United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant
For the Respondents


 


RESERVED JUDGMENT
MS O SOGBETUN -V- LONDON BOROUGH OF HACKNEY

MR JUSTICE MORISON (PRESIDENT): This appeal raises an important question relating to the practice and procedure of Industrial Tribunals. In a nutshell, the appellant's complaint of unfair dismissal was heard and determined by a Chairman sitting alone. He rejected her complaint, ruling that, in the circumstances, having regard to equity and the substantial merits of the case, the employers' decision to dismiss fell within the range of reasonable responses available to a fair-minded employer.

The way in which he came to take jurisdiction is this. The applicant was employed by the London Borough of Hackney [Hackney] as an Administrative Assistant in their Right to Buy unit. She was dismissed as from 16 May 1995. With the assistance of her Union, Unison, she completed and filed an IT 1 which the Industrial Tribunal received on 2 August 1995. The reason for her dismissal related to her sickness absences. In her IT 1 the applicant complained that Hackney had ignored her evidence that the medical problem which caused her absences was no longer an issue; her representative had not been allowed to complete his presentation; she was not allowed to produce a letter from her consultant gynaecologist. She asked that her case not be listed for hearing as she was then pursuing an internal appeal. The employers' IT 3 was presented to the Tribunal sometime in December 1995, after the internal appeal had been heard and dismissed on 14 November 1995. It is clear from the face of the two 'pleadings' that there were going to be issues of fact which would have to be resolved, and that the Tribunal would be required to consider the difficult question as to the circumstances in which it is fair to dismiss an employee who has a bad sickness record.

In due course, a letter from the Industrial Tribunal dated 5 January 1996 was sent to the parties' named representatives, in these terms:

"The file relating to the above case has been referred to a Chairman of the Tribunals.

The Chairman has directed that this case may be heard by a Chairman sitting alone instead of a full tribunal.

Could you notify us within 14 days of receipt of this letter if you have any objection to this case being heard by a Chairman alone."

By letters dated 9 January and 16 February 1996, Hackney and Unison indicated that they had no objection to the case being heard by a Chairman alone.

We were told by the appellant's counsel that the Union representative had not consulted his client before giving 'consent', although the Tribunal were not to know this. There had, at this time, been considerable delays in getting cases heard in this Region and it may well be that the parties consented because they would know that a hearing with a Chairman sitting alone would come on quicker than a hearing before a full panel.

Armed with the written 'consent' of the two parties, the matter came on for hearing before a Chairman sitting alone on 25 June 1997. The parties had, between them, five witnesses to call; Hackney had prepared witness statements from three witnesses, although these had not been disclosed to the applicant or her representative or to the Tribunal before the day of the hearing. The Tribunal had probably been supplied, a day or two before, with a bundle of documents prepared by Hackney which, in total, ran to some 150 pages. It is not entirely clear what happened on the morning of the first day of the hearing. Counsel for Hackney recalls taking instructions as to whether he should make representations about the Chairman sitting alone, but he cannot say whether that was in response to something being said by the Chairman himself, or because, as counsel familiar with appearing in Industrial Tribunals, this was the first occasion on which he had acted in an unfair dismissal case where the Chairman was sitting alone. It would appear that there was no discussion about the number of witnesses who were to be called or the amount of documentation to which reference would be made. The applicant and her husband recollect that the Chairman started off by saying he had not read the file of documents, which was on his table. No objection was made by either party, that is either by the Union representative or by Counsel, to the case being heard by the Chairman alone and the Chairman himself never adverted to this question at any stage of the proceedings. The case did not finish on the first day and was adjourned to the following day when it was concluded.

We turn, first, to the question whether the industrial tribunal was properly constituted and whether either party can now raise that issue, in the light of their express written 'consent' and of their failure to make any objection at the time.

The power which entitles a Chairman to sit alone is conferred by section 4 of the Industrial Tribunals Act 1996.

"4. Composition of a tribunal.

(1)Subject to the following provisions of this section, proceedings before an industrial tribunal shall be heard -

(a) the person who, in accordance with regulations made under section 1(1), is the chairman, and

(b) two other members, or (with the consent of the parties) one other member, selected as the other members (or member) in accordance with regulations so made.

(2)Subject to subsection (5), the proceedings specified in subsection (3) shall be heard by the person mentioned in subsection (1)(a) alone.

(3)The proceedings referred to in subsection (2) are -

(a) proceedings on an application under section 161, 165 or 166 of the Trade Union and Labour Relations (Consolidation) Act 1992,

(b) proceedings on a complaint under section 126 of the Pension Schemes Act 1993,

(c) proceedings on a complaint under section 23 or 188 of the Employment Rights Act 1996 or on an application under section 128, 131 or 132 of that Act,

(d) proceedings in respect of which an industrial tribunal has jurisdiction by virtue of section 3 of this Act,

(e) proceedings in which the parties have given their written consent to the proceedings being heard in accordance with subsection (2) (whether or not they have subsequently withdrawn it),

(f) proceedings in which the person bringing the proceedings has given written notice withdrawing the case, and

(g) proceedings in which the person (or, where more than one, each of the persons) against whom the proceedings are brought does not, or has ceased to, contest the case.

(4) The Secretary of State may by order amend the provisions of subsection (3).

(5) Proceedings specified in subsection (3) shall be heard in accordance with subsection (1) if a person who, in accordance with regulations made under section 1(1), may be the chairman of an industrial tribunal, having regard to -

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),

(b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),

(c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

(d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),

decides at any stage of the proceedings that the proceedings are to be heard in accordance with subsection (1)."

Subsection (2) requires the proceedings ['the qualifying proceedings' ] identified in subsection (3) to be heard by a Chairman sitting alone but that requirement is 'subject to subsection (5)'. Subsection (5) confers a discretion on a Chairman not to sit on his own in relation to such proceedings having regard to various statutory criteria. Because of the words "subject to subsection (5)" it is our view that if a Chairman sits on his own that is because he has declined to exercise his discretion to refer the matter to a full tribunal. Therefore, whenever a Chairman sits on his own he must have exercised his discretion under subsection (5), albeit negatively. A case cannot be heard by a Chairman alone without the matters referred to in subsection (5) having been evaluated. There is, thus, a two stage process: first the proceedings must be identified as qualifying proceedings; and, second, they must be proceedings in which a Chairman has exercised his discretion and has not decided that it would be desirable for them to be heard by a full tribunal. The consent of the parties is not determinative as to how the discretion should be exercised both because of the two stage process and because of the provisions of subsection (5)(c). The matters specified in subsection (5) must be considered whichever subparagraphs of subsection (4) apply, including subsection (4)(e).

It seems to us clear that, having regard to the issues of fact in this case, no reasonable tribunal chairman properly exercising his discretion could have concluded otherwise than it was desirable, and necessary, for the case to be heard by a full tribunal in accordance with subsection (1). The Industrial Tribunals were set up to provide an industrial jury, whose function is to make judgments, subject to legal direction, about employers' conduct, based upon experience of the workplace. As we have said in another case, the respect for Industrial Tribunal decisions comes from a number of circumstances, including importantly, from the fact that cases are not tried by a judge or other legally qualified person alone but by a panel of three who can bring their collective wisdom to resolving the matters in issue. Each side of industry is represented on the panel, and the parties before them can be confident that their respective positions have been well understood and fairly assessed by people who have workplace experience.. The Tribunal brings a collective good sense to the determination of employment issues.

The right not to be unfairly dismissed is contained in a piece of social legislation drafted so as to give the decision maker a wide remit, and to permit the industrial jury a wide margin of appreciation. To dispense with Lay Members in such cases is to effect a radical departure from the intention of Parliament and to damage the tribunal system by depriving it of its real worth. To some extent, this is reinforced by the 1998 Act, which entitles parties to agree to arbitration before a single arbitrator. In cases such as these, there are, realistically, two choices: a hearing before a full panel in a tribunal room to which the public has access, or a private hearing before a single arbitrator against whose decision there is a very limited right of challenge.

Furthermore, we consider that the procedure adopted by this tribunal was defective and not in accordance with the legislation. The letter which procured 'consent' (or, perhaps, 'non-objection') was written on the basis that some unidentified Chairman had read the file and 'directed' that it was suitable for hearing by Chairman alone. As we read the letter, the Chairman's direction must have purported to be the exercise of discretion under subsection (5), because the discretion does not otherwise appear to have been exercised. If so, then the Tribunal have, respectfully, put the cart before the horse. The proceedings in respect of which the discretion must be exercised are qualifying proceedings; yet the proceedings did not qualify until after written consent had been given by both parties. It was wrong, we think, to invite consent after the discretion had been exercised. Further, it was unfortunate that the letter should have been expressed in the terms of a 'direction'. Finally, if the letter expresses the exercise of a discretion, the learned Chairman (whoever he or she was, and we have already said on an earlier occasion that it is unacceptable that any judicial decision should be made by an unidentified person) had no material before him on which he could properly exercise it. He did not know from the pleadings alone the full extent of the factual issues or points of law, he did not know what the parties' views were. The position is this: either the Chairman has never exercised his discretion under subsection (5) or he has done so improperly.

The question then arises as to whether we can, and should, interfere with the decision of the Industrial Tribunal on the grounds that it was not properly constituted, when both parties have consented to what the Chairman did and never invited him to re-consider his position. It seems to us that the answer to the question depends upon whether we take the view that the way the Tribunal was constituted is itself a jurisdictional issue. If it is, then the decision of a tribunal which has acted without jurisdiction can be challenged on that ground whether or not the parties consented or acquiesced.

The Industrial Tribunal is a creature of statute, whose jurisdiction derives solely from the statutory provisions conferring jurisdiction upon it. As we have attempted to show, the jurisdiction for a tribunal to adjudicate on cases where the Chairman sits alone requires the exercise of a judicial discretion. If, in a 'sit alone' case, a Tribunal Chairman had never exercised his discretion at all under subsection (5), it seems to us that the Tribunal would not have been constituted in accordance with the statute. If a Tribunal was improperly constituted, then it seems to us that it cannot have arrived at a lawful decision. Its decision would be a nullity. On that basis, whether or not the parties had consented to or acquiesced in what happened, the EAT should remit the case back for consideration by a tribunal properly constituted. Parties cannot confer jurisdiction on a statutory tribunal such as this, either by consent or through the doctrine of estoppel. Further, the EAT draws a distinction between a jurisdiction issue and other issues when the question arises as to whether a point not taken below can be argued on an appeal. That is entirely consistent with the thesis that a jurisdiction question arises regardless of whether the jurisdiction point has been previously spotted or simply abandoned or neglected. The EAT will often be required to consider whether the Tribunal has properly accepted jurisdiction over a dispute: for example, whether a complaint was presented within three months of the effective date of termination. Although there might be concurrent jurisdiction with the Crown Office were a tribunal to act beyond its powers, we do not doubt that we can and should deal with such a case.

In principle, it seems to us that the answer would be no different in a case where a Chairman purported to exercise his discretion but did so perversely or by reason of a misdirection in law. If the exercise of the discretion was defective in law, then in our judgment the EAT can and should intervene and remit the case back for a hearing before a properly constituted Tribunal.

Further, we are of the view that the parties and the appellate courts are entitled to know why an identified Chairman has exercised his discretion under subsection (5). A short statement of the reasons for his conclusions is all that is required. These will show what particular factors he took into account when deciding as he did. The need to give reasons will, we think, be of assistance to Chairmen called upon to exercise their discretion because it will help them to focus their attention on the factors which Parliament require them to take into account.

We turn now to the merits of the appeal itself.

The applicant had been away from work for a substantial period: from 21 January 1991 to 10 May 1995 she had 194 days of sickness absence. The reasons for her absences were due to gynaecological problems and run of the mill illnesses such as influenza. Hackney's Occupational Health Adviser saw the applicant in January 1995 and Dr Lyle noted that the applicant would require a small operation but might need major surgery later. Following the minor operation, she had 12 days absence and a further period of 5½ days absence in March 1995.

There can be no doubt that her absences put an additional strain on the other members of the small team of which she was a part.

By letter dated 26 April 1995 the applicant was invited to a meeting to discuss three matters: first her capability to give a regular and efficient service; second, whether she needed time to recover her health and third if that [the extra time] was compatible with the needs of the job. At the meeting on 10 May, the employers had available to them a written medical report dated 30 January; the applicant's representative pointed out that most of the absences were attributable to gynaecological problems "which had effectively been overcome" and she relied upon a letter from the GP dated 9 May saying that she was fit for work. The officer conducting the interview was of the view that on the information before him he could not decide whether or not the applicant was capable of regular and efficient service and the meeting was adjourned to enable him consult with personnel and Dr Lyle. The applicant went to see Dr Lyle and she was given a written report saying that no further surgery was intended or being considered and "while I cannot predict her long term health or sickness, [the applicant's] medical problems about which I wrote in January appear to have been resolved." Personnel also spoke to Dr Lyle and her note of what the doctor said says "may need further surgery in future but not immediately. Assumes we are not making decision based on whether she is going to have another operation ... Accepts that no major surgery planned for immediate future, but cannot predict regular and efficient service in the future." That version of Dr Lyle's view was not disclosed to the applicant.

On 16 May the adjourned meeting was reconvened. This was described by the Industrial Tribunal Chairman as "regrettably short and somewhat crude ...in terms of good industrial practice". The applicant had obtained from her consultant gynaecologist a letter dated 15 May which made it clear that she did not require further surgery, but the respondent's officer was not prepared to receive it or to hear the applicant's representative any further. He proceeded to give his ruling in favour of dismissal. His decision hinged upon the report of the conversation between personnel and Dr Lyle.

The Director of Housing heard the applicant's appeal on 14 November 1995, received the letter from the consultant and looked at Dr Lyle's letter to her dated 10 May. But the appeal was dismissed. The Tribunal Chairman noted that had the applicant known of the note made by the personnel officer she would have sought further medical proof that her gynaecological problems were at an end for the foreseeable future. He went on to say that

"If one examines very carefully the text of the letter of 10 May and the conversation as recorded by [personnel], there is in effect, no material difference between the two because upon the important issue of whether or not reliability can be predicted it is clear that Dr Lyle is consistent."

Having referred to a number of authorities, the Chairman concluded that the decision to dismiss was not a medical decision but it depended on medical advice.

"It did not turn on whether the Applicant required another operation rather, given the history of absence, could she be relied upon to provide regular and efficient service."

The oral report to personnel and the letter of 10 May:

"both said, effectively, the same thing".

He concluded that the employers could reasonably have reached the decision they did and, although the procedure was flawed, it did not render the dismissal unfair.

We do not find the decision easy to follow. In the first place it would appear that the real question was whether the applicant could be relied upon to provide a regular and efficient service in the future, having regard to her past absences. As we understand it, there was no suggestion that she had been swinging the lead, or if there was, it was never put to her, and nor was the case run on that basis. It was of importance, therefore, that the Authority should seek to find out what the gynaecological prognosis was. It was the Chairman's view that there was no material distinction between the letter and the record of the oral conversation. The fact that a doctor is unable to predict the long term health of a patient may say nothing more, we think, than that the doctor is a human being not gifted with the benefit of foresight. To construe the statement as a reservation about the applicant's future health may well not do justice to what was actually being said. It is just this sort of point where the good common sense of the Lay Members would have been of assistance to the Chairman. Further, the Lay Members might well have had actual experience in the workplace of the sort of problem which the employers were facing. They would have been able to bring their experience and knowledge of the workplace to bear on the questions at issue: in particular on the way the employers dealt with the dismissal, including the obvious unfairness of the procedure whereby the applicant did not know what was being said about her health, and on the blinkered approach of the original decision maker.

The President would wish to record the fact that it came as something of a shock both to him and his Lay colleagues to see an unfair dismissal case being dealt with in this way. We are not at all surprised that the applicant should have felt aggrieved by the outcome. Had the case been considered by an industrial jury she would or might have taken a different view as to an appeal, assuming that she still lost her case.

We consider that the only just result is to remit the matter back for a re-hearing before a full tribunal, freshly constituted. The appeal is, therefore, allowed on that basis.