United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS B LANG (of Counsel) Lewis Silken Solicitors Windsor House 50 Victoria Street London SW1H 0NW
For the first Respondent For the second, third and fourth Respondents	MR C CIUMEI (of Counsel) Instructed by: Director of Legal Services UNISON 1 Mabledon Place London WCIH 9AJ THE SECOND, THIRD AND FOURTH RESPONDENTS NEITHER BEING PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This is an appeal by the Management Committee of the African Caribbean Mental Health Association ["the Association"] against a decision of London (South) Industrial Tribunal sitting on 13th and 14th January 1997, upholding complaints of unfair dismissal by the four respondents to the appeal, former employees of the Association. Extended reasons for that decision are dated 4th February 1997. It is material to note that the Association did not appear before the Industrial Tribunal, although it had entered a Notice of Appearance resisting the claims.

It seems from the Industrial Tribunal's findings of fact that on Friday, 25th November 1994, the three female respondents, if not Mr Okezie the first respondent, decided to hold a day of action in support of a suspended colleague. Although they worked normally that day so far as their clients were concerned they resolved not to admit members of the Association of the management committee into the Association's offices on that day unless they received an assurance that their grievances over the particular issue relating to the suspension that had arisen that morning, and other matters more generally relating to the then management of the Association, would be heard.

They displayed a notice to that effect and when members of the management committee came into work their access was blocked by the three female respondents linking arms. The tribunal found that Mr Okezie, the first respondent before us, witnessed this incident but did not take part in it.

The police were called, and later left. So too did the members of the management committee. Thereafter the respondents carried on working normally until leaving the office at the usual time between 5-5.30 p.m.

On Sunday, 27th November 1994 the respondents each received a letter of dismissal, delivered by courier. They were barred from entering the Association's offices.

Thereafter each respondent presented an Originating Application to the Industrial Tribunal complaining of unfair dismissal.

By their Notices of Appearance the Association contended that the respondents had engaged in violent behaviour and had used furniture to erect a barricade to prevent entry by members of the committee. It was further contended that the respondents were taking industrial action and that such industrial action was contrary to law and therefore a breach of contract. Their behaviour, the Association contended, amounted to gross misconduct.

The Industrial Tribunal concluded that in the absence of any disciplinary hearing or investigation the dismissals were unfair. They also found that the three female respondents had contributed to their dismissal to the extent of 10%. They then went on to assess compensation in each case and made orders accordingly.

By a Notice of Appeal dated 14th May 1997, settled by solicitors, the sole ground of appeal taken was whether the Industrial Tribunal had failed to consider whether the respondents had no right to complain of unfair dismissal in circumstances where they were taking part in an unofficial strike or other industrial action within the meaning of s. 237(1) of the Trade Union Labour Relations (Consolidation) Act 1992.

The first question arising before us is whether this point was taken below. In the Notice of Appearance the Association had referred to "industrial action", but in the context of gross misconduct and breach of contract. We do not think that the jurisdiction point was properly taken in that 'home-made' pleading.

Before the Industrial Tribunal, we are told, the Association intended to appear by a volunteer Barrister. He apparently applied for an adjournment unsuccessfully before the date fixed for hearing, and then failed to notify the Association that they must make alternative arrangements for representation. In the event, nobody from the Association appeared.

In our judgment, the point was not taken below, and was not considered by the Industrial Tribunal, on a fair reading of their reasons.

It follows that the next question is whether the Association ought to be allowed to take the point for the first time on appeal. Miss Lang, who appears on behalf of the Association before us, submits that since it is a question going to the Industrial Tribunal's jurisdiction we should entertain the point. However, she accepts, in the light of the judgment of the Employment Appeal Tribunal in Russell v Elmdon Freight Terminal Ltd [1989] ICR 629, explaining House v Emerson Electric Industrial Controls [1980] ICR 795, and the later cases of Barber v Thames Television PLC [1991] ICR 253 and Leicester University Students Union v Mohammed [1995] ICR 270, that even although this point raises a question as to the respondents' right to bring complaints before the Industrial Tribunal, we nevertheless have a discretion as to whether or not we should permit the point to be taken for the first time.

The first matter to consider is whether it is possible for us to determine the point on this Industrial Tribunal's findings of fact. We think it is clear that the tribunal's finding was that the industrial action, if such it was, in which the respondents in each of them were taking part, if they were, consisted of a single day of action. There is no finding that it was intended to continue beyond that day, 25th November 1994. If this is correct, it is common ground that s. 237(1) does not apply, since the respondents were not taking part in industrial action at the time of dismissal, that is on Sunday, 27th November. On this basis the appeal must fail.

Alternatively, Miss Lang submits that there has been insufficient examination of the facts by the Industrial Tribunal, directed to the s. 237 point, for us to take a view on the merits of the appeal. It will therefore be necessary for the matter to be remitted to a fresh Industrial Tribunal for findings to be made.

In inviting us to exercise our discretion in favour of that course, Miss Lang submits that the Association has a sense of grievance because it was not able to advance its case below as a result of being let down by the volunteer who had agreed to represent it.

It may have a sense of grievance as against that volunteer, but that grievance cannot extend to the conduct either of the Industrial Tribunal or the respondents to this appeal.

On the other hand, as Mr Cuimei points out, first, this is an old case, the dismissals took place more than three years ago and it would be undesirable, unless absolutely necessary, for witnesses to have to go through the process of giving evidence again so long after the event.

Secondly, as he points out, the Association had their chance to have their say before the Industrial Tribunal and they failed to take it. The reason for that failure we have already referred to, but that is not a matter which assists the Association when it comes to the exercise of our discretion in permitting the new point to be taken.

Thirdly, and of particular importance we think, is this. Miss Lang tells us that she has no instructions on behalf of the Association to the effect that they will be able to lead any evidence before a fresh Industrial Tribunal in advancing the proposition that the industrial action, if so it be, extended beyond the day of action on 25th November 1994. In these circumstances, it seems to us, even if we were to remit the case, the inevitable finding would be that the industrial action had ceased at the end of that day. We certainly would not remit a case simply to give the Association an opportunity to cross-examine witnesses in the hope that something helpful might turn up.

The fourth point is that well-known expression "a second bite of the cherry". It is used in a pejorative sense in the cases and in our view can properly be so used in relation to this appeal. We think it would be quite wrong to afford the Association a chance to undo what has happened in the past and have a second hearing in all the circumstances of this case.

For these reasons, we decline to exercise our discretion in favour of the Association, and it follows that this point will not be entertained and therefore that the appeal must be dismissed.