United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M FORD (of Counsel) Instructed By: Ms V Phillips Messrs Thompsons (Solicitors) Congress House Great Russell Street London WC1B 3LW
For the Respondents	MR S WILSON (of Counsel) Instructed By: Messrs Lawrence Graham (Solicitors) 190 Strand London WC2R 1JN


 


MR JUSTICE MORISON: This is an appeal against the Tribunal's decision on 28 September 1998. By that decision, the Tribunal held that the Applicant, Mr Pittaway, was not entitled to a special award under section 157 of the Trade Union and Labour Relations (Consolidation) Act 1992, which I will refer to hereafter as the 1992 Act. The reason why they refused to make a special award was because they held that it was a prerequisite for making such an award, that the Applicant had made a request in his IT1 for reinstatement or re-engagement and that as he had not done so, he was not entitled to such an award.

1. The position is this. The Applicant had made an application to an Employment Tribunal alleging that he had been discriminated against and dismissed on grounds of his membership of the GMB Union. He presented his complaint on 8 September 1994 against his former employers. He was invited to complete box 11 of the IT1 which at that time, read like this:

"11. Unfair Dismissal claimants only [he was one such] (Please tick a box to show what you would want if you win) [and then some words obscure, but there are three boxes]

1. Reinstatement

2. Re-engagement

3. Compensation".

It says underneath:

"You can change your mind later. The Tribunal will take your preference into account but will not be bound by it."

2. The case was contested on liability. It was the employers position that they had not dismissed the Applicant by reason of his trade union membership as he had alleged. But the Tribunal, in a decision which was promulgated on 30 September 1997, upheld the complaint and rejected the defence that had been advanced on behalf of the then Second Respondents, the Respondents to this appeal, Street to Street Ltd. The circumstances in which the dismissal came to be effected and the reasons for the Tribunal's decision that the dismissal was by reason of trade union membership do not need to be considered, because this appeal relates solely to the refusal by the Employment Tribunal to make a special award.
3. Prior to the remedies hearing, but after the decision on liability had been determined, solicitors acting for the Applicant indicated that the Applicant was applying for an order for reinstatement or re-engagement pursuant to section 157 of the 1992 Act. Section 157 of the 1992 Act provides:

"(1) Where an employment tribunal makes an award of compensation for unfair dismissal in a case where the dismissal is unfair by virtue of [and then the sections are specified and the one in question is 152(1), namely where the dismissal was for the reason that he was a member of a trade union] then, unless –

a) the complaint does not request the tribunal to make an order for reinstatement or re-engagement, or

b) the case falls within [section 121 of the Employment Rights Act 1996] (cases where employer takes requisite steps to renew employment or re-engage employee),

the award shall include a special award calculated in accordance with section 158."

4. Section 158 defines the amount of a special award, which where an order for reinstatement or re-engagement has been made but is not complied with, may include an extra special award in accordance with section 158, subsection 2.
5. Thus, the reasoning of the Employment Tribunal was that the 'complaint', that is the IT1, did not request the Tribunal to make an order for re-instatement or re-engagement, and presumably, it was not sufficient for the employee, through his solicitors, to have given advance notice prior to the remedies hearing that he was now seeking an order for instatement or re-engagement.
6. But the Act was incorrectly reproduced. The words in section 157 1(a) are not, although they appear in Butterworths and in other publications, "the complaint does not request", and indeed those words don't make much sense. The true words are "the complainant does not request the Tribunal to make an order for re-instatement or re-engagement". The whole basis therefore, of the Tribunal's decision was false. They were relying on a copy of the Act, which did not truly represent what Parliament had said. There was an error in transmitting the bill to the Queen's Printer, which had to be corrected through a process, known to Parliament. It is clear, and should be known for future reference, that the word "complaint" in section 157 1(a) should read "complainant".
7. That being so, it seems to us that we should now ask the question whether it makes a difference to the result of the case. The mere fact that they relied on the wrong word does not itself mean that the decision was wrong. It seems to us, perfectly clear, that the decision was wrong for the reasons which we will endeavour to give.
8. The scheme of the legislation in terms of remedy in unfair dismissal cases, is contained in chapter 2 of the 1996 Act. Section 111, in chapter 2, refers to complaints to Employment Tribunals. A complainant makes his claim by presenting to an Employment Tribunal a complaint, or IT1, that he was unfairly dismissed by his employer. Section 112, headed "Remedies, orders and compensation" in subsection 1, applies where on a complaint under section 111, an Employment Tribunal finds that the grounds of the complaint are well founded, as in this case. The Tribunal is required then to explain to the complainant, that is the person who presented the IT1, what orders may be made under section 113 and in what circumstances they may be made, and to ask the complainant whether he wishes the Tribunal to make such an order. It then provides that if the complainant expresses such a wish, the Tribunal may make an order under section 113, but that if no order is made under section 113, then it shall make an award of compensation.
9. The orders referred to in section 113, are an order for re-instatement or an order for re-engagement as the Tribunal may decide. Section 116 of the Act says that in exercising its discretion under section 113, the Tribunal must first consider whether to make an order for reinstatement and shall take into account, (a) whether the complainant wishes to be reinstated. If it does not make a reinstatement order then it will consider the question of re-engagement and in doing so, the Tribunal shall take into account any wish expressed by the complainant as to the nature of the order to be made; that is subsection 3 of section 116.
10. The scheme of the legislation seems to us to make it quite clear that, whatever has been filled in, if anything, in box 11 (as it then was), the Tribunal must invite the complainant to express his wish as to reinstatement or re-engagement or compensation in default at the Tribunal hearing. It is clear that that must have been the policy intended, because Parliament must have recognised that at the time when the IT1 was presented, the circumstances of the Applicant may then have prompted him to put in a claim for compensation, whereas by the time the case came on for hearing, and he had succeeded on liability, his circumstances were such that he decided to seek an order for reinstatement or re-engagement. And as box 11 made clear, he was entitled to change his mind.
11. In those circumstances, in the normal course of events, after the decision on liability, a successful applicant in an unfair dismissal case, which this was, was to be given the opportunity to express his wish at that time as to what orders should be made. So far, in the end, there was no dispute between the parties that that was so.
12. In relation to section 157 of the Act, it is to be noted that the special award is triggered whether or not it was practicable for the Tribunal to make an order for reinstatement or re-engagement. It is the request to the Tribunal for such an order, that triggers the entitlement to the special award. That special award is granted, as I say, whether or not an order for reinstatement is practicable. If an order for reinstatement or re-engagement is not in fact made by the Tribunal, then they are obliged to make a special award but would not then have to consider whether an extra special award should be made for a refusal to comply with an order for reinstatement or re-engagement.
13. The question arises from the submissions which were put forward with, if we might respectfully say so, distinction by Mr Wilson on the employers behalf, whether the words "the complainant does not request the Tribunal to make an order for re-instatement or re-engagement" mean, in effect, the complainant does not request the Tribunal to make such an order in his IT1. He says that there is a distinction to be drawn between making a request of the Tribunal that an order should be made, and expressing a wish that such an order should be made. He says that the words in section 157 (1) should be construed in exactly the same way as section 118(2)(a), which refers to a special award in other circumstances which itself is dependant upon the complainant requesting the Tribunal to make such an order.
14. He therefore says that there are two regimes in existence. One, what might be described as the 'wish for an order' to be made, and one which is 'a request of the Tribunal that an order be made' and that whilst the wish can be expressed at the Tribunal hearing, the request must be made in the IT1, else the special award will not be granted.
15. This is, if we might respectfully say so, an ingenuous argument in an obvious attempt to escape the difficulty that arose as a result of it becoming clear that there was an error in transmitting Parliament's intention to the Queen's Printer, and by reason of the fact that the copies of the legislation that are in current use by the Employment Tribunal and by the Employment Appeal Tribunal, are defective. His argument is that the words "the complaint does not request the Tribunal" actually is the essence of this matter, because although it says "the complainant does not request the Tribunal" what it really means is that the complainant does not in his complaint request the Tribunal.
16. We have to say that we see no reason for construing the section 157 (1)(a) in the manner suggested by Mr Wilson. The words themselves says "the complainant does not request the Tribunal" are perfectly apt to cover a position where the complainant is expressing his request after he has won the case on liability, and at the same time that he is expressing his wish under the parts of the Act to which we have referred. Indeed, it would appear to us, that section 118 (2) links in a complainant's request to section 113 of the Act, which itself demands that the Tribunal should take into account the complainant's wishes.
17. If follows therefore, in our judgment, that there is no distinction properly to be drawn between a complainant requesting the Tribunal to make an order for reinstatement or re-engagement, or not, under section 157 (1) or under 118 subsection (2)(a) and the expression of a wish by a complainant under section 116 (1) and under 116 (3). Therefore it seems to us, that the Tribunal have erred in law.
18. We were not persuaded that we should follow the decision of the Employment Appeal Tribunal in Ireland v Northern Courier Services Ltd because the Court on that occasion did not have before it the correct version of the statute. What it said thereafter, postulated on a false basis, seems to us to make the decision properly to be described as per incuriam. Accordingly, we are of the view that it is unrealistic to contend that there is in the statutes a two-tier process with requests for reinstatement being made at the first stage, and wishes for reinstatement being made at a second and later stage, with the obvious confusion that that could cause. We wish to use this judgment as an occasion to stress to Employment Tribunals their need in every unfair dismissal case, where the complainant has succeeded, to go through part 2 of the statute in the sequence which the statute has dictated, so that in every case, the employee is invited to express his wish as to whether he wishes to be reinstated or re-engaged, and for them to consider that potential remedy before moving on to compensation.
19. That being so, it seems to us that there can only be one consequence, which is that the Applicant is entitled to a special award calculated in accordance with 158 subsection (1) and we so order. It is a peculiar feature of this part of the legislation, that asking for reinstatement will act as the trigger for a special award and as one of the commentators has put it, Applicants would be well advised in every such case as this to include a claim for reinstatement in their IT1, so as to trigger their entitlement. Mr Wilson also submitted that the section could be open to abuse. If the mere fact that an application for re-instatement has been made triggers an additional award, applicants who do not genuinely want to be re-instated will make such an application. Therefore, the Tribunal would, at least, have to be satisfied that the request was made genuinely. In this case, either the Tribunal has accepted that the application for re-instatement was not 'genuine' or they should be given the chance to consider the issue. We disagree. If an employee was not making a bona fide application for re-instatement it could say so. In this case the Tribunal have made no such finding and we see no reason why the matter should be remitted back for them to consider an argument and pursue a factual inquiry which had not previously been raised.
20. There is nothing in the policy of the legislation, which suggests that an employer will be disadvantaged by the construction that we have adopted. It seems to us, that employers will know perfectly well right from the outset, that there is a risk that the employee will, at the hearing, ask for an order for reinstatement if they wish to contest the case on liability. So be it, but they run the risk that if they lose, then a special award will become payable. In those circumstances we will give the judgment that I have indicated – we substitute an award of £20,800.
21. I have been asked for leave to appeal by Mr Wilson. The reason why we refuse that application is because in our judgement, such an appeal is hopeless having regard to the structure of the legislation and the intention of Parliament. Once it becomes plain that there has been a problem with the provisions of the statute, and that the word "complaint" should read "complainant", Mr Wilson's position is, in our judgment, simply unsustainable although we congratulate him for having sought to sustain an argument in relation to it. It seems to us therefore, quite wrong for us to assume that the Court of Appeal would be interested in such a submission. I believe that it would be a waste of their time for any further effort to be spent in relation to this hopeless point.