United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE PETER CLARK: In this appeal it is first necessary to outline the procedural history of the case.

On 24 December 1996 Miss Moffat, the Respondent to this appeal, presented an Originating Application to the Manchester Industrial Tribunal complaining of unfair dismissal and entitlement to a redundancy payment against the Appellant, Mr Brian Thorley, t/a TMT Management Consultants. She alleged that her employment as a Personal Assistant commenced in 1984 and that it was terminated by written notice given on 24 October 1996 in circumstances where she was told that the business would close on 1 November. The letter, dated 22 October, refers to Mr Thorley having given formal notice to the Respondent on 3 July 1996. She alleges that she queried that statement and further alleged that on 30 October she was seen by the Appellant in connection with certain telephone discrepancies. Following that meeting she was summarily dismissed and told that she would not receive any redundancy pay.

By a Notice of Appearance dated 22 January 1997 the Appellant contended that he had given the Respondent 12 weeks verbal notice of termination on 3 July 1996, and that during her last week of service he discovered certain telephone irregularities involving the Respondent, as a result of which he summarily dismissed her on 31 October. He pleaded, as the reason for dismissal, gross misconduct. In the form IT3 he agreed the dates of employment alleged by the Respondent. However, by letter to the Industrial Tribunal dated 18 February 1987, he amended the dates agreed in the form IT3 to plead that continuous service had commenced on 2 January 1991.

The matter first came before an Industrial Tribunal chaired by Mr S. Keevash on 19 February 1997. The Respondent was permitted to amend her Originating Application to add a claim of breach of contract. Both parties appeared before the Tribunal without representation. The Tribunal heard the evidence and adjourned the hearing until 7 March.

At the outset of the second hearing on 7 March the Chairman announced the Tribunal's unanimous decision, based on the evidence heard at the first hearing, that the Respondent's claims of unfair dismissal and for breach of contract succeeded. In due course that decision, with extended reasons, was promulgated on 11 April 1997. We shall call that the first decision.

Having read out their decision, the Appellant promptly asked about his right of appeal. The Chairman explained his right and that a full decision would be sent out in due course. The Appellant then said that he had new evidence which showed that the Respondent had lied on oath at the first hearing. The Tribunal considered the matter and decided to treat that submission as an application for a review of the first decision. The Appellant then applied successfully for an adjournment of the review application and a time-table was laid down.

That order forms the basis of the second decision promulgated in summary form on 11 April 1997.

The hearing then took a further twist. The Appellant was not happy with the second decision's time-table. The Tribunal treated those representations as an application for a review of the second decision and by a third decision, also promulgated on 11 April, the Tribunal varied its earlier directions for disposal of the substantive review application.

Finally, on 7 March, the Tribunal proceeded to assess compensation arising from the findings in the first decision. By a fourth decision, also dated 11 April 1997, the Tribunal made a basic award of £2,310 based on 11 years service, having found in the first decision that the Respondent's continuous employment commenced on 1 September 1985. Pausing there, that award cancelled out any further statutory redundancy payment, the Tribunal having found in the first decision that the reason for dismissal was redundancy and not misconduct. Secondly, it made a compensatory award based on 13 weeks net loss of earnings from 1 November 1996, less monies earned, totalling £1,286.58, and an award of £200 for loss of statutory rights. The grand total was £3,796.58.

As to the claim for breach of contract, that is the outstanding pay in lieu of notice, the Tribunal found in the first decision that notice had been given by letter of 22 October 1996, and not verbally as the Appellant had contended on 3 July 1996. On that basis the Respondent was entitled to the balance of her notice, that is, nine weeks and four days. However, the notice period was subsumed in the compensatory award for lost earnings after 1 November 1996 and the Tribunal made no further award for breach of contract, instead adjourning that claim pending payment of the unfair dismissal compensation whereupon the breach of contract damages claim would be dismissed.

The substantive review hearing took place on 27 May 1997. By a decision with extended reasons dated 10 June the Tribunal dismissed the Appellant's application for a review of the first decision. It is against that review decision that this appeal, by Notice dated 20 July 1997, is brought. There is no timeous appeal against the first decision, nor indeed the fourth decision dealing with remedies. We shall return to that point later in this judgment.

The Review Decision

The Appellant set out his various grounds for review in writing. He raised a total of some nine points. The Industrial Tribunal considered each of those points in the course of its review decision reasons at paragraph 3. We shall not set out those matters in extenso, but again return to them when dealing with this appeal.

In paragraphs 4 and 5 of their review decision reasons the Tribunal direct themselves, we think impeccably, as to the principles to be applied in considering an application for review under the provisions of both paragraph 11 (1) (d) and 11 (1) (e) of the Industrial Tribunal Rules of Procedure 1993. For the reasons given, the Tribunal dismissed the application for review.

This Appeal

At the outset this morning, having received legal advice today, Mr Thorley applied for leave to amend the Notice of Appeal. He wished now to appeal against the first decision. We explained to him that such an application would require an extension of time for appealing since the Notice of Appeal is dated 20 July and the first decision was promulgated on 11 April 1997, more than 42 days before the date of the Notice of Appeal. He asked for such an extension and his explanation for not having appealed within time is that he believed, as a result of what was said at the hearing on 7 March, that all decisions made by the Industrial Tribunal would form part and parcel of the same sequence of events, so that time would not begin running until after the review was held and a decision promulgated. Unhappily, as we explained to him, that is not the procedure. Each decision has a time limit for appealing which runs from the promulgation of that decision. We will only extend time for appealing in exceptional circumstances; more particularly set out in the guideline authority of United Arab Emirates v Abdelghafar [1995] ICR 65, Mummery J presiding.

It seems to us that there are no good grounds for extending time for appealing against the first decision. We therefore refuse the application to amend the Notice of Appeal.

It became clear in the course of argument that that placed Mr Thorley in considerable difficulties because his main grounds of appeal we think are really directed to the first decision and not the review decision. We cannot entertain those grounds of appeal, in particular, the Tribunal's finding in the first decision that the Appellant had continuous employment from 1 September 1985.

As to the review decision itself, it is plain from the grounds of the application as they are dealt with in paragraph 3 of the review decision and reasons, that Mr Thorley was seeking to adduce further evidence, both oral and documentary, which could have been called, at the original hearing on 19 February. The purpose of the review procedure is not to give parties a second bite of the cherry in order to bolster the evidence which they gave on the first occasion. There were no grounds in law for permitting the further evidence to be adduced at a review hearing, since the evidence could have been made available at the original Tribunal hearing. Furthermore, there are no grounds for invoking the interests of justice provision in Rule 11(1) (e) of the Tribunals Rules of Procedure.

At the end of the discussion we invited Mr Thorley to identify his point of law in this appeal and he charmingly and candidly was unable to do so. We are unable to assist him by providing a point of law from the bench and in these circumstances the appeal must be dismissed.