United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE J HICKS QC: Mr McCann, the Appellant, was employed by the London Borough of Lambeth, the Respondents to this appeal. From 15 December 1994 until he was dismissed on 17 January 1996 he was, on the findings of the Industrial Tribunal, on sick leave and, as we understand it, those dates are not disputed. He was then dismissed, as the Tribunal found, on grounds of capability.

Mr McCann wrote on 7 September 1996, three days after the reasons had been promulgated, a letter which the Chairman initially understood as responding to the information that an application for costs against him was outstanding. That application for costs was heard and withdrawn and disposed of, but then Mr McCann, having obtained fresh advice from the Mary Ward Legal Centre, wrote through them, drawing the attention of the Chairman of the Tribunal to the fact that the letter of 7 September had been intended to be an application for a review.

On 27 January 1997 the Chairman, dealing with the matter alone, refused the application for a review and gave his reasons. On 14 February 1997 the Mary Ward Legal Centre wrote applying for reconsideration of that decision which was refused, and Mr McCann now appeals against the refusal of the application for a review.

The letter of 7 September 1996 raised, on the face of it, issues as to the reasons why Mr McCann had not been present, as he was not, at the substantive hearing, and the letter from the Mary Ward Legal Centre of 16 January 1997, having dealt with preliminary matters in the third paragraph, essentially repeats Mr McCann's explanation of his absence. They say:

"We are instructed by our client that he did not attend the hearing because he only received notification of the date, from his representatives, on the actual day of the hearing when he was in Northern Ireland. We understand that he wrote to the Tribunal on the 7 September 1996 requesting a review ..."

And the rest deals with the procedural complications which resulted in there having been no review until that date. So, on the face of the application, the only points raised by the Appellant himself, or through the Mary Ward Legal Centre, related to his reasons for not being present at the first hearing. Those are the matters that are dealt with in the Chairman's reasons of 24 January for refusing that application and those matters go to the questions of the earlier history of representation and of non-attendance and of whether notice had been given. They are all dealt with. Nothing is said about the merits of the Originating Application.

In the letter of 14 February 1997 asking for reconsideration the Mary Ward Legal Centre draw attention to reported cases, and it is quite clear therefore that the writer of the letter is familiar with the law on the subject and able to deal with matters of law. One case is the case of Hancock v Middleton [1982] ICR 416, and that is cited in that letter for the proposition that it is inappropriate for a Chairman sitting alone to make a decision in respect of whether or not to grant a request for a review where the grounds are failure to receive notice of the proceedings and that the decision was made in the Appellant's absence.

The second case they refer to is an earlier decision, Drakard & Sons Ltd v Wilton [1977] ICR 642, and that is cited for the proposition that, before an application can be refused on the grounds that it has no reasonable prospects of success, which is the ground on which the Chairman refused this application, the party applying for the review should be given an opportunity to give further reasons in writing as to the grounds upon which the application is made.

When one actually looks at the report in Drakard that is indeed a fair summary of the ground for the decision in circumstances in which the Applicant (in that particular case, the employers) had not gone into the prospects on the merits and had not been given a further opportunity of doing so, but what one then finds is that the judgment of the majority of the EAT - in fact on this particular point the unanimous decision, because although the decision was by a majority this particular paragraph is headed with the words "On one matter we are agreed" - reads as follows:

"As a matter of practice this appeal tribunal lays down that an applicant for a review should set out not only the grounds on which he seeks a review (which may, as in this case, be an explanation, however, lame, for his failure to turn up at the hearing) but should also set out his grounds for contending that the decision of which he seeks a review was wrong. In the present case the employers never set out in writing or otherwise any grounds for their contention that the decision of the industrial tribunal was wrong, save for two sentences which appear in their notice of appearance of March 16, which are so vague that they do not really communicate any defence to the claim. In future, an applicant for a review must not only set out his reasons for a review, but must also set out in writing his grounds for disputing the validity of the decision arrived at on the review [which I think must mean on the original hearing]." (page 647 E)

So that although in that particular case, without any such previous guidance and, I think, without any legally qualified or experienced advice, the employer's failure to provide that information was not held against them, and it was held that the Tribunal should have given them the opportunity, it is quite clear that what is being laid down as a practice for the future, certainly in the case of any applicant with access to either professional or equivalently experienced advice, is that it is the duty of the applicant for a review to comply with that requirement. In this case, not only is the Mary Ward Legal Centre a body which is known to have experience in this field, but what is perhaps even more important is that they have cited this very case in their letter of application of reconsideration, but even at that stage they still do not advance any suggestion that a re-review or a re-hearing of the whole application has any prospects of success. It is quite plain (and Mr Levinson, who has said everything that could be said for Mr McCann, does not dispute this, as we understand it) that, on the evidence which the Tribunal heard, the dismissal of the application was inevitable. It was a capability case. There had been sick leave for over a year and the employers gave undisputed - because nobody else was there - evidence of full consultation, medical investigation and investigation of alternative employment.

What is now said by Mr McCann, through Mr Levinson, is that if there were a review and/or a re-hearing he would wish to advance a case that the sickness in question was a clinical depression and that the clinical depression had been caused by the circumstances of his suspension, in particular accusations ( I am sure he says false) of fraud, and therefore had itself been induced, as we understand it, by the employers.

In the Originating Application, as Mr Levinson concedes and therefore I need not read it, nothing of that appears, and nothing appears in any of the subsequent communications by Mr McCann or by his advisers or representatives to that effect. It has emerged for the first time today, and what seems to us to be conclusive is that it is not stated even in the very latest communication by the Mary Ward Legal Centre of 14 February 1997 asking for a reconsideration of the refusal to review, and in the face of the fact that they themselves in that letter quote the very authority which makes the raising of such an issue and the disclosure of its nature incumbent upon applicants.

In those circumstances we consider that whatever criticisms may be levelled against the Chairman's consideration of the issues which were before him of the reasons for failure to attend - and we are far from persuaded there was any substantial fault on his part in dealing with those - but quite apart from that we are quite clear that the Appellant simply had not made out any ground on which the Chairman or the Industrial Tribunal, had it been convened in full, could have allowed the application for review in the absence of the putting forward of any considerations as to the possibility of success on the merits of his original application. We therefore consider that this appeal must inevitably fail and that it should be dismissed.