United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CLAYTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: The appellant was employed by the respondent as a Personnel Administration Manager from February 1991 until his dismissal in June 1996.

Following dismissal he presented an Originating Application to an Industrial Tribunal dated by him 4th September 1996 claiming that he was unfairly dismissed and claiming damages for breach of contract. He disputed the respondent's reason for dismissal, redundancy, and sought an order for his reinstatement.

By their Notice of Appearance the respondent admitted that the dismissal was unfair. On termination of employment the appellant had received a payment from the respondent totalling £8,027.57. On 13th November 1996 solicitors acting for the respondent made an open offer to the appellant by letter in full and final settlement of all his claims. That offer involved a further payment of £30,903.00. The appellant did not accept that offer and the parties attended for a hearing before an Industrial Tribunal sitting at Manchester on 9th December 1996 chaired by Mr E T Connolly.

By that time the offer of 13th November 1996 had been withdrawn. However, negotiations took place at the Industrial Tribunal which culminated in both parties signing an agreement to compromise the claims on payment by the respondent of the sum of £12,675. In these circumstances the tribunal recorded its decision that terms having been agreed between the parties the proceedings were adjourned generally until further order. That decision, with extended reasons, is dated 14th January 1997.

Shortly afterwards the appellant had a change of heart. He wrote to the tribunal on 13th December 1996 seeking a review of the tribunal's decision given on 9th December. In essence he complained that the Chairman had put him in a position where he felt that he had no option but to accept the lower offer put to him by the respondent on the day.

The Chairman considered that application and dismissed it summarily under Rule 11(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 for the reasons dated 14th February 1997.

Now the appellant appeals to this Appeal Tribunal, complaining that he did not get a fair hearing before the Industrial Tribunal on 9th December 1996. He has filed an affidavit sworn by him in support of his grounds of appeal on 9th April 1997 to which the Chairman has responded in a document received here on 9th May 1997.

The Appeal

Mr Clayton, who appears for the appellant under the ELAAS pro bono scheme, takes two points in this appeal.

The first is that the tribunal, in discussion on the morning of the hearing, pre-empted the question of reinstatement, the appellant's preferred remedy for the admitted unfair dismissal, by accepting the respondent's position that even if a reinstatement was made they would not comply with it and in those circumstances the only remedy for the appellant would be an additional award of compensation, limited to 26 weeks pay.

Secondly, it is said, that the tribunal misrepresented the effect of this tribunal's decision in Fosca Services UK Ltd v Birkett [1996] IRLR 325.

The effect of these factors submits Mr Clayton was to cause the unrepresented appellant to enter into a compromise agreement, without the benefit of legal advice because he could see no purpose in pursuing his claim before an Industrial Tribunal which had expressed such views albeit preliminary views.

In our judgment such an argument is doomed to failure for the following reasons:

(1) We do not accept that a party before the Industrial Tribunal, because he does not have legal advice or representation, is to be put in a different position from one who is represented. That was the appellant's choice. Just as it was his choice whether or not to accept the respondent's first offer. He did not. Or to accept the second offer which he did.

(2) We do not accept that the tribunal misrepresented the position. It was perfectly entitled to inform the appellant, accurately, as to the consequences of non-compliance by the respondent with a reinstatement order, if it was made. There was no certainty as to that.

As to the Fosca case, on a proper reading of paragraph 13 of the tribunal's review decision, it appears to us that they did understand the effect of that judgment, which was to point out, by reference to the Court of Appeal decisions in Boyo v London Borough of Lambeth [1995] IRLR 50 and Gunton v London Borough of Richmond-upon-Thames [1980] IRLR 321 that damages for wrongful dismissal may include the time which would be taken to complete the respondent's contractual disciplinary procedures. The Industrial Tribunal thought that would be one or two weeks in this case; the final settlement allowed for one month's pay under this head of the appellant's wrongful dismissal claim.

In these circumstances, we have reached the conclusion that this appeal discloses no arguable point of law, and accordingly, it must be dismissed at this stage.