United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS L CAMERON (Representative)
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal from the order of the Registrar dated 22 July 1998 refusing an application for a review made by the Appellant 734 days out of time.

The Appellant has been represented by his wife, Mrs Cameron, in relation to a long-running set of proceedings brought by him against his former employers, Digital Equipment Co Ltd, the Respondents to this appeal. The Respondents have not appeared at the hearing of this appeal, but have asked me to take into account written submissions contained in their letter of 19 October 1998.

The background to these proceedings is to be found in the judgment of the Employment Appeal Tribunal, Mummery LJ presiding, which was given on 28 June 1996. There is no suggestion on this appeal that, in relation to the first part of the Employment Appeal Tribunal's judgment any error has been shown, and accordingly I adopt without setting it out here, everything that is said between pages 1 to typescript page 6, letter D, in this judgment.

The main ground on which the application for a review has been made is based upon a judgment which was recently given by the Court of Appeal, Mummery LJ giving the leading judgment in a case called Dattani v The Trio Supermarkets Ltd [1998] IRLR 240. In order to understand this point it is necessary to say something more about the original proceedings.

The Industrial Tribunal had concluded that the doctrine of estoppel prevented Mr Cameron from pursuing a second claim for unfair dismissal and redundancy. The circumstances in which they concluded that the doctrine of estoppel arose are these. On 20 April 1990 Mr Cameron had presented an IT1 claiming unfair dismissal and denying that there were any good reasons for his dismissal, as alleged, namely misconduct. The alleged misconduct was a failure to attend work.

Shortly before the proceedings were due to be heard by an Industrial Tribunal Mr Cameron's then solicitors wrote withdrawing his claim and stating that proceedings would be brought in the High Court for wrongful dismissal within the course of the next few days.

On 9 November 1990 the Industrial Tribunal made an order dismissing Mr Cameron's proceedings on their withdrawal. High Court proceedings for wrongful dismissal were eventually started on 4 August 1993.

On 24 May 1994 Mr Cameron presented a second Originating Application to the Industrial Tribunal claiming unfair dismissal and redundancy against his former employers. He recognised that his application was out of time and advanced as the main grounds of his application the following:

Firstly, the reasons given by Digital for his summary dismissal were not the true reasons. From additional papers, which had not previously been disclosed but only were disclosed in the High Court proceedings in April 1994, it appeared that the true reason for his dismissal was redundancy and not misconduct and that he could now prove that, whereas previously he could not because he did not have knowledge of the documents which should have been disclosed but were not. Redundancy had not been an issue in the 1990 proceedings. He did not know that the Enterprise Design Group to which he belonged had been disbanded and that Digital and their associated employers had published a voluntary redundancy package.

There was a Notice of Appearance filed on behalf of the employers in June 1994 saying that, as Mr Cameron's employment had terminated in February 1990, the Tribunal had no jurisdiction to hear his claim and secondly, being his second application, it was an abuse of the process as his previous application had been withdrawn and dismissed.

The Industrial Tribunal accepted both submissions made by Digital. Firstly, they said that Mr Cameron was estopped by reason of the dismissal of his claim in 1990 from presenting a further application to the Tribunal based on the same dismissal. Alternatively, his claim was out of time and it was reasonably practicable for it to have been presented within time and that, in any event, in so far as his unfair dismissal claim was based on the allegation that redundancy was the real reason for his dismissal, he had knowledge of that by 21 January 1991 and he had not brought his application within such further period as the Tribunal considered reasonable. They also made some findings in relation to the claim for redundancy and concluded that he could have acted more promptly than he did and that it was not just and equitable that he should now be entitled to proceed with his claim.

In giving the judgment of this Court, the learned President concluded that the Industrial Tribunal had not erred in law in applying the doctrine of estoppel to prevent Mr Cameron from pursuing a second claim. The Employment Appeal Tribunal made reference to the Court of Appeal's judgment in Barber v Staffordshire County Council [1996] IRLR 209. The EAT concluded:

"In this case a claim was made and withdrawn by Mr Cameron. It was a claim for unfair dismissal. If he wished to claim for redundancy, he should have done so at the same time or, at the very latest, in January 1991 when the solicitors wrote the letter already mentioned. There are no special circumstances displacing the principles of estoppel. The fact that stronger evidence has been obtained subsequently (ie the documents disclosed on discovery in April 1994) does not constitute a special reason for departing from the doctrine of estoppel."

Secondly, in relation to unfair dismissal and time limits, the Employment Appeal Tribunal concluded that:

"The documents discovered in April 1994 were evidence which confirmed that belief [namely, the belief that he had been dismissed by reason of redundancy and that his employers had concealed the true reason for his dismissal]. In our view, there is no error of law in the Industrial Tribunal's decision that, even assuming that it was not reasonably practicable to advance that ground of complaint within 3 months of dismissal, he was aware of the redundancy ground by 21st January 1991 and did not bring his application within such further period as the Industrial Tribunal considered reasonable ... "

In relation to the redundancy time limit point, the Employment Appeal Tribunal concluded that:

"The Industrial Tribunal were, in our view, entitled in all the circumstances to conclude that it was not just and equitable that Mr Cameron should receive a redundancy payment. There is no error of law in the Tribunal's exercise of discretion on that point. Nor was there any error of law in the alleged omission of the Tribunal in their decision ... "

What Mrs Cameron submitted to me was that the judgment in Dattani showed that the Employment Appeal Tribunal's judgment given in 1996 was erroneous in law because there could not be a true estoppel on the facts of this case. I can say at once that I regard that submission as misconceived. In Barber v Staffordshire County Council, to which the EAT had made reference, the Court of Appeal held that the dismissal by an Industrial Tribunal of a claim on withdrawal by the Applicant, was not a mere administrative act but amounted to a judicial decision and was thus subject to the doctrine of cause of action estoppel.

In Dettani v Trio Supermarkets Ltd, on the other hand, the Industrial Tribunal had made no order dismissing the application following the settlement of an unfair dismissal complaint. Instead, the Industrial Tribunal simply recorded in a document headed "Decision" that:

"This case has been settled on the basis that the Respondent pay the Applicant the sum of £5,000."

As Mummery LJ observed, that was not a decision falling within the meaning of the rules of procedure of an Industrial Tribunal and therefore, the doctrine of issue estoppel did not apply. Accordingly, the agreement that was entered into between the parties, on the facts of that case, did not prevent the Applicant from proceeding with the claim in the County Court for unpaid wages.

It follows, as it seems to me, that there is no inconsistency between the decision in Dattani and the decision in Barber. This case is a Barber case rather than a Dattani case and accordingly, Mrs Cameron's first plank in her appeal was, in my judgment, misconceived. She was of the view, in my view, wrongly, that the Dattani decision casts some doubt on the Barber decision and, therefore, on the judgment of the Employment Appeal Tribunal given in this case.

The second point she makes relates to new evidence which she says has emerged, as a result of further applications for discovery, in the High Court proceedings. I pointed out to her that when discovery is made in an action it is subject to the implicit undertaking of the party, in whose favour the order is made, that the documents so disclosed will be used, and used only, in connection with the proceedings in which the order for disclosure was made and that no reference should be made to them for any other purpose without leave of the Court. But that said, I was prepared to listen to what she had to say, to see whether this was a case where she should apply to the High Court for permission to refer to these documents in support of her application for a review. I am satisfied that there is no merit in the points that she is making under this head either.

Essentially, and I summarise what she is saying, her allegation is that the new evidence shows that Digital's Personnel Policy and Procedure manual was a contractual document and that cast doubt on the company's stated position in the Employment Tribunal that the manual was non contractual.

It seems to me that that is a wholly tenuous basis for suggesting that there has been an error made, either by the Employment Tribunal or the by the Employment Appeal Tribunal. Whether in the High Court proceedings she will be able to persuade a court that Digital have lied, as she would put it, over the contractual documents is of course another matter. But as a ground for suggesting that the interests of justice require a review of a decision of this Court made as long ago as 1996, then in my view this revelation, as she would see it, carries no real weight. Similarly, her reference to the employer's master file and the difference between the documents in such a file or the documents in his Personnel Policy file seem to me not to have any substance either.

What is happening in this case is that Mrs Cameron is seeking to play off, one against the other, the proceedings which are commenced in the High Court against the proceedings which have been commenced in the Employment Tribunal, hoping to use the discovery process to show that errors have been made in the other set of proceedings. That, in my view, is not a proper way of proceeding. I have no doubt at all, in this case, that the learned Registrar was correct to refuse to allow a review of the decision so long after the event. Nothing that has happened since the decision was given causes me any doubt about the correctness of the decision, as it was given by the Employment Appeal Tribunal.

Therefore, substantively and procedurally in my judgment, there are no grounds for granting this review and I therefore refuse this appeal. It will be dismissed.