United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M WEST (Senior Advocate) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: In this case the employee, Mr Wilkinson ["the applicant"], was employed by VJS Foods Ltd ["the respondent"] from 14th August 1989 until his dismissal effective on 14th June 1996.

He presented a complaint of unfair dismissal to the Central Office of Industrial Tribunals ["COIT"] by fax transmission at 10.18 a.m. on 14th September 1996, one day out of time.

The matter was listed for a preliminary hearing before a Chairman, Mr D R Crone, sitting alone at the Norwich Industrial Tribunal on 29th November 1996.

The Chairman received in evidence a written statement adduced by the applicant from his secretary, Mrs Helen Mary Few, in which she said:

"Late on the afternoon of Friday, 13th September Mr Tom Wilkinson came to my home and dictated to me his Application to Tribunal. As soon as necessary forms were completed and the attachments typed up I tried to fax them through to the Tribunals Office but without success, getting only constant ringing tone and not a fax tone. I tried again several times throughout the evening without success."

The Chairman accepted that evidence. He found that in the circumstances it was not reasonably practicable for the application to be presented within time and that it was presented within a reasonable time after the expiry of the primary limitation period, that is midnight on 13th September 1996, thus exercising the discretion granted to him by virtue of s.111(2)(b) of the Employment Rights Act 1996 in favour of the applicant.

The question of reasonable practicability is essentially a question of fact for the Industrial Tribunal, and it will be very rare for this appeal tribunal to interfere with such a finding. See Palmer v Southend-on-Sea Borough Council [1984] ICR 372.

However, this appeal by the respondent is not against the Chairman's substantive decision per se, but raises two separate points. The first is that the Chairman had no jurisdiction to hear and determine the preliminary issue without lay members sitting with him; the second is that his subsequent decision to refuse the employer's application for a review was wrong in law.

Before turning to those submissions we should record that the applicant does not appear before us today. He is currently working in Indonesia. We have considered his written submissions.

The applicant takes two procedural points. First, he says that the Notice of Appeal is out of time. It was lodged on 11th March 1997. The Chairman's summary reasons are dated 6th December 1996. By letter dated 18th February 1997 the Chairman directed that his summary reasons should stand as full reasons. In these circumstances time runs not from the original date of the summary reasons, but from the date of the letter directing that they stand as full reasons, that is 18th February 1997. Accordingly this appeal is in time.

Secondly, he complains that he did not receive his opponent's skeleton argument 14 days before the date fixed for this hearing, as required by the Employment Appeal Tribunal Practice Direction. We have received an explanation from Mr West as to the reason for delay in serving his skeleton. He did not receive the applicant's answer until 1st April 1997. Further, we are satisfied that the skeleton argument raises no new point which would take the applicant by surprise. In these circumstances he is not prejudiced by any delay. We shall therefore proceed to consider the points raised in the appeal.

Grounds of appeal

(1) Jurisdiction

Mr West relies upon the decision of the Employment Appeal Tribunal (Judge Hull QC presiding) in Mobbs v Nuclear Electric [1996] IRLR 536 as authority for the proposition that the Chairman sitting alone had no jurisdiction to hear this preliminary issue. The applicant relies upon the later decision of the Employment Appeal Tribunal in Tsangacos v Amalgamated Chemicals [1997] IRLR 4 (Morison J presiding) which disapproved the reasoning in Mobbs. We shall follow our usual practice and follow the most recent decision of this tribunal, which in any event we prefer, there being a conflict between the two cases. Accordingly, applying the reasoning in Tsangacos, we reject the first ground of appeal and hold that the Chairman did have jurisdiction to determine the preliminary issue in this case.

(2) Review

The application for review was made on behalf of the respondent by letters dated 11th and 17th December 1996. The grounds for review were first in relation to the jurisdiction point and secondly on the grounds that new evidence had become available since the conclusion of the hearing to which the decision relates, whose existence could not have been reasonably known of or foreseen at the time of the hearing. That is a ground set out in Rule 11(1)(d) of the Industrial Tribunal Rules of Procedure 1993.

By letter dated 20th December 1996 the Chairman summarily dismissed the application for review under Rule 11(5) on the grounds that it had no reasonable prospect of success, but in that letter dealt only with the jurisdiction point by reference to Tsangacos. He made no mention in that letter of the new evidence point. He subsequently dealt with that point by a letter dated 3rd February 1997 in which it was said:

"The evidence referred to was reasonably available at the hearing but in any event is not conclusive against the applicant, in view of the findings I have made, my direction on 20/12/96 [that is dismissing the application for review under Rule 11(5)] stands."

Mr West adopts the well-known test for the admission of new evidence contained in Ladd v Marshall [1954] 1 WLR 1489, adopted in relation to review applications before Industrial Tribunals in the decision of the Employment Appeal Tribunal Wileman v Minilec Engineering Ltd [1988] ICR 318. In Ladd v Marshall at page 491 Denning LJ said:

"To justify the reception of fresh evidence or a new tribunal, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the tribunal; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly; the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

Applying that approach Mr West submits that the Chairman fell into error in the following respects:

(1) The respondent appeared at the Industrial Tribunal on 29th November 1996 with no prior warning that the applicant would seek to excuse the late presentation of his Originating Application on the basis that the COIT fax machine was not operating properly on 13th September 1996. Although that explanation, together with a copy of Mrs Few's statement, had been sent by the applicant to the Industrial Tribunal on 26th November 1996, no copy had been sent to the respondent. Accordingly the Chairman's finding that the evidence from COIT to the effect that the fax machine was working on that date subsequently obtained by the respondent, was reasonably available at the hearing was perverse.

(2) The Chairman placed too high an onus on the respondent when he held that the COIT evidence was not conclusive against the applicant. The correct test is whether the evidence would probably have an important influence on the case, although it need not be decisive; and

(3) there is no suggestion that the COIT evidence is not credible.

In these circumstances, submits Mr West, no reasonable Chairman, properly directing himself, could have summarily dismissed the application for review under Rule 11(5). The proper course was to direct a hearing of the review application before the Chairman under Rule 11(6).

In our judgment Mr West is correct in his submissions. The result must be that the appeal is allowed to this extent. We direct that the application for review be heard by the original Chairman; or if not practicable by such other tribunal as the Regional Chairman or President of the Industrial Tribunals shall direct under Rule 11(6).