United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Mr Gill	MR A FREER (Solicitor) Legal Department GMB 22-24 Worple Road London SW19 4DD
For Dormer Wells Infant School	MS C WOODHEAD (Representative) The Legal Protection Group Ltd Marshall's Court Marshall's Road Sutton Surrey SM1 4DU


 


LORD JOHNSTON: When these two cases, that is to say the appeal at the instance of Mr M Gill against the Dormer Wells Infant School and a cross-appeal at the instance of the School against Mr Gill were called before us this morning, we were under the impression that both would be heard, but we were informed that due to some procedural misunderstandings, Ms Woodhead who appeared on behalf of the School was not under the impression that their appeal was to be heard this morning and indeed might well have stood as abandoned. Mr Freer who appeared for Mr Gill explained to us how the situation had arisen. It appears to be the case that, as a matter of procedural history, once the Originating Application had been made at the instance of Mr Gill to the Industrial Tribunal London (North) Region claiming unfair dismissal from his employment with the School, the School sought a preliminary hearing in respect of jurisdiction, having regard to the fact that at the time of dismissal Mr Gill was over the age of 65 and accordingly was not entitled to claim, in terms of the legislation, that he had been unfairly dismissed because of his age.

At the hearing in respect of the preliminary issue the tribunal ruled that the jurisdictional question should be decided in favour of Mr Gill on the basis that they were satisfied that he could legitimately regard his normal retirement age as beyond 65. That is a paraphrase of their decision. More or less immediately, however, the Chairman issued a notice that he intended to review that decision, which notice was issued on 19th March 1997:

"The grounds for Review is because the Chairman's attention was not drawn to the case of Dixon v London Production Tools Limited [1980] IRLR 385."

In due course, a hearing took place in respect of that review at which both parties were represented, the hearing taking place on 3rd December 1997, and the decision thereof being sent to the parties on 20th February 1998. In its reasons in relation to that particular hearing, the tribunal determined that it was in the interests of justice that the review should be carried forward and that the case should be reviewed because Dixon v London Productions Tools Ltd had not been brought to their attention. Thereafter in a very brief statement the tribunal clearly felt itself bound by that case in as much that having regard to the fact that Mr Gill had:

"attained the age of 65 and accordingly it is our view that the Applicant is excluded from making a complaint of unfair dismissal by reason of the provisions stated above."

Against that decision Mr Gill through Mr Freer appeals to this tribunal. He does so on two essential basis. First of all he submits that, having regard to the Regulation in the tribunal rules, namely Regulation 11, which entitles parties to seek a review of a tribunal decision, or for a Chairman to order one ex proprio motu, the basis upon which this particular decision was sought to be reviewed as stated in the intimation, was not properly to be regarded within the scope of the review procedure, it being submitted that if this was an error, it was of law not falling within the scope of those particular regulations. This submission was buttressed by Mr Freer by reference to the case of Trimble v Super Travel [1982] IRLR 451 where he focused upon the opinion of Browne-Wilkinson J. where in paragraph 6 and 7 of the decision he draws the distinction between errors of law in relation to a decision of an Industrial Tribunal which must be a matter of appeal to the Employment Appeal Tribunal, and procedural errors within the confines of the process which led to the decision which are legitimately the subject of review. In particular, Mr Freer submitted that subsection (b) of the Regulation 11(1) which states:

"the interest of justice requires such a review"

was not an all embracing provision, but merely a winding up operation in relation to the other four sections of the Regulation which indicated quite clearly that review was concerned with procedural errors or defects.

Assuming that we were not persuaded on that point, Mr Freer went on to argue that in any event the case of Dixon supra was nothing to the point since properly understood it did not relate to the facts of this case and in any event had been overtaken by authority of the highest level in the House of Lords with particular reference to the case of Waite v The Government Communication Headquarters [1983] IRLR 341 as further elaborated again by the House of Lords in the case of Department of Social Security v Hughes [1985] IRLR 263. In essence his submission was that the case of Dixon was concerned solely with the person who was already over the age of 65 when he started his employment and therefore did not bear on the major question which was focused by both Waite and Hughes, namely where there may be provisions in a contract which lay down "a normal retiring age" those provisions raise only a presumption which can be rebutted upon the evidence in appropriate cases that the employee in question either was proceeding upon an assurance of a particular retiring age to be treated a normal, or had a legitimate expectation as to what that normal retiring age might be, always depending upon the facts of each case. Thus, Mr Freer submitted that the tribunal Chairman should not have paid any attention to the case of Dixon and that accordingly the review procedure was flawed and was nothing to the point in the already unfortunate protracted process of this particular dispute.

In reply, Ms Woodhead indicated that it was implicit if not express in the Regulations that the tribunal Chairman was entitled to order a review of his own decision if he considered it to be in the interests of justice to do so and that while that particular phrase did not appear in the Notice of Review, that was clearly what he was doing when he proceeded to decide the review matter after the hearing. It was open to him to review his own error, and that being so, there was no reason why it should not regarded as a procedural defect within the rules laid down by Browne-Wilkinson J. in Trimble. In any event, she invited us not to follow that case since it was not binding on this tribunal being yet another decision of it. It was, she submitted, always open to a Chairman under the review procedure to correct his own errors if he perceived them to exist. She then went on to argue that in any event normal retiring age was something to be determined by reference to the contracts of employment and that in this particular case it was difficult to see how a single person could have normal retiring age based on what he might have been told. However she recognised that at that stage she was entering into the area which is in fact encompassed by the issue originally heard before the Industrial Tribunal which was decided in favour of Mr Gill and against which the School has brought the appeal which is still outstanding.

In seeking to decide this matter, we would recognise at once the distinction that Browne-Wilkinson J. makes in Regulation 11 as between errors of procedure on the one hand, and errors of law on other. The former being legitimately subject to review, the latter being only a matter of appeal to the Employment Appeal Tribunal. We would agree with Mr Freer the phrase "in the interests of justice require such a review" does not extend to widening the scope of the provision beyond procedural irregularities or errors, but we also recognise that there is a grey area in which a Chairman may discover at his own volition or instigation, that he considers that he has made an error which may be in relation to his reasoning and he may therefore feel it legitimate to correct that error in order to achieve the result that he now thinks should occur. We would hesitate to lay down any hard and fast rule whether in any particular case that is an appropriate thing to do in terms of the Regulation each case depending very much on its own circumstances, and we therefore sympathise with the position of the Chairman in this case if he came to the view that he had made an error and thought he ought to rectify by it by the review process. We are not therefore prepared to categorise in the unusual circumstances of this case that embarking upon the review exercise was necessarily incompetent in terms of the Regulation, although we have grave doubts about that matter.

More importantly however, we are persuaded by Mr Freer that when reference is made by the Chairman to the decision of Dixon within the contents of the review, it is clear that the case of Dixon is nothing to the points and should not have influenced his decision. It does not bear upon the facts of this case as found, and therefore, should be left out of the equation. The appropriate authorities are plainly Waite and Hughes to which we have made reference, and the issue in this case therefore has to be focused upon whether or not upon the evidence the Industrial Tribunal initially were entitled to conclude that the presumption to which Lord Fraser refers in Waite was rebutted upon the evidence. This is the issue which the appeal at the instance of the School focuses upon and which quite understandably in the circumstances Ms Woodhead was not in the position to argue this morning. We therefore offer no view as to whether or not a valid appeal lies on a matter of law against the original decision of the Industrial Tribunal since that has to be properly argued. What is clear is that the Chairman on the face of the reasons given in the Review misdirected himself in law, and the process is therefore fatally flawed.

In the foregoing circumstances, it is the decision of this tribunal that the appeal in relation to the review will be allowed and that process will be quashed. The result of that is that the original decision of the Industrial Tribunal stands. In that respect, we have been informed by our Clerk that the appeal at the instance of the School against that decision has not in fact been abandoned and is still before this tribunal. That being so there is no need for us to grant leave for a further appeal to be made, although it had been necessary, we would have granted it. The procedural position is, therefore, that there remains current before this tribunal the appeal at the instance of the School against Mr Gill, and that will be submitted as soon as possible in view of the time delay to a preliminary hearing in order to determine whether it should go forward to a full hearing. That is the decision of this tribunal.