the first complaint. It was only because of that agreement that the applicant withdrew his Originating Application, leading to the first tribunal decision. The majority went on to find that having reached an agreement with the applicant with which the applicant complied by withdrawing his application, Mr Grice then failed to comply with his part of the bargain by not paying the money. They found, in terms, that Mr Grice behaved in a dishonourable and underhand manner and that he tricked the applicant into withdrawing his application to the Industrial Tribunal.

On those findings, the majority held that the interests of justice required that the first decision be revoked and the first complaint be reheard by a differently constituted tribunal.

Has the Chairman, Mr Russell, reached the same findings of fact as did the majority, he too would have made the same order. However, he was not satisfied on the facts that an agreement had been reached between the parties. Accordingly he would have dismissed the review application.

In the event the majority view prevailed.

On one further point the Russell tribunal were unanimous. They rejected Mr Davis' submission that the first decision was not a judicial decision, but an administrative act, directing themselves in accordance with Barber.

Mr Davis does not challenge that finding today. Indeed he makes no further submissions as to substantive decision reached by the majority of the Russell tribunal.

In these circumstances, it seems to us, that this appeal must be dismissed.