United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THACKER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY: We have before us as a preliminary hearing of the appeal of Mr R.M. Childs in the matter R.M. Childs against Evans & Sutherland Computer Limited.

There was a hearing in front of the Chairman alone on 12 November 1998 and that led to a decision that was promulgated on 2 December and the decision was:

"1. There was no unlawful deduction from the Applicant's wages.

2. The Applicant do pay to the Respondent the sum of £5,572.82 in respect of the Respondent's counter-claim."

Mr Childs was in person below but here he has had the assistance of Mr Thacker under the ELAAS scheme and we are very grateful for the assistance which he has given. Mr Thacker has invited us to treat as abandoned Mr Child's Notice of Appeal and we think that was a correct decision to make. We have, of course, read the papers with the Notice of Appeal in mind and we were quite unable to find any point of law which would have served Mr Childs in any useful way. The point that is taken today is the point developed out of a recent case called Sogbetun that concerns the composition of the Tribunal. As we mentioned, this was a case heard before the Chairman alone and the first paragraph of the extended reasons says this:

"1. In sitting alone under Section 4 of the Employment Tribunals Act 1996, I consider that there is no likelihood of a dispute arising on the facts or other matters arising which render it desirable to have a full Tribunal of three members."

The composition of the Tribunal is regulated by Section 4 of the 1996 Act. One starts off, in effect, with a general provision that there should be three members but then there are classes of business which in the ordinary way have only the Chairman and amongst those classes are claims in respect of damages for breach of contract. The class that ordinarily only has one member, the Chairman, hearing it; it is nonetheless prefaced by the words "subject to subsection 5 " and subsection 5 gives a Chairman who is to hear one of those Chairman alone matters, a discretion. It says:

"Proceedings specified in subsection (3) shall be heard in accordance with subsection (1) [that is to say as a three person Tribunal] if a person who, in accordance with regulations made under section 1(1) may be the chairman of an industrial tribunal, having regard to -

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),

(b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),

(c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

(d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),

decides at any stage of the proceedings that the proceedings are to be heard in accordance with subsection (1)."

The position is therefore that the Chairman who is faced with a matter which he is entitled or, indeed, required to consider on his own can, as a matter of discretion, say "No, this is appropriate for three people" in the circumstances that are there described.

Mr Thacker tells us that the Chairman did raise with the parties below the question of whether it should or should not be agreed that it should be the Chairman alone and Mr Childs, then in person, agreed that it should be the Chairman alone and presumably the other side did too, and, as we have read the decision, the Chairman considered that there was no likelihood of a dispute arising on the facts which rendered it desirable to have a full Tribunal with three members. We cannot upset that discretion unless it is shown that the Chairman took into account material which he should not have taken into account, failed to take into account material which he should have taken into account, or came to some conclusion to which no Chairman properly instructing himself or herself could have arrived. We remain quite unconvinced that any of those three possibilities is here shown. The fact, if it was the case (which itself may be disputed) that in the course of the hearing it transpired that there were facts in dispute is not of itself an indication that the Chairman at the beginning of the case had exercised his discretion wrongly. It quite often happens that a case does not pan out in the way the parties first thought it would. That, of course, does not make discretion exercised at the beginning improper.

Doing the best we can, we see no ground for treating the exercise of the discretion of the Chairman in continuing to regard this as a matter fit for one only as in any way flawed and accordingly we dismiss the appeal even at this interlocutory stage, but we do add that we did consider the other grounds that Mr Childs had raised and, even had they been vigorously pursued, we think it likely that they too would in any event have led to no arguable point of law and so we dismiss the appeal even at this preliminary stage.